THE EXECUTIVE DEPARTMENT (continuation)

SUSPEND THE WRIT OF HABEAS CORPUS ............................................................................2

DAVID E. SO VS. HON. ESTEBAN A. TACLA, JR. (G.R. No. 190108, October 19, 2010) ......2
PROCLAIM MARTIAL LAW OVER THE ENTIRE PHILIPPINES OR ANY PART THEREOF ....9
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
VS. BRIGADIER-GENERAL EDUARDO M. GARCIA (G.R. No. L-33964, December 11, 1971)
..................................................................................................................................................9
B/GEN. (RET.) FRANCISCO V. GUDANI VS. LT./GEN. GENEROSO S. SENGA (G.R. NO.
170165, August 15, 2006) .......................................................................................................31
PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006) .................................................................................................................................42
SANLAKAS VS. EXECUTIVE SECRETARY (G.R. No. 159085, February 03, 2004) .............77
DISTINCTION BETWEEN COMMANDER-IN-CHIEF AND EMERGENCY POWERS...............87
PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006) .................................................................................................................................87
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-GENERALE VS.
HON. RONALDO PUNO (G.R. No. 190259, June 07, 2011) ................................................122
CONTRACTING AND GUARANTEEING FOREIGN LOANS ..................................................126
SPOUSES CONSTANTINO VS. HON. JOSE B. CUISIA (G.R. NO. 106064, October 13,
2005) .....................................................................................................................................126
TREATIES OR INTERNATIONAL AGREEMENTS VS. EXECUTIVE AGREEMENTS ...........137
SENATOR AQUILINO PIMENTEL, JR. VS. OFFICE OF THE EXECUTIVE SECRETARY
(G.R. No. 158088, July 06, 2005)..........................................................................................137
QUA CHEE GAN, ET AL. VS. THE DEPORTATION BOARD (G.R. No. L-10280, September
30, 1963) ...............................................................................................................................142
GO TEK VS. DEPORTATION BOARD (G.R. No. L-23846, September 09, 1977)................147
COMMISSIONER ANDREA D. DOMINGO VS. HERBERT MARKUS EMIL SCHEER (G.R.
No. 154745, January 29, 2004) .............................................................................................150
(11) POWER OVER LEGISLATION, (C) VETO POWER ........................................................166
CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE LEUTERIO, ET AL.
VS. HON. FRANKLIN N. DRILON (G.R. No. 103524, April 15, 1992) ..................................166
(13) IMMUNITY FROM SUITS..................................................................................................180
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO VS. GLORIA MACAPAGAL-ARROYO
(G.R. No. 183871, February 18, 2010)..................................................................................180
PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006) ...............................................................................................................................190
JOSEPH E. ESTRADA VS. ANIANO DESIERTO (G.R. Nos. 146710-15, March 02, 2001) .225
SUSPEND THE WRIT OF HABEAS CORPUS

DAVID E. SO VS. HON. ESTEBAN A. TACLA, JR. (G.R. No. 190108, October 19, 2010)

RESOLUTION

NACHURA, J.:

Before us are consolidated petitions:

(1) A petition for the writs of habeas corpus and amparo against Judge Esteban A. Tacla, Jr.
(Judge Tacla) of the Regional Trial Court (RTC), Branch 208, Mandaluyong City, and Dr.
Bernardo A. Vicente (Dr. Vicente) of the National Center for Mental Health (NCMH), docketed
as G.R. No. 190108; and

(2) G.R. No. 190473, which is a petition for review on certiorari under Rule 45 of the Rules of
Court filed by the Office of the Solicitor General (OSG) on behalf of Judge Tacla and Dr. Vicente
of the NCMH, assailing the Resolution[1] of the Court of Appeals (CA) rendered in open court on
December 3, 2009, in the case docketed as CA-G.R. SP No. 00039.

The antecedents are:

Petitioner David E. So (So) in G.R. No. 190108 filed the petition for the writs of habeas corpus
and amparo on behalf of his daughter, Ma. Elena So Guisande (Guisande), accused of Qualified
Theft in the criminal case pending before Judge Tacla. Petitioner So alleged, among others,
that Guisande was under a life-threatening situation while confined at the NCMH, the
government hospital ordered by the RTC Mandaluyong City to ascertain the actual
psychological state of Guisande, who was being charged with a non-bailable offense.

Prior to the institution of the criminal proceedings before the RTC, Guisande was committed by
So for psychiatric treatment and care at the Makati Medical Center (MMC). Thus, the return of
the warrant for the arrest of Guisande, issued by Judge Tacla, stated that the former was
confined at MMC for Bipolar Mood Disorder and that she was "not ready for discharge," as
certified by her personal psychiatrist, Dr. Ma. Cecilia Tan.

Acting on the prosecution's Urgent Motion to Refer Accused's Illness to a Government Hospital,
Judge Tacla ordered Guisande's referral to the NCMH for an independent forensic assessment
of Guisande's mental health to determine if she would be able to stand arraignment and
undergo trial for Qualified Theft.

Subsequently, Judge Tacla, upon motion of the NCMH, ordered that accused Guisande be
physically brought to the NCMH, with NCMH Chief Dr. Vicente to have temporary legal custody
of the accused, and thereafter, Judge Tacla would issue the corresponding order of confinement
of Guisande in a regular jail facility upon the NCMH's determination that she was ready for trial.

Accused Guisande was confined at the NCMH Payward, Pavilion 6-I-E, instead of Pavilion 35,
Forensic Psychiatric Section, where female court case patients are usually confined at the
NCMH. In connection therewith, Dr. Vicente issued a special Memorandum on November 9,
2009, reiterating existing hospital policies on the handling of court case patients undergoing
evaluation procedures to foreclose any possibility of malingering[2] on the patient's part,
specifically patients accused of a non-bailable crime.

Eventually, claiming "life-threatening" circumstances surrounding her confinement at the NCMH

which supposedly worsened her mental condition and violated her constitutional rights against
solitary detention and assistance of counsel, accused Guisande and her father simultaneously,
albeit separately, filed a Motion for Relief from Solitary Confinement before the RTC
Mandaluyong City, and the present petition in G.R. No. 190108 for the issuance of the writs of
habeas corpus and amparo.

On the Motion for Relief filed with RTC Mandaluyong City, Judge Tacla issued the following
Order:

The Court rules to Grant accused's [Guisande's] motion subject to the condition that only the
accused's counsel and the accused' physician on her hypothyroid condition are allowed to visit
the accused in coordination with the respective psychiatrist/doctor of the NCMH taking charge of
the psychiatric examination upon accused.[3]

On the petition for habeas corpus and amparo, this Court issued a Resolution on November 24,
2009, to wit:

G.R. No. 190108 (David E. So, in Behalf of his Daughter Maria Elena So Guisande vs. Hon.
Esteban A. Tacla, Jr., Regional Trial Court of Mandaluyong, Branch 208, Dr. Bernardo A.
Vicente, National Center for Mental Health). - Acting on the Petition for Writs of Habeas Corpus
and Amparo, the Court Resolved to

(a) ISSUE a JOINT WRIT OF HABEAS CORPUS AND AMPARO;

(b) REFER the petition to the Court of Appeals, Manila, for (i) IMMEDIATE RAFFLE among the
Members of the said Court; (ii) HEARING on December 3, 2009, Thursday, at 10:00 a.m.; and
(iii) DECISION within ten (10) days after its submission for decision; and

(c) ORDER the respondents to make a verified RETURN of the Joint Writ of Habeas Corpus
and Amparo before the Court of Appeals, Manila, on December 1, 2009, and to COMMENT on
the petition before said date.[4]

As directed by this Court, Judge Tacla and Dr. Vicente appeared before the CA on December 1,
2009 and, in the afternoon, filed their Consolidated Return of the Writ.

On December 3, 2009, the NCMH submitted its Evaluation Report to the RTC Mandaluyong
City:

ASSESSMENT AND REMARKS:

Review of the history and clinical reports from Makati Medical Center revealed that Ma. Elena
So-Guisande was diagnosed and managed as Bipolar I Disorder. On the other hand, based on
a series of mental status examinations and observations at our center, she is found not
manifesting signs and symptoms of psychosis at the present time. Neither a manic episode nor
a severe depressive episode was manifested during her confinement at our center, despite
voluntarily not taking her medication is. Although she is complaining of mood symptoms, these
are not severe enough to impair her fitness to stand trial.

Ms. Guisande does have sufficient understanding of the nature and objective of the court
proceedings and the possible consequences of her cases. She is likewise capable of
communicating with her counsels.

She is therefore deemed COMPETENT to stand the rigors of court trial. (Emphasis
supplied.)

On even date, pursuant to the directive of this Court, the CA's Special Seventeenth Division held
a hearing. Thereafter, Justice Normandie B. Pizarro (Justice Pizarro), to whom the petition was
raffled, disposed, in this wise:

JUSTICE PIZARRO:

The essence of the deliberation this morning is on the proceedings that obtained pursuant to the
September 22, 2009 Order of the Regional Trial Court, Branch 208, Mandaluyong City. The
parties heard the arguments of the Petitioner on the right of the subject patient, Ma. Elena, to
avail of extended medical treatment citing the Constitution and the Geneva Convention on
Human Rights.

In the course of the proceedings this morning, Judge Tacla, Jr., informed this Court that the
NCMH submitted to him a report consisting of eight (8) pages at about 8:46 this morning. The
parties, specifically the petitioner, were shown the said report. Afterwards, Judge Tacla's opinion
on the matter was heard and he did not interpose any objection thereto. The Accused, subject of
this case, Ma. Elena So-Guisande, may now be discharged from the custody of the NCMH and
is considered fit for the rigors of trial. The parties were heard on the matter and all of them were
in accord with the dispositive portion of the aforesaid report.

After a prolonged discussion on the matter, and without objection on the part of the parties, as
the Accused should now proceed to trial in accordance with law, and at the same time
recognizing the right of the Accused to avail of further medication, this Court decrees the
following set up that should cover this proceedings: The trial of this case shall resume and
the arraignment at the Court a quo shall push through as originally scheduled on
February 2, 2010. To balance the situation, the right to seek medical treatment of the
subject is hereby recognized by all and the patient shall be confined at the St. Clare's
Medical Center, 1838 Dian St., Palanan, Makati City, her hospital of choice, under the
headship of Dr. Yat, subject to the twenty-four (24) hour custodial control of the NBI.

xxxx

JUSTICE PIZARRO:

Dr. Yat is directed to submit, again by agreement of the parties, a periodic report every fifteen
days to the RTC, Branch 208, for its evaluation. The first report shall be submitted on or before
December 18, 2009.

In this regard, the Director Nestor M. Mantaring of NBI is politely DIRECTED to cause the
transfer from NCMH to the St. Clare's Medical Center of the subject Accused, Ma. Elena So-
Guisande, and to provide two (2) or three (3) security personnel to the Accused after making the
proper coordination with the RTC, Branch 208. Director Mantaring is to submit a one (1) page
compliance on the matter within three (3) days from receipt of this Resolution - furnishing Judge
Tacla, Jr. a copy thereof.

xxxx

It is understood that the case pending before RTC, Branch 208, involves a non-bailable offense
where normally the Accused should have been confined in jail. But considering the peculiarities
of this case, the parties have all agreed to the set up as provided in this Order. It is also
understood by the parties that henceforth the control of the trial proceedings as well as the
control over the custody of the accused/patient shall be in the hands of the Regional Trial Court,
Branch 208, Mandaluyong City.

STATE SOL. DE VERA:

Your honor, the Hospital fees to be settled before the transfer, Your Honor.

JUSTICE PIZARRO:

As committed in open-Court, Atty. Carpio shall insure the settlement of the fees for the
confinement of Accused/patient at the NCMH, as a pre-condition for her release therefrom.

WHEREFORE, the foregoing considering considered, this petition for Habeas Corpus and
Amparo is considered CLOSE and TERMINATED. All parties are notified in open court of this
Order.

xxxx

JUSTICE PIZARRO:

Let copies of this Order be furnished the RTC, Br. 208, Mandaluyong City, the Director of the
National Bureau of Investigation as well as the Supreme Court, and all the parties.

SO ORDERED.[5]

Hence, the petition for review on certiorari, docketed as G.R. No. 190473, filed by the OSG,
which was consolidated with G.R. No. 190108.

During the pendency of these consolidated cases, various events occurred which ultimately led
to the incident before this Court, i.e., a Manifestation and Motion[6] dated March 11, 2010, filed
by the OSG on behalf of public respondents, Judge Tacla and Dr. Vicente, to wit:

1. On February 4, 2010, acting on the City Prosecutor's January 25, 2010 Motion to Withdraw
Information, public respondent Judge ordered the dismissal of Criminal Case No. MC019-
12281. Hence, their Urgent Prayer for Issuance of a Temporary Restraining Order (TRO) before
this Honorable Court has been rendered moot and academic. A copy of the February 4, 2010
Order dismissing Criminal Case No. MC019-12281 is attached herewith as Annex "A."

2. Furthermore, in view of the dismissal of Criminal Case No. MC019-12281 from which the
Petition for Writ of Habeas Corpus and Writ of Amparo (docketed before the Supreme Court as
G.R. No. 190108 and Court of Appeals as CA-G.R. SP No. 00039) and the Petition for Review
(docketed as G.R. No. 190473) stemmed from, these cases and pending incidents thereon
should be dismissed for having been rendered moot and academic.

WHEREFORE, it is respectfully prayed that the Petition for Writ of Habeas Corpus and Writ of
Amparo (docketed before the Supreme Court as G.R. No. 190108 and Court of Appeals as CA-
G.R. SP No. 00039) and the Petition for Review (docketed as G.R. No. 190473) and all other
pending incidents thereon be DISMISSED for having been rendered moot and academic.

Petitioner So filed a Comment[7] refuting the OSG's motion to dismiss G.R. Nos. 190108 and
190473. Through counsel, and using strong words, he vehemently opposed the dismissal of the
petitions because they had filed criminal complaints and an administrative case against
respondents Judge Tacla and Dr. Vicente, as well as the NCMH and an attending doctor
thereat, for purported violations of accused Guisande's rights during her confinement at the
NCMH. Adding to the flurry of cases, petitioner So filed a Verified Petition to cite Judge Tacla
and Dr. Vicente in contempt before the CA for their supposed submission of an altered and
falsified document, which was attached to, and formed an integral part of, their Consolidated
Return of the Writ.

Posthaste, and even without us requiring the OSG to file one, it filed a Motion to Admit Reply[8]
with its Reply[9] to the Comment of petitioner So attached thereto. The OSG clarified and denied
outright petitioner So's allegation in the Comment that the criminal case for Qualified Theft
against accused Guisande was a prevarication and concoction of private complainant [10] and
that Judge Tacla had conspired to falsely accuse petitioner So's daughter, Guisande. In all, the
OSG reiterated that GR. Nos. 190108 and 190473 had been rendered moot and academic with
the dismissal of the criminal case for Qualified Theft against Guisande.

Significantly, on August 25, 2010, the OSG filed another Manifestation and Motion [11] informing
this Court of the following:

(1) Resolution dated June 7, 2010 issued by Assistant City Prosecutor Teresa D. Escobar-
Pilares (Assistant City Prosecutor Escobar-Pilares), dismissing the charge of petitioner So
against Judge Tacla and Dr. Vicente and their counsels for Falsification under Article 171 and
172 of the Revised Penal Code, docketed as I.S. No. XV-07-INV-10B-01371, for insufficiency of
evidence;[12] and

(2) Resolution dated July 27, 2010 of the CA in CA-G.R. SP No. 00039, where petitioner So's
verified petition for contempt was dismissed for lack of merit, and where the CA ordered the
petition for habeas corpus/writ of amparo closed and terminated.[13]

Likewise, the OSG reiterated its motion to dismiss the instant consolidated petitions.

We completely agree with the OSG. Accordingly, we deny the petitions in G.R. Nos. 190108 and
190473 for having been rendered moot and academic by the dismissal of Criminal Case No.
MC09-12281 for Qualified Theft pending before the RTC Mandaluyong City.

As correctly pointed out by the OSG, the petition for the writs of habeas corpus and amparo was
based on the criminal case for Qualified Theft against petitioner So's daughter, Guisande. To
recall, petitioner So claimed that the conditions and circumstances of his daughter's, accused
Guisande's, confinement at the NCMH was "life threatening"; although Guisande was accused
of a non-bailable offense, the NCMH could not adequately treat Guisande's mental condition.
Thus, to balance the conflicting right of an accused to medical treatment and the right of the
prosecution to subject to court processes an accused charged with a non-bailable offense, the
CA directed the transfer of Guisande from the NCMH to St. Clare's Medical Center, while noting
that because of the peculiarities of this case, there was a deviation from the regular course of
procedure, since accused Guisande should have been confined in jail because she was
charged with a non-bailable offense.

Notably, nowhere in the transcript of the CA hearing on December 3, 2009, nor in the Order
recited in open court by Justice Pizarro, is there an affirmation of petitioner So's claim that the
confinement of accused Guisande at the NCMH was illegal. Neither were the respective acts
performed by respondents Judge Tacla and Dr. Vicente in ascertaining the mental condition of
accused Guisande to withstand trial declared unlawful. On the contrary, the NCMH, a well-
reputed government forensic facility, albeit not held in high regard by petitioner So's and
accused Guisande's family, had assessed Guisande fit for trial.

The Rules on the Writs of Habeas Corpus and Amparo are clear; the act or omission or the
threatened act or omission complained of - confinement and custody for habeas corpus and
violations of, or threat to violate, a person's life, liberty, and security for amparo cases - should
be illegal or unlawful.

Rule 102 of the Rules of Court on Habeas Corpus provides:

Sec. 1. To what habeas corpus extends. - Except as otherwise expressly provided by law, the
writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.

while the Rule on the Writ of Amparo states:

Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an unlawful act
or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

Our decisions on the propriety of the issuance of these writs reiterate the foregoing rules. In
Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel v. Gloria
Macapagal-Arroyo, Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Maj. Darwin Sy
a.k.a Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, a certain
Jonathan, P/Supt. Edgar B. Roquero, Arsenio C. Gomez, and Office of the Ombudsman,[14] we
qualified:

The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to
life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life.
It is an extraordinary writ conceptualized and adopted in light of and in response to the
prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule
be diluted and undermined by the indiscriminate filing of amparo petitions for purposes
less than the desire to secure amparo reliefs and protection and/or on the basis of
unsubstantiated allegations.[15]

In the recent Nurhida Juhuri Ampatuan v. Judge Virgilio V. Macaraig, RTC, Manila, Branch 37,
Director General Avelino Razon, Jr., Director Geary Barias, PSSupt. Co Yee M. Co, Jr., and
Police Chief Inspector Agapito Quimson,[16] we intoned:

The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such
relief is illegally deprived of his freedom of movement or place under some form of illegal
restraint. If an individual's liberty is restrainted via some legal process, the writ of habeas corpus
is unavailing. Fundamentally, in order to justify the grant of the writ of habeas corpus, the
restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of
action.

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular
person is legally held. A prime specification of an application for a writ of habeas corpus, in fact,
is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. The writ of
habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal freedom. xxx The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient.

In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the
petitioner is being restrained of his liberty. If he is not, the writ will be refused. Inquiry into the
cause of detention will proceed only where such restraint exists. If the alleged cause is
thereafter found to be unlawful, then the writ should be granted and the petitioner discharged.
Needless to state, if otherwise, again the writ will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere
perfunctory operation on the filing of the petition. Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ. It is only if the court is satisfied that a person is
being unlawfully restrained of his liberty will the petition for habeas corpus be granted. If
the respondents are not detaining or restraining the applicant of the person in whose
behalf the petition is filed, the petition should be dismissed.[17]

In the cases at bar, the question before the CA was correctly limited to which hospital, the
NCMH or a medical facility of accused's own choosing, accused Guisande should be referred
for treatment of a supposed mental condition.[18] In addition, we note that it was procedurally
proper for the RTC to ask the NCMH for a separate opinion on accused's mental fitness to be
arraigned and stand trial. Be that as it may, the CA allowed the transfer of accused to St. Clare's
Medical Center under the custody of Dr. Rene Yat, who was required periodically to report on
his evaluation, every fifteen (15) days, to the RTC Mandaluyong City, although in the same
breath, the CA also ordered the continuation of the arraignment and trial of the accused for
Qualified Theft before the same trial court. In other words, Guisande remained in custody of the
law to answer for the non-bailable criminal charge against her, and was simply allowed to
pursue medical treatment in the hospital and from a doctor of her choice.

Certainly, with the dismissal of the non-bailable case against accused Guisande, she is no
longer under peril to be confined in a jail facility, much less at the NCMH. Effectively, accused
Guisande's person, and treatment of any medical and mental malady she may or may not have,
can no longer be subjected to the lawful processes of the RTC Mandaluyong City. In short, the
cases have now been rendered moot and academic which, in the often cited David v.
Macapagal-Arroyo,[19] is defined as "one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value."

Finally, the Resolutions of the CA and Assistant City Prosecutor Escobar-Pilares, unmistakably
foreclose the justiciability of the petitions before this Court.

In CA-G.R. SP No. 00039, the CA said:

We are also not swayed by [David So's] argument that [petitioners] advanced lies to this Court
when they stated in their petition that Elena was facing two (2) non-bailable offenses. During the
hearing on the petition for habeas corpus/writ of amparo, the counsel for [David So] stated that
Elena was facing only one (1) non-bailable offense to which [petitioners] did not anymore object.
Besides, the number of non-bailable offenses is not even material in the instant case for habeas
corpus/writ of amparo as the only issue to be determined here was whether or not Elena's
confinement at NCMH was lawful.

Finally, the issue in the verified petition, of whether [petitioners] were in contempt of court, is
rendered moot and academic considering that this Court had already rendered its open court
Order on December 8, 2009, which was favorable to [David So], and it was only later that the
latter raised the issue of contempt.

Finding no merit in [David So's] verified petition for contempt against [Judge Tacla, Dr. Vicente
and the NCMH], and there being no other objections made by the parties against Our March 17,
2010 Resolution, the instant petition for habeas corpus/writ of amparo is declared CLOSED and
TERMINATED.

SO ORDERED.[20]

In XV-07-INV-10B-01371 for Falsification under Articles 171 and 172 of the Revised Penal
Code, the Assistant City Prosecutor made the following findings:
x x x [T]he undersigned finds no probable cause that respondents committed the charges filed
against them.

Examination of the Contract of Confinement which was claimed to have been falsified reveals
that it was merely a photocopy. The supposed full photocopy of the original copy of the subject
contract did not contain any alteration (change) or intercalation (insertion) that could have
changed its meaning or that could have made it speak of something false. The contents of the
contract depicting that [Guisande's] yaya (Ms. Galleto) was indeed confined at the NCMH as
claimed by respondents to accompany [Guisande], [So's] daughter who was confined thereat
remained the same. Respondents explained that they were unaware of the inadvertent partial
reproduction of the document and supported the same with an affidavit of good faith executed
by an NCMH clerk explaining why it was only partially reproduced.

Likewise, respondents' statement that [Guisande] is "facing non-bailable offenses" is not

absolutely false. Respondents satisfactorily explained that at the time of the filing of their
pleading, they believed in good faith that she was facing more than one non-bailable offenses
(sic) as she was charged with Qualified Theft before the Mandaluyong City RTC, Branch 208
and Syndicated Estafa before the San Juan Prosecutor's office. While it may be true that
[Guisande] has only one (1) non-bailable offense pending in court, respondents proved with
their evidence that she had o.thers pending at the time in other forum.

WHEREFORE, premises considered, it is respectfully recommended that the charges for

Falsification under Articles 171 and 172 of the Revised Penal Code filed against all respondents
namely: (1) Judge Esteban A. Tacla, Jr., (2) Dr. Bernardino A. Vicente, (3) ASG General
Magtanggol M. Castro, SSS Diana H. Castañeda-de Vera, SS Charina A. Soria and AS
Jefferson C. Secillano, be DISMISSED for insufficiency of evidence.[21]

WHEREFORE, in light of the foregoing disquisition, the petitions in G.R. Nos. 190108 and
190473 for the Writs of Habeas Corpus and Amparo, and review on certiorari under Rule 45 of
the Rules of Court are DENIED for being moot and academic. No costs.

SO ORDERED.

[chbreak]

PROCLAIM MARTIAL LAW OVER THE ENTIRE PHILIPPINES OR ANY PART THEREOF

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG VS.
BRIGADIER-GENERAL EDUARDO M. GARCIA (G.R. No. L-33964, December 11, 1971)

DECISION

CONCEPCION, C.J.:

In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was
holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the
general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one
after the other, at the platform where said candidates and other persons were. As a
consequence, eight (8) persons were killed and many more injured, including practically all of
the aforementioned candidates, some of whom sustained extensive, as well as serious, injuries
which could have been fatal had it not been for the timely medical assistance given to them.

On August 23, soon after noontime, the President of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971, reading as follows:
"WHEREAS, on the basis of carefully evaluated information, it is definitely established that
lawless elements in the country, which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material support of a foreign power and
being guided and directed by a well trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the avowed purpose of
actually staging, undertaking and waging an armed insurrection and rebellion in order to forcibly
seize political power in this country, overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with an entirely new one whose form of
government, whose system of laws, whose conception of God and religion, whose notion of
individual rights and family relations, and whose political, social and economic precepts are
based on the Marxist-Leninist-Maoist teachings and beliefs;
"WHEREAS, these lawless elements, acting in concert through front organizations that are
seemingly innocent and harmless, have continuously and systematically strengthened and
broadened their memberships through sustained and careful recruiting and enlistment of new
adherents from among our peasantry, laborers, professionals, intellectuals, students, and mass
media personnel, and through such sustained and careful recruitment and enlistment have
succeeded in infiltrating almost every segment of our society in their ceaseless determination to
erode and weaken the political, social, economic and moral foundations of our existing gov-
ernment and to influence many peasant, labor, professional, intellectual, student and mass
media organizations to commit acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement agencies, and worst of all, against the
peaceful members of our society;
"WHEREAS, these lawless elements have created a state of lawlessness and disorder affecting
public safety and the security of the State, the latest manifestation of which has been the
dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in
the death and serious injury of scores of persons;
"WHEREAS, public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of the
State;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
suspend the privilege of the writ of habeas corpus for the persons presently detained, as well as
all others who may be hereafter similarly detained for the crimes of insurrection or rebellion, and
all other crimes and offenses committed by them in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith.”

Presently, petitions for writs of habeas corpus were filed, in the above-entitled cases, by the
following persons, who, having been arrested without a warrant therefor and then detained,
upon the authority of said proclamation, assail its validity, as well as that of their detention,
namely:

1. TEODOSIO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the

petitioners in Case No. L-33964 - filed on August 24, 1971 who, on August 22,
1971, between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine
Constabulary - which is under the command of respondent Brig. Gen. Eduardo M.
Garcia to go and did go to the headquarters of the Philippine Constabulary, at
Camp Crame, Quezon City, for interrogation, and, thereafter, detained;

2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 - filed, also, on

August 24, 1971 - who was picked up in his residence, at No. 5 Road 3, Urduja
Village, Quezon City, by members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 - or on August 28, 1971
- the same was amended to include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these additional petitioners
are temporarily residing with the original petitioner, Rogelio V. Arienda, the
amended petition alleges nothing whatsoever as regards the circumstances
under which said Vicente Ilao and Juan Carandang are said to be illegally
deprived of their liberty;

4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 -filed on August 25, 1971
- who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon
City, and detained by the Constabulary

5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 - on August
27, 1971 - upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had,
on August 22, 1971, at about 8 p.m., been apprehended by Constabulary agents
in his house, at St. Ignatius Village, Quezon City, and then detained at the Camp
Crame stockade, Quezon City;

6. ANGELO DE LOS REYES, who was allowed - on August 30, 1971 - to

intervene as one of the petitioners in Cases Nos. L-3364, L-33965 and L-33973,
he having been arrested by members of the Constabulary on August 22, 1971,
between 6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta.
Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where he
is detained and restrained of liberty;

7. VICTOR FELIPE, who was similarly allowed to intervene as one of the

petitioners in said three (3) cases, upon the ground that, on August 23, 1971, at
about 8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by members
of the Philippine Constabulary and brought, first to the Constabulary
headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City,
where he is detained and restrained of liberty;

8. TERESITO SISON, who was, also, allowed to intervene as one of the

petitioners in the same three (3) cases, he having been arrested in his residence,
at 318 Lakandula St., Angeles City, on August 22, 1971, between 6 and 7 p.m.,
and taken to the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas,
San Fernando, Pampanga, and eventually to Camp Crame, Quezon City, where
he is restrained and deprived of liberty;

9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college
student of St. Louis University, Baguio City, on whose behalf, Domingo E. de
Lara - in his capacity as Chairman, Committee on Legal Assistance, Philippine
Bar Association - filed on September 3, 1971, the petition in Case No. L-34004,
upon the ground that said Gerardo Tomas had, on August 23, 1971, at about 6
a.m., been arrested by Constabulary agents, while on his way to school in the
City of Baguio, then brought to the Constabulary premises therein at Camp
Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga,
and thence, on August 25, 1971, to the Constabulary headquarters at Camp
Crame, Quezon City, where he is detained;

10. REYNALDO RIMANDO, petitioner in Case No. L-34013 - filed on September 7,

1971 - a 19-year old student of the U.P. College in Baguio City - who, while
allegedly on his way home, at Lukban Road, Baguio, on August 23, 1971, at
about 1 a.m., was joined by three (3) men who brought him to the Burnham Park,
thence, to Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp
Crame, Quezon City, where he is detained;
 11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C, DE
CASTRO, on whose behalf Carlos C. Rabago - as President of the Conference
Delegates Association of the Philippines (CONDA) - filed the petition in Case No.
L-34039 - on September 14, 1971 - against Gen. Eduardo M. Garcia, alleging
that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at
Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and
taken to the PC headquarters at Camp Crame, where, later, that same afternoon,
her husband was brought, also, by PC agents and both are detained;

12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 - on October
26, 1971 - against said Gen. Garcia, as Chief of the Constabulary, and Col.
Prospero Olivas, Chief of the Central Intelligence Service (CIS), Philippine
Constabulary, alleging that, upon invitation from said CIS, he went, on October
20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of
Staff of the Armed Forces of the Philippines, who referred petitioner to Col.
Laroya of the CIS; that the latter, in turn, referred him to CIS Investigator Atty.
Berlin Castillo and another CIS agent, whose name is unknown to the petitioner;
and that, after being interrogated by the two (2), petitioner was detained illegally;
and

13. GARY OLIVAR, petitioner in Case No. L-34339 - filed on November 10, 1971 -
who was apprehended, by agents of the Constabulary, in the evening of
November 8, 1971, in Quezon City, and then detained at Camp Crame, in the
same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to answer
the petitions therein, which they did. The return and answer in L-33964 - which was, mutatis
mutandis, reproduced substantially or by reference in the other cases, except L-34265 -alleges,
inter alia, that the petitioners had been apprehended and detained "on reasonable belief" that
they had "participated in the crime of insurrection or rebellion"; that "their continued detention is
justified due to the suspension of the privilege of the writ of habeas corpus pursuant to
Proclamation No. 889 of the President of the Philippines"; that there is "a state of insurrection or
rebellion" in this country, and that "public safety and the security of the State required the
suspension of the privilege of the writ of habeas corpus," as "declared by the President of the
Philippines in Proclamation No. 889"; that in making said declaration, the "President of the
Philippines acted on relevant facts gathered thru the coordinated efforts of the various
intelligence agents of our government but (of) which the Chief Executive could not at the
moment give a full account and disclosure without risking revelation of highly classified state
secrets vital to its safety and security"; that the determination thus made by the President is
"final and conclusive upon the courts and upon all other persons" and "partake(s) of the nature
of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v, Castañeda, 91 Phil. 882; that petitioners "are under
detention pending investigation and evaluation of culpabilities on the reasonable belief" that they
"have committed, and are still committing, individually or in conspiracy with others, engaged in
armed struggle, insurgency and other subversive activities for the overthrow of the
Government"; that petitioners cannot raise, in these proceedings for habeas corpus, "the
question of their guilt or innocence"; that the "Chief of Constabulary had petitioners taken into
custody on the basis of the existence of evidence sufficient to afford a reasonable ground to
believe that petitioners come within the coverage of persons to whom the privilege of the writ of
habeas corpus has been suspended"; that the "continuing detention of the petitioners is an
urgent bona fide precautionary and preventive measure demanded by the necessities of public
safety, public welfare and public interest"; that the President of the Philippines has "undertaken
concrete and abundant steps to insure that the constitutional rights and privileges of the
petitioners as well as of the other persons in current confinement pursuant to Proclamation 889
remain unimpaired and unhampered"; and that "opportunities or occasions for abuses by peace
officers in the implementation of the proclamation have been greatly minimized, if not completely
curtailed, by various safeguards contained in directives issued by proper authority."

These safeguards are set forth in:

1. A letter of the President t9 the Secretary of National Defense, dated August 21,
1971, directing, inter alia, in connection with the arrest or detention of suspects
pursuant to Proclamation No. 889, that, except when caught in flagrante delicto,
no arrest shall be made without warrant authorized in writing by the Secretary of
National Defense; that such authority shall not be granted unless, "on the basis of
records and other evidences," it appears satisfactorily, in accordance with Rule
113; section 6(b), of the Rules of Court, that the person to be arrested is probably
guilty of the acts mentioned in the proclamation; that, if such person will be
charged with a crime subject to an afflictive penalty under the Anti-Subversion
Act," the authorization for his arrest shall not be issued unless supported by
signed intelligence reports citing at least one reliable witness to the same overt
act; that no unnecessary or unreasonable force shall be used in effecting arrests;
and that arrested persons shall not be subject to greater restraint than is
necessary for their detention;

2. Communications of the Chief of the Constabulary, dated August 23, 27 and 30,
1971, to all units of his command, stating that the privilege of the writ is
suspended for no other persons than those specified in the proclamation; that the
same does not involve martial law; that precautionary measures should be taken
to forestall violence that may be precipitated by improper behavior of military
personnel; that authority to cause arrest under the proclamation will be exercised
only by the Metrocom, CMA, CIS, and "officers occupying positions in the
provinces down to provincial commanders"; that there shall be no indiscriminate
or mass arrests; that arrested persons shall not be harmed and shall be accorded
fair and humane treatment; and that members of the detainee's immediate family
shall be allowed to visit him twice a week;

3. A memorandum of the Department of National Defense, dated September 2,

1971, directing the Chief of the Constabulary to establish appropriate Complaints
and Action Bodies/Groups to prevent and/or check any abuses in connection with
the suspension of the privilege of the writ; and

4. Executive Order No. 333, dated August 26, 1971, creating a Presidential
Administrative Assistance Committee to hear complaints regarding abuses
committed in connection with the implementation of Proclamation No. 889.

Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan
Carangdang had been released from custody on August 31, 1971, "after it had been found that
the evidence against them was insufficient.”

In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of
fact and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the
petitioner therein, had been and is detained "on the basis of a reasonable ground to believe that
he has committed overt acts in furtherance of rebellion or insurrection against the government"
and, accordingly, "comes within the class of persons as to whom the privilege of the writ of
habeas corpus has been suspended by Proclamation No. 889, as amended," the validity of
which is not contested by him.

On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No.
889, so as to read as follows:
"WHEREAS, on the basis of carefully evaluated information, it is definitely established that
lawless elements in the country, which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material support of a foreign power and
being guided and directed by a well-trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the avowed purpose of
[actually] staging; undertaking, [and] waging and are actually engaged in an armed insurrection
and rebellion in order to forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political, social, economic and legal order
with an entirely new one whose form of government, whose system of laws, whose conception
of God and religion, whose notion of individual rights and family relations, and whose political,
social and economic precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;
"WHEREAS, these lawless elements, acting in concert through front organizations that are
seemingly innocent and harmless, have continuously and systematically strengthened and
broadened their memberships through sustained and careful recruiting and enlistment of new
adherents from among our peasantry, laborers, professionals, intellectuals, students, and mass
media personnel, and through such sustained and careful recruitment and enlistment have
succeeded in infiltrating almost every segment of our society in their ceaseless determination to
erode and weaken the political, social, economic and moral foundations of our existing
government and to influence many peasant, labor, professional, intellectual, student and mass
media organizations to commit acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement agencies, and worst of all, against the
peaceful members of our society;
"WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have created a
state of lawlessness and disorder affecting public safety and the security of the State, the latest
manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on
August 21, 1971, which has resulted in the death and serious injury of scores of persons;
"WHEREAS, public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of the
State;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
suspend the privilege of the writ of habeas corpus for the persons presently detained, as well as
all others who may be hereafter similarly detained for the crimes of insurrection or rebellion[,]
and [all] other [crimes and offenses] overt acts committed by them in furtherance [or on the
occasion] thereof [.]. [or incident thereto, or in connection therewith. ]" [1]

On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard
and then the parties therein were allowed to file memoranda, which were submitted froth
September 3 to September 9, 1971.

Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the
following provinces, sub-provinces and cities of the Philippines, namely:

A. PROVINCES:
1. Batanes 10. Romblon 19. Capiz
2. Ilocos Norte 11. Marinduque 20. Aklan
3. Ilocos Sur 12. Or. Mindoro 21. Antique
4. Abra 13. Occ. Mindoro 22. Iloilo
5. La Union 14. Palawan 23. Leyte
 6. Pangasinan 15. Negros Occ. 24. Leyte del Sur
7. Batangas 16. Negros Or. 25. Northern Samar
8. Catanduanes 17. Cebu 26. Eastern Samar
9. Masbate 18. Bohol 27. Western Samar

B. SUB-PROVINCES:
1. Guimaras 2. Biliran 3. Siquijor

C. CITIES:
1. Laoag 4. Batangas 7. San Carlos
2. Dagupan 5. Lipa (Negros Occ.)
3. San Carlos 6. Puerto Princesa 8. Cadiz
(Pang.)
9. Silay 15. Dumaguete 21. Mandaue
10. Bacolod 16. Iloilo 22. Danao
11. Bago 17. Roxas 23. Toledo
12. Canlaon 18. Tagbilaran 24. Tacloban
13. La Carlota 19. Lapu-Lapu 25. Ormoc
14. Bais 20. Cebu 26. Calbayog

On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of
the writ in the following provinces and cities:

A. PROVINCES
1. Surigao del Norte 6. Bukidnon 11. Camiguin
2. Surigao del Sur 7. Agusan del Norte 12. Zamb. del Norte
3. Davao del Norte 8. Agusan del Sur 13. Zamb. del Sur
4. Davao del Sur 9. Misamis Or. 14. Sulu
5. Davao Oriental 10. Misamis Occ.

B. CITIES:
1. Surigao 6. Ozamiz 10. Dipolog
2. Davao 7. Oroquieta 11. Zamboanga
3. Butuan 8. Tangub 12. Basilan
4. Cagayan de Oro 9. Dapitan 13. Pagadian
5. Gingoog

On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-
D, in the following places:

A. PROVINCES:
1. Cagayan 4. Kalinga-Apayao 6. Albay
2. Cavite 5. Camarines Norte 7. Sorsogon
3. Mountain Province
 B. CITIES:
1. Cavite City 3. Trece Martires
2. Tagaytay 4. Legaspi

As a consequence, the privilege of the writ of habeas corpus still suspended in the following
eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:

A. PROVINCES:
1. Bataan 3. Bulacan 5. Ifugao
2. Benguet 4. Camarines Sur 6. Isabela
7. Laguna 11. Nueva Ecija 15. Rizal
8. Lanao del Norte 12. Nueva Vizcaya 16. South
Cotabato
9 Lanao del Sur 13. Pampanga 17. Tarlac
10. North Cotabato 14. Quezon 18. Zambales

B. SUB-PROVINCES:
1. Aurora 2. Quirino

C. CITIES:
1. Angeles 7. Iligan 13. Olongapo
2. Baguio 8. Iriga 14. Palayan
3. Cabanatuan 9. Lucena 15. Pasay
4. Caloocan 10. Manila 16. Quezon
5. Cotabato 11. Marawi 17. San Jose
6. General Santos 12. Naga 18. San Pablo

The first major question that the Court had to consider was whether it would adhere to the view
taken in Barcelon v. Baker1 and reiterated in Montenegro v. Castañeda,2 pursuant to which,
"the authority to decide whether the exigency has arisen requiring suspension (of the privilege of
the writ of habeas corpus) belongs to the President and his 'decision is final and conclusive'
upon the courts and upon all other persons." Indeed, had said question been decided in the
affirmative, the main issue in all of these cases, except L-34339, would have been settled, and,
since the other issues were relatively of minor importance, said cases could have been readily
disposed of. Upon mature deliberation, a majority of the Members of the Court had, however,
reached, although tentatively, a consensus to the contrary, and decided that the Court had
authority to and should inquire into the existence of the factual bases required by the
Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the
Court deemed it necessary to hear the parties on the nature and extent of the inquiry to be
undertaken, none of them having previously expressed their views thereon. Accordingly, on
October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution
stating in part that -

"x x x a majority of the Court having tentatively arrived at a consensus that it may inquire in
order to satisfy itself of the existence of the factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for all
persons detained or to be detained for the crimes of rebellion or insurrection throughout, the
Philippines, which area has lately been reduced to some eighteen provinces , two subprovinces
and eighteen cities with the partial lifting of the suspension of the privilege effected by
Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional
sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article
VII, sec. 10, par. 2, of the Philippine Constitution; and considering that the members of the Court
are not agreed on the precise scope and nature of the inquiry to be "made in the premise even
as all of them are agreed that the Presidential findings are entitled to great respect, the Court
RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30 A.M.
"xxx xxx xxx xxx.”

On October 8, 1971, said four cases were, therefore, heard, once again, but, this time, jointly
with cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period to
file memoranda, in amplification of their respective oral arguments, which memoranda were
submitted from October 12 to October 21, 1971.

Respondents having expressed, during the oral arguments, on September 1 and October 8,
1971, their willingness to impart to the Court classified information relevant to these cases,
subject to appropriate security measures, the Court met at closed doors, on October 28 and 29,
1971, and, in the presence of three (3) attorneys for the petitioners, chosen by the latter,
namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well
as of the Solicitor General and two (2) members of his staff, was briefed, by Gen. Manuel Yan,
Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff,
Gen. Felizardo Tanabe, Col. Tagumpay Nañadiego, Judge Advocate General, JAGS (GSC),
and other ranking officers of said Armed Forces, on said classified information, most of which
was contained in reports and other documents already attached to the records. During the
proceedings, the members of the Court, and, occasionally, counsel for the petitioners,
propounded pertinent questions to said officers of the Armed Forces. Both parties were then
granted a period of time within which to submit their respective observations, which were filed
on November 3, 1971, and complemented by some documents attached to the records on
November 6, 1971, and a summary, submitted on November 15, 1971, of the aforesaid
classified information.

In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the
parties therein were heard in oral argument on November 4 and 16, 1971, respectively.

On November 15, 1971, the Solicitor General filed manifestations-motions stating that on
November 13, 1971, the following petitioners were:

(a) released from custody:

(1) Teodosio Lansang - G. R. No. L-33964

(2) Bayani Alcala - " " L-33964
(3) Rogelio Arienda - " " L-33965
(4) Nemesio Prudente - " " L-33982
(5) Gerardo Tomas - " “ L-34004
(6) Reynaldo Rimando - " " L-34013
(7) Filomeno M. de Castro - " " L-34039
(8) Barcelisa de Castro - " " L-34039
(9) Antolin Oreta, Jr. - " " L-34265

(b) charged, together with other persons named in the criminal complaint filed
therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the
City Fiscal's Office of Quezon City:

(1) Angelo de los Reyes - G. R. No. L-33982*

(2) Teresito Sison - " " L-33982*

(c) accused, together with many others named in the criminal complaint filed
therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion
Act), in the Court of First Instance of Rizal:

(1) Rodolfo del Rosario - G. R. No. L-33969**

(2) Luzvimindo David - " " L-33973
(3) Victor Felipe - " " L-33982*

and continue under detention pursuant to Proclamation No. 889, as amended, and praying that
the petitions in G. R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be
dismissed, without prejudice to the resolution of the remaining cases. Copy of the criminal
complaint filed, as above stated, with the Court of First Instance of Rizal and docketed therein
as Criminal Case No. Q-1623 of said court - which was appended to said manifestations-
motions of the respondents as Annex 2 thereof - shows that Gary Olivar, the petitioner in L-
34339, is one of the defendants in said case.

Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973,

in his comment dated November 23, 1971, urged the Court to rule on the merits of the petition in
all of these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as
amended, upon the ground that he is still detained and that the main issue is one of public
interest, involving as it does th civil liberties of the people. Angelo de los Reyes, one of the
petitioners n L-33964, L-33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for
whose respective benefit the petitions in L-33982 and L-34004 have been filed, maintained that
the issue in these cases is not moot, not even for the detainees who have been released, for, as
long as the privilege of the writ remains suspended, they are in danger of being arrested and
detained again without just cause or valid reason: In his reply, dated and filed on November 29,
1971, the Solicitor General insisted that the release of the above-named petitioners rendered
their respective petitions moot and academic.

Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should
be noted that, as originally formulated, Proclamation No. 889 was contested upon the ground
that it did not comply with the pertinent constitutional provisions, namely, paragraph (14) of
section 1, Article III of our Constitution, reading:

"The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any of which events the same
may be suspended wherever during such period the necessity for such suspension shall exist."

and paragraph (2), section 10, Article VII of the same instrument, which provides that:

"The President shall be commander-in-chief of all armed forces of the Philippines and,
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof when the public safety requires it, he may suspend the
privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial
law."

Regardless of whether or not the President may suspend the privilege of the writ of habeas
corpus in case of "imminent danger" of invasion, insurrection or rebellion - which is one of the
grounds stated in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned
in paragraph (14), section 1 of its Bill of Rights - petitioners maintained that Proclamation No.
889 did not declare the existence of actual "invasion, insurrection or rebellion or imminent
danger thereof," and that, consequently, said Proclamation was invalid. This contention was
predicated upon the fact that, although the first "whereas" in Proclamation No. 889 stated that
"lawless elements" had "entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of actually staging, undertaking and waging an armed
insurrection and rebellion, "the actuality so alleged refers to the existence, not of an uprising that
constitutes the essence of a rebellion or insurrection, but of the conspiracy and the intent to rise
in arms.

Whatever may be the merit of this claim, the same has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia,
the first "whereas" of the original proclamation by postulating that said lawless elements "have
entered into a conspiracy and have in fact joined and banded their forces together for the
avowed purpose of staging, undertaking, waging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country, overthrow the
duly constituted government, and supplant our existing political, social, economic and legal
order with an entirely new one x x x." Moreover, the third "whereas" in the original proclamation
was, likewise, amended by alleging therein that said lawless elements, "by their acts of rebellion
and insurrection," have created a state of lawlessness and disorder affecting public safety and
the security of the State. In other words, apart from adverting to the existence of an actual
conspiracy and of the intent to rise in arms to overthrow the government, Proclamation. No. 889-
A asserts that the lawless elements "are actually engaged in an armed insurrection and
rebellion" to accomplish their purpose.

It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and,
particularly, the circumstances under which it had been issued, clearly suggest the intent to aver
that there was and is, actually, a state of rebellion in the Philippines, although the language of
said proclamation was hardly a felicitous one, it having, in effect, stressed the actuality of the
intent to rise in arms, rather than of the factual existence of the rebellion itself. The pleadings,
the oral arguments and the memoranda of respondents herein have consistently and abundantly
emphasized - to justify the suspension of the privilege of the writ of habeas corpus - the acts of
violence and subversion committed prior to August 21, 1971, by the lawless elements above
referred to, and the conditions obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-A has superseded the original
proclamation and that the flaws attributed thereto are purely formal in nature.

II

Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must concur for the valid
exercise of the authority to suspend the privilege of the writ, to wit: (a) there must be "invasion,
insurrection, or rebellion" or - pursuant to paragraph (2), section 10 of Art. VII of the Constitution
- "imminent danger thereof," and (b) "public safety" must require the suspension of the
privilege. The Presidential Proclamation under consideration declares that there has been and
there is actually a state of rebellion and that1 "public safety requires that immediate and
effective action be taken in order to maintain peace and order, secure the safety of the people
and preserve the authority of the State."

Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker2 and Montenegro v. Castañeda.3 Upon the other hand,
petitioners press the negative view and urge a re-examination of the position taken in said two
(2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it
relied heavily upon Martin v. Mott4 involving the U.S. President's power to call out the militia,
which - he being the commander-in-chief of all the armed forces - may be exercised to suppress
or prevent any lawless violence, even without invasion, insurrection or rebellion, or imminent
danger thereof, and is, accordingly, much broader than his authority to suspend the privilege of
the writ of habeas corpus, jeopardizing as the latter does individual liberty; and (b) the privilege
had been suspended by the American Governor-General, whose act, as representative of the
Sovereign, affecting the freedom of its subjects, can hardly be equated with that of, the
President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty
resides, and from whom all government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and, hence, cannot have more
weight than the same. Moreover, in the Barcelon case, the Court held that it could go into the
question: "Did the Governor-General" - acting under the authority vested in him by the
Congress of the United States, to suspend the privilege of the writ of habeas corpus under
certain conditions - "act in conformance with such authority?" In other words, it did determine
whether or not the Chief Executive had acted in accordance with law. Similarly, in the
Montenegro case, the Court held that petitioner therein had "failed to overcome the presumption
of correctness which the judiciary accords to acts of the Executive x x x." In short, the Court
considered the question whether or not there ally was a rebellion, as stated in the proclamation
therein contested.

Incidentally, even the American jurisprudence is neither explicit nor clear on the point under
consideration. Although some cases1 purport to deny the judicial power to "review" the findings
made in the proclamations assailed in said cases, the tenor of the opinions therein given,
considered as a whole, strongly suggests the court's conviction that the conditions essential for
the validity of said proclamations or orders were, in fact, present therein, just as the opposite
view taken in other cases2 had a backdrop permeated or characterized by the belief that said
conditions were absent. Hence, the dictum of Chief Justice Taney to the effect that "(e)very
case must depend on its own circumstances.”3 One of the important, if not dominant, factors, in
connection therewith, was intimated in Sterling v. Constantin,4 in which the Supreme Court of
the United States, speaking through Chief Justice Hughes, declared that:

"x x x. When there is a substantial showing that the exertion of state power has overridden
private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an
appropriate proceeding directed against the individuals charged with the transgression. To such
a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the
authority appropriate to its exercise. x x x."5

In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively
arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual
bases for the issuance of Presidential Proclamations Nos. 889 and 889-A x x x and thus
determine the constitutional sufficiency of such bases in the light of the requirements of Article
III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine Constitution x x x." Upon
further deliberation, the members of the Court are now unanimous in the conviction that it has
the authority to inquire into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The
authority conferred by the constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of Rights establishes a general
rule, as well as an exception thereto. What is more, it postulates the former in the negative,
evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus
shall not be suspended x x x." It is only by way of exception that it permits the suspension of the
privilege "in cases of invasion, insurrection, or rebellion"- or, under Art. VII of the Constitution,
"imminent danger thereof" - "when the public safety requires it, in any of which events the same
may be suspended wherever during such period the necessity for such suspension shall exist."1
Far from being full and plenary, the authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted, not only by the prescribed setting or the conditions
essential to its existence, but, also, as regards the time when and the place where it may be
exercised. These factors and the aforementioned setting or conditions mark, establish and
define the extent, the, confines and the limits of said power, beyond which it does not
exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may, within proper bounds,
be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon
would be meaningless. Surely, the framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege
affects the most fundamental element of that system, namely, individual freedom. Indeed, such
freedom includes and connotes, as well as demands, the right of every single member of our
citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the
policies and the practices of the government and the party in power that he deems unwise,
improper or inimical to the commonweal, regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and exercise of such right - which, under certain
conditions; may be a civic duty of the highest order - is vital to the democratic system and
essential to its successful operation and wholesome growth arid development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and
exercised, not in derogation thereof, but consistently therewith, and, hence, within the
framework of the social order established by the Constitution and the context of the Rule of
Law. Accordingly, when individual freedom is used to destroy that social order, by means of
force and violence, in defiance of the Rule of Law - such as by rising publicly and taking arms
against the government to overthrow the same, thereby committing the crime of rebellion - there
emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee
or protection, by suspending the privilege of the writ of habeas corpus, when public safety
requires it. Although we must be forewarned against mistaking mere dissent - no matter how
emphatix or intemperate it may be - for dissidence amounting to rebellion or insurrection, the
Court cannot hesitate, much less refuse - when the existence of such rebellion or insurrection
has been fairly established or cannot reasonably be denied - to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme
Law of the land and depriving him, to this extent, of such power, and, therefore, without violating
the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.

As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be
"invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the
Constitution - "imminent danger thereof"; and (b) public safety must require the aforementioned
suspension. The President declared in Proclamation No. 889, as amended, that both conditions
are present.

As regards the first condition, our jurisprudence1 attests abundantly to the Communist activities
in the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed
principally at incitement to sedition or rebellion, as the immediate objective. Upon the
establishment of the Commonwealth of the Philippines, the movement seemed to have waned
notably; but, the out-break of World War II in the Pacific and the miseries, the devastation and
havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of
the Philippines and its subsequent liberation, brought about, in the late forties, a resurgence of
the Communist threat, with such vigor as to be able to organize and operate in Central Luzon an
army - called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng
Bayan (HMB) after liberation - which clashed several times with the armed forces of the
Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October
22, 1950, suspending the privilege of the writ of habeas corpus, the validity of which was upheld
in Montenegro v. Castañeda.1 Days before the promulgation of said Proclamation, or on
October 18, 1950, members of the Communist Politburo in the Philippines were apprehended in
Manila. Subsequently accused and convicted of the crime of rebellion, they served their
respective sentences.2

The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion
Act, was approved, upon the ground - stated in the very preamble of said statute - that

“x x x the Communist Party of the Philippines, although purportedly a political party, is in fact an
organized conspiracy to overthrow the Government of the Republic of the Philippines, not only
by force and violence but also by deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to alien domination and control;
"x x x the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines3; and
"x x x in the face of the organized, systematic and persistent subversion, national in scope but
international in direction, posed by the Communist Party of the Philippines and its activities,
there is urgent need for special legislation to cope with this continuing menace to the freedom
and security of the country x x x."

In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the
Senate Ad Hoc Committee of Seven - copy of which Report was filed in these cases by the
petitioners herein -

"The years following 1963 saw the successive emergence in the country of several mass
organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines)
among the workers; the Malayang Samahan ng Mga Magsasaka (MASAKA) among the
peasantry; the Kabataang Makabayan (KM) among the youth/students; and the Movement for
the Advancement of Nationalism (MAN) among the intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence and utilize these organizations in promoting its radical
brand of nationalism."1

Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which - composed mainly of young radicals, constituting the Maoist faction - reorganized the
Communist Party of the Philippines early in 1969 and established a New People's Army. This
faction adheres to the Maoist concept of the "Protracted People's War" or "War of National
Liberation." Its "Programme for a People's Democratic Revolution" states, inter alias:

"The Communist Party of the Philippines is determined to implement its general programme for
a people's democratic revolution. All Filipino communists are ready to sacrifice their lives for the
worthy cause of achieving the new type of democracy, of building a new Philippines that is
genuinely and completely independent, democratic, united, just and prosperous ...
“xxx xxx xxx.
"The central task of any revolutionary movement is to seize political power. The Communist
Party of the Philippines assumes this task at a time that both the international and national
situations are favorable to taking the road of armed revolution ..."1

In the year 1969, the NPA had - according to the records of the Department of National Defense
- conducted raids, resorted to kidnappings and taken part in other violent incidents numbering
over 230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its
record of violent incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the
traditional group or to the Maoist faction, believe that force and violence are indispensable to the
attainment of their main and ultimate objective, and act in accordance with such belief, although
they may disagree on the means to be used at a given time and in a particular place; and (b)
there is a New People's Army, other, of course, than the armed forces of the Republic and
antagonistic thereto. Such New People's Army is per se proof of the existence of a rebellion,
especially considering that its establishment was announced publicly by the reorganized
CPP. Such announcement is in the nature of a public challenge to the duly constituted
authorities and may be likened to a declaration of war, sufficient to establish a war status or a
condition of belligerency, even before the actual commencement of hostilities.

We, entertain, therefore, no doubts about the existence of a sizeable group of men who have
publicly risen in arms to overthrow the government and have thus been and still are engaged in
rebellion against the Government of the Philippines.

In fact, the thrust of petitioners' argument is that the New People's Army proper is too small,
compared with the size of the armed forces of the Government, that the Communist rebellion or
insurrection cannot so endanger public safety as to require the suspension of the privilege of the
writ of habeas corpus. This argument does not negate, however, the existence of a rebellion,
which, from the constitutional and statutory viewpoint, need not be widespread or attain the
magnitude of a civil war. This is apparent from the very provision of the Revised Penal Code
defining the crime of, rebellion,1 which may be limited in its scope to "any part" of the
Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing
the suspension of the privilege of the writ "wherever" - in case of rebellion - "the necessity for
such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation
suspending the privilege in the provinces of Cavite and Batangas only. The case of In re Boyle2
involved a valid proclamation suspending the privilege in a smaller area - a county of the state of
Idaho.

The magnitude of the rebellion has a bearing on the second condition essential to the validity of
the suspension of the privilege - namely, that the suspension be required by public
safety. Before delving, however, into the factual bases of the presidential findings thereon, let
us consider the' precise nature of the Court's function in passing upon the validity of
Proclamation No. 889, as amended.

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the
writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not absolute. What is
more, it goes hand in hand with the system of checks and balances, under which the Executive
is supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally su-
preme.

In the exercise of such authority, the function of the Court is merely to check - not to supplant3 -
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To
be sure, the power of the Court to determine 'the validity of the contested proclamation is far
from being identical to, or even comparable with, its power over ordinary civil or criminal cases
elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has
all of the powers of the court of origin.

Under the principle of separation of powers and the system of checks and balances, the judicial
authority to review decisions of administrative bodies or agencies is much more limited, as
regards findings of fact made in said decisions. Under the English law, the reviewing court
determines only whether there is some evidentiary basis for the contested administrative finding;
no quantitative examination of the supporting evidence is undertaken. The administrative
finding can be interfered with only if there is no evidence whatsoever in support thereof, and
said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has
been adopted by some American courts. It has, likewise, been adhered to in a number of
Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence"
rule, which has been construed to mean "more than a mere scintilla" or "relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,"1 even if other minds
equally reasonable might conceivably opine otherwise.

Manifestly, however, this approach refers to the review of administrative determinations

involving the exercise of quasi-judicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act
of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas
corpus, for, as a general rule, neither body takes evidence - in the sense in which the term is
used in judicial proceedings - before enacting a legislation or suspending the writ. Referring to
the test of the validity of a statute, the Supreme Court of the United States, speaking through
Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York,2 the view that:

"x x x If the laws passed are seen to have a reasonable relation to a proper legislative purpose,
and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and
judicial determination to that effect renders a court functus officio... With the wisdom of the
policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are
both incompetent and unauthorized to deal ...”

Relying upon this view, it is urged by the Solicitor General -

"x x x that judicial inquiry into the basis of the questioned proclamation can go no further than to
satisfy the Court not that the President's decision is correct and that public safety was
endangered by the rebellion and justified the suspension of the writ, but that in suspending the
writ, the 'President did not act arbitrarily."

No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-
equality of coordinate branches of the Government, under our constitutional system, seems to
demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis
mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that
the proper standard is not correctness, but arbitrariness.

Did public 'safety require the suspension of the privilege of the writ of habeas corpus decreed in
Proclamation No. 889, as amended? Petitioners submit a negative answer upon the
ground: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the
privilege, the Government was functioning normally, as were the courts; (c) that no untoward
incident, confirmatory of an alleged July August Plan, has actually taken place after August 21,
1971; (d) that the President's alleged apprehension, because of said plan, is nonexistent and
unjustified; and (e) that the Communist forces in the Philippines are too small and weak to
jeopardize public safety to such extent as to require the suspension of the privilege of the writ of
habeas corpus.

As above indicated, however, the existence of a rebellion is obvious, so much so that counsel
for several petitioners herein have admitted it.

With respect to the normal operation of government, including courts, prior to and at the time of
the suspension of the privilege, suffice it to say that, if the conditions were such that courts of
justice no longer functioned a suspension of the privilege would have been unnecessary, there
being no courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal
operation of courts as a factor indicative of the illegality of the contested act of the Executive
stems, perhaps, from the fact that this circumstance was adverted to in some American cases to
justify the invalidation therein decreed of said act of the. Executive Said cases involved,
however, the conviction by military courts of members of the civilian population charged with
common crimes. It was manifestly, illegal for military courts to assume jurisdiction over civilians
so charged, when civil courts were functioning normally.

Then, too, the alleged absence of any untoward incident after August 21, 1971, does not
necessarily bear out petitioners' view. What is more, it may have been due precisely to the
suspension of the privilege. To be sure, one of its logical effects is to compel those connected
with the insurrection or rebellion to go into hiding. In fact, most of them could not be located by
the authorities, after August 21, 1971.

The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that,
according to Professor Egbal Ahmad of Cornell University, "guerrilla use of terror x x x is
sociological and psychologically selective," and that the indiscriminate resort to terrorism is
bound to boomerang, for it tends to alienate the people's sympathy and to deprive the dissidents
of much needed mass support. The fact, however, is that the violence;, used in some
demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its inhabitants. It
would have been highly imprudent, therefore, for the Executive to discard the possibility of a
resort to terrorism, on a much bigger scale, under the July-August Plan.

We will now address our attention to petitioners' theory to the effect that the New People's Army
of the Communist Party of the Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in
petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces
of the Philippines have no other task than to fight the. New People's Army, and that the latter is
the only threat - and a minor one - to our security. Such assumption is manifestly erroneous.

The records before Us show that, on or before August 21, 1971, the Executive had information
and reports - subsequently confirmed, in many respects, by the above-mentioned Report of the
Senate Ad-Hoc Committee of Seven1 - to the effect that the Communist Party of the Philippines
does not merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho
Chi Minh's terrorist tactics and resorted to the assassination of uncooperative local officials; that,
in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of
police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in
1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident,' the MAWASA main pipe, at the Quezon City-San Juan boundary,
was bombed; that this was followed closely by the bombing of the Manila City HAll, the
COMELEC Building, the Congress Building and the MERALCO substation at Cubao, Quezon
City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas
Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.

Petitioners, similarly, fail to take into account that - as per said information and reports - the
reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of
protracted people's war, aimed at the paralyzation of the will to resist of the government, of the
political, economic and intellectual leadership, and of the people themselves; that conformably
to such concept, the Party has placed special emphasis upon a most extensive and intensive
program of subversion by the establishment of front organizations in urban centers, the
organization of armed city partisans and the infiltration in student groups, labor unions, and
farmer and professional groups; that the CPP has managed to infiltrate or establish and control
nine (9) major labor organizations; that it has exploited the youth movement and succeeded in
making Communist fronts of eleven (11) major student or youth organizations; that there are,
accordingly, about thirty (30) mass organizations actively advancing the CPP interests, among
which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM),
the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng
Kabataan (SDK), The Samahang Molave (SM) and the Malayang Pagkakaisa ng Kabataang
Pilipino (MPKP); that, as of August, 1971, the KM had two hundred forty-five,(245) operational
chapters throughout the Philippines, of which seventy-three (73) were in the Greater
Manila. Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the
Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded two
hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended in
violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded
those of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in
the death of fifteen (15) persons and the injury of many more.

Subsequent events - as reported - have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid,
in consequence of which seven (7) soldiers lost their lives and two (2) others were wounded,
whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group
of NPA, trained by defector Lt. Victor Corpus, attacked the very command post of TF LAWIN in
Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the
NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3)
wounded on the side of the Government, one (1) BSDU killed and three (3) NPA casualties; that
in an encounter at Botolan, Zambales, one (1) KM-SDK leader, an unidentified dissident, and
Commander Panchito, leader of the dissident group, were killed; that on August 26, 1971, there
was an encounter in the barrio of San Pedro, Iriga City, Camarines Sur, between the PC and the
NPA, in which a PC and two (2) KM members were killed; that the current disturbances in
Cotabato and the Lanao provinces/have been rendered more complex by the involvement of the
CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza , contacted the Higa-
onan tribes , in their settlement in Magsaysay, Misamis Oriental, and offered them books,
pamphlets and bronchures of Mao Tse Tung, as well as conducted teach-ins in, the reservation;
that Esparagoza was reportedly killed on September 22, 1971, in an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in Mindanao.

It should, also, be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a "claymore" mine, a
powerful explosive device used by the U. S. Army, believed to have been one of many pilfered
from the Subic Naval Base a few days before; that the President had received intelligence
information to the effect that there was a July-August Plan involving a wave of assassinations,
kidnappings; terrorism and mass destruction of property and that an extraordinary occurrence
would signal the beginning of said event; that the rather serious condition of peace and order in
Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces
sufficient to cope with the situation; that a sizeable part of our armed forces discharge other
functions; and that the expansion of the CPP activities from Central Luzon to other parts of the
country, particularly Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna,
Quezon and the Bicol Region, required that the rest of our armed forces be spread thin over a
wide area.

Considering that the President was in possession of the above data - except those related to
events that happened after August 21, 1971 - when the Plaza Miranda bombing took place, the
Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his
discretion when he then concluded that public safety and national security required the
suspension of the privilege of the writ, particularly if the NPA were to strike simultaneously with
violent demonstrations staged by the two hundred forty-five (245) KM chapters, all over the
Philippines, with the assistance and cooperation of the dozens of, CPP front organizations; and
the bombing of water mains and conduits, as well as electric power plants and installations - a
possibility which, no matter how remote, he was bound to forestall, and a danger he was under
obligation to anticipate and arrest.

He had consulted his advisers and sought their views. He had reason to feel that the situation
was critical - as, indeed, it was - and demanded immediate action. This he took believing in
good faith that public Safety required it. And, in the light of the circumstances adverted to
above, he had substantial grounds to entertain such belief.

Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in
the entire Philippines, even if he may have been justified in doing so in some provinces or cities
thereof. At the time of the issuance of Proclamation No. 889, he could not be reasonably
certain, however, about the places to be excluded from the operation of the proclamation. He
needed some time to find out how it worked, and as he did So, he caused the suspension to be
gradually lifted, first, on September 18, 1971, in twenty-seven (27) provinces, three (3) sub-
provinces and twenty-six (26) cities; then, on September 25, 1971, in other fourteen (14)
provinces and thirteen (13) cities; and, still later, on October 4, 1971, in seven (7) additional
provinces and four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces and
forty-three (43) cities, within a period of forty-five (45) days from August 21, 1971.

Neither should We overlook the significance of another fact. The President could have declared
a general suspension of the privilege. Instead, Proclamation No. 889 limited the suspension to
persons detained "for crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith." Even this was further limited by Proclamation No. 889-A, which withdrew
from the coverage of the suspension persons detained for other crimes and offenses committed
"on the occasion" of the insurrection or rebellion, or "incident thereto, or in connection
therewith." In fact, the petitioners in L-33964, L-33982 and L-34004 concede that the President
had acted in good faith.

In case of invasion, insurrection or rebellion or imminent danger thereof, the President has,
under the Constitution, three (3) courses of action open to him, namely: (a) to call out the
armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the
Philippines or any part thereof under martial law. He had; already, called out the armed, forces,
which measure, however, proved inadequate to attain the desired result. Of the two (2) other
alternatives, the suspension of the privileges the least harsh.

In view of the foregoing, it does not appear that the President has acted arbitrarily in issuing
Proclamation No. 889, as amended, nor that the same is unconstitutional.

III

The next question for determination is whether petitioners herein are covered by said
Proclamation, as amended, In other words, do petitioners herein belong to the class of persons
as to whom the privilege of the writ of habeas corpus has been suspended?

In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo
Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" - meaning, perhaps, without any intention to
prosecute them - upon the ground that, although there was reasonable ground to believe that
they had committed an offense related to subversion, the evidence against them is insufficient to
warrant their prosecution; that Teodosio Lansang, one of the petitioners in L-33964, Rogelio
Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in L-33982, Filomeno de Castro
and Barcelisa C. de Castro, for whose benefit the petition in L-34039 was filed, and Antolin
Oreta, Jr., petitioner in L-34265, were, on said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and
L-33973, as well as Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-
34339, are still under detention and, hence, deprived of their liberty, they - together with over
forty (40) other persons, who are at large - having been accused, in the Court of First Instance
of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that
Angelo de los Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and L-33973,
are, likewise, still detained and have been charged - together with over fifteen (15) other
persons, who are, also, at large - with another violation of said Act, in a criminal complaint filed
with the City Fiscal's Office of Quezon City.

With respect to Vicente Ilao and Juan Carandang - petitioners in L-33965 - who were released
as early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang,
Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo
Rimando, Gerardo Tomas and Bayani Alcala, who were released on November 13, 1971, and
are no longer deprived of their liberty, their respective petitions have, thereby, become moot and
academic, as far as their prayer for release is concerned, and should, accordingly, be
dismissed, despite the opposition thereto of counsel for Nemesio Prudente and Gerardo Tomas,
who maintain that, as long as the privilege of the writ remains suspended, these petitioners
might be arrested and detained again, without just cause, and that, accordingly, the issue raised
in their respective petitions is not moot. In any event, the common constitutional and legal
issues raised, in these cases have, in fact, been decided in this joint decision.

Must we order the release of Rodolfo del Rosario, one of the petitioners in L-33964, Angelo de
los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965 and L-33973,
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who are still
detained? The suspension of the privilege of the writ was decreed by Proclamation No. 889, as
amended, for persons detained "for the crimes of insurrection or rebellion and other overt acts
committed by them in furtherance thereof."

The records show that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo
de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the
Court of First Instance of Rizal with a violation of the Anti-Subversion Act and that the similar
charge against petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint,
originally filed with the City Fiscal of Quezon City, has, also, been filed with said court. Do the
offenses so charged constitute one of the crimes or overt acts mentioned in Proclamation No.
889, as amended?

In the Complaint in said Criminal Case No. 1623, it is alleged:

"That in or about the year 1968 and for sometime prior thereto and thereafter up to and including
August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the Philippines, within the
jurisdiction of this Honorable Court, the above-named accused knowingly, wilfully and by overt
acts became officers and/or ranking leaders of the Communist Party of the Philippines, a
subversive association .as defined by Republic Act No. 1700, which is an organized conspiracy
to overthrow the government of the Republic of the Philippines by force, violence, deceit,
subversion and other illegal means, for the purpose of establishing in the Philippines a com-
munist totalitarian regime subject to alien domination and control;
"That all the above-named accused, as such officers and/or ranking leaders of the Communist
Party of the Philippines conspiring, confederating and mutually helping one another, did then
and there knowingly, wilfully, feloniously and by overt acts committed subversive acts all
intended to overthrow the government of the Republic of the Philippines, as follows:
1. By rising publicly and taking arms against the government, engaging in war against
the forces of the government, destroying property or committing serious violence, exacting
contributions or diverting public funds or property from the lawful purpose for which they have
been appropriated;
2. By engaging in subversion thru expansion and recruitment activities not only of the
Communist Party of the Philippines but also of the united front organizations of the Communist
Party of the Philippines as the Kabataang Makabayan (KM), Movement for a Democratic
Philippines (MDP), Samahang Demokratikong Kabataan (SDK), Students' Alliance for National
Democracy (STAND), MASAKA Olalia-faction, Student Cultural Association of the University of
the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many
others; thru agitation promoted by rallies, demonstrations and strikes some of them violent in
nature, intended to create social discontent, discredit those in power and weaken the people's
confidence in the government; thru consistent propaganda by publications, writing, posters,
leaflets or similar means; speeches, teach-ins, messages, lectures or other similar means; and
thru the media as the TV, radio or newspapers, all intended to promote the Communist pattern
of subversion;
3. Thru urban guerrilla warfare characterized by assassinations, bombings, sabotage,
kidnapping and arson, intended to, advertise the movement, build up its morale and prestige,
discredit and demoralize the authorities to use harsh and repressive measures, demoralize the
people and weaken their confidence in the government and to weaken the will of the
government to resist.
"That the following aggravating circumstances, attended the commission of the offense:
a. That the offense was committed in contempt of and with insult to the public authorities;
b. That some of the overt acts were committed in the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under fifteen (15) years old."

Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except
that the second paragraph thereof is slightly more elaborate than that of the complaint filed with
the CFI, although substantially the same.1

In both complaints, the acts imputed to the defendants herein constitute rebellion and
subversion, or - in the language of the proclamation - "other overt acts committed x x x in
furtherance" of said rebellion, both of which are covered by the proclamation suspending the
privilege of the writ. It is clear, therefore, that the crimes for which the detained petitioners are
held and deprived of their liberty are among those for which the privilege of the writ of habeas
corpus has been suspended.

Up to this point, the Members of the Court are unanimous on the legal principles enunciated.

After finding that Proclamation No. 889, as amended, is not invalid and that petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison are detained for and actually accused of an offense for which the privilege of the
writ has been suspended by said proclamation, our next step would have been the
following: The Court, or a commissioner designated by it, would have received evidence on
whether - as stated in respondents' "Answer and Return" - said petitioners had been
apprehended and detained "on reasonable belief" that they had "participated in the crime of
insurrection or rebellion."

It so happened, however, that on November 13, 1971 - or two (2) days before the proceedings
relative to the briefing held on October 28 and 29, 1971, had been completed by the filing1 of a
summary of the matters then taken up the aforementioned criminal complaints were filed against
said petitioners. What is more the preliminary examination and/or investigation of the charges
contained in said complaints has already begun. The next question, therefore, is: Shall We
now order, in the cases .at hand, the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege, despite the fact that they are
actually charged with offenses covered by said proclamation and despite the aforementioned
criminal complaints against them and the preliminary examinations and/or investigations being
conducted therein?

The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and,
so hold, that, instead of this Court or its commissioner taking the evidence adverted to above, it
is best to let said preliminary examination and/or investigation be completed, so that petitioners'
release could be ordered by the court of first instance, should it find that there is no probable
cause against them, or a warrant for their arrest could be issued, should a probable cause be
established against them. Such course of action is more favorable to the petitioners, inasmuch
as a preliminary examination or investigation requires a greater quantum of proof than that
needed to establish that the Executive had not acted arbitrarily in causing the petitioners to be
apprehended and detained upon the ground that they had participated in the commission of the
crime of insurrection or rebellion. And, it is mainly for this reason that the Court has opted to
allow the Court of First Instance of Rizal to proceed with the determination of the existence of
probable cause, although ordinarily the Court would have merely determined the existence of
substantial evidence of petitioners' connection with the crime of rebellion. Besides, the latter
alternative would require the reception of evidence by this Court and thus duplicate the
proceedings now taking place in the court of first instance. What is more, since the evidence
involved in both proceedings would be substantially the same and the presentation of such
evidence cannot be made simultaneously, each proceeding would tend to delay the other.

Mr. Justice Fernando is of the opinion - in line with the view of Mr. Justice Tuason, in Nava v.
Gatmaitan,2 to the effect that "x x x if and when formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and becomes a judicial
concern x x x" - that the filing of the above-mentioned complaints against the six (6) detained
petitioners herein, has the effect of the Executive giving up his authority to continue holding
them pursuant to Proclamation No. 889, as amended, even if he did not so intend, and to place
them fully under the authority of courts of justice, just like any other person, who, as such,
cannot be deprived of his liberty without lawful warrant, which has not, as yet, been issued
against anyone of them, and that, accordingly, We should order their immediate
release. Despite the humanitarian and libertarian spirit, with which this view has been
espoused, the other Members of the Court are unable to accept it because:

(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid
- and We so hold it to be - and the detainee is covered by the proclamation, the
filing of a complaint or information against him does not affect the suspension of
said privilege, and, consequently, his release may not be ordered by Us;

(b) Inasmuch as the filing of a formal complaint or information does not detract from
the validity and efficacy of the suspension of the privilege, it would be more
reasonable to construe the filing of said formal charges with the court of first
instance as an expression of the President's belief that there are sufficient
evidence to convict the petitioners so charged and that they should not be
released, therefore, unless and until said court - after conducting the
corresponding preliminary examination and/or investigation - shall find that the
prosecution has not established the existence of a probable cause. Otherwise,
the Executive would have released said accused, as were the other petitioners
herein;

(c) From a long-range viewpoint, this interpretation - of the act of the President in
having said formal charges filed - is, We believe, more beneficial to the detainees
than that favored by Mr. justice Fernando. His view - particularly the theory that
the detainees should be released immediately, without bail, even before the
completion of said preliminary examination and/or investigation - would tend to
induce the Executive to refrain from filing formal charges as long as it may be
 possible. Manifestly, We should encourage the early filing of said charges, so
that courts of justice could assume jurisdiction over the detainees and extend to
them effective protection.

Although some of the petitioners in these cases pray that the Court decide whether the
constitutional right to bail is affected by the suspension of the privilege of the writ of habeas
corpus, We do not deem it proper to pass upon such question, the same not having been
sufficiently discussed by the parties herein. Besides, there is no point in settling said question
with respect to petitioners herein who have been released. Neither is it necessary to express
our view thereon, as regards those still detained, inasmuch as their release without bail might
still be decreed by the court of first instance, should it hold that there is no probable cause
against them. At any rate, should an actual issue-on the right to bail arise later, the same may
be brought up in appropriate proceedings.

WHEREFORE, judgment is hereby rendered:

1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as
amended, and that, accordingly, the same is not unconstitutional;

2. Dismissing the petitions in L-33964, L-33965, L-33982, L734004, L-34013, L-34039 and L-
34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicente Ilao,
Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de
Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;

3. The Court of First Instance .of Rizal is hereby directed to act with utmost dispatch in
conducting the preliminary examination and/or investigation of the charges for violation of the
Anti-Subversion Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar,
Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the corresponding -
warrants of arrest, if probable cause is found to exist against them, or otherwise, to order their
release; and

4. Should there be undue delay, for any reason whatsoever, either in the completion of the
aforementioned preliminary examination, and/or investigation, or in the issuance of the proper
orders or resolutions in connection therewith, the parties may by motion seek in these
proceedings the proper relief.

5. Without special pronouncement as to costs.

IT IS SO ORDERED.

B/GEN. (RET.) FRANCISCO V. GUDANI VS. LT./GEN. GENEROSO S. SENGA (G.R. NO.
170165, August 15, 2006)

DECISION

TINGA, J.:

A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of
their superior officers are exempt from the strictures of military law and discipline if such
defiance is predicated on an act otherwise valid under civilian law. Obedience and deference to
the military chain of command and the President as commander-in-chief are the cornerstones of
a professional military in the firm cusp of civilian control. These values of obedience and
deference expected of military officers are content-neutral, beyond the sway of the officer's own
sense of what is prudent or rash, or more elementally, of right or wrong. A self-righteous military
invites itself as the scoundrel's activist solution to the "ills" of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo[1]
enjoining them and other military officers from testifying before Congress without the President's
consent. Petitioners also pray for injunctive relief against a pending preliminary investigation
against them, in preparation for possible court-martial proceedings, initiated within the military
justice system in connection with petitioners' violation of the aforementioned directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles
that center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns
will not be addressed to the satisfaction of petitioners, the Court recognizes these values as of
paramount importance to our civil society, even if not determinative of the resolution of this
petition. Had the relevant issue before us been the right of the Senate to compel the testimony
of petitioners, the constitutional questions raised by them would have come to fore. Such a
scenario could have very well been presented to the Court in such manner, without the
petitioners having had to violate a direct order from their commanding officer. Instead, the Court
has to resolve whether petitioners may be subjected to military discipline on account of their
defiance of a direct order of the AFP Chief of Staff.

The solicited writs of certiorari and prohibition do not avail; the petition must be denied.

I.

The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel
Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject
incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy
(PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the
Assistant Commandant of Cadets.[2]

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of
the AFP to appear at a public hearing before the Senate Committee on National Defense and
Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled
after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly
allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a
phone conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio
Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as commander,
and Col. Balutan a member, of "Joint Task Force Ranao" by the AFP Southern Command.
"Joint Task Force Ranao" was tasked with the maintenance of peace and order during the 2004
elections in the provinces of Lanao del Norte and Lanao del Sur. [3] `

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon
to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through
a letter to Sen. Biazon that he would be unable to attend the hearing due to a previous
commitment in Brunei, but he nonetheless "directed other officers from the AFP who were
invited to attend the hearing."[4]

On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum
addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was
signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.[5] Noting that Gen. Gudani
and Col. Balutan had been invited to attend the Senate Committee hearing on 28 September
2005, the Memorandum directed the two officers to attend the hearing.[6] Conformably, Gen.
Gudani and Col. Balutan filed their respective requests for travel authority addressed to the
PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief of Staff was
himself unable to attend said hearing, and that some of the invited officers also could not attend
as they were "attending to other urgent operational matters." By this time, both Gen. Gudani and
Col. Balutan had already departed Baguio for Manila to attend the hearing.

Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted
to the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR
BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL.
INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC)
ACCORDINGLY.[7]
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the
senator that "no approval has been granted by the President to any AFP officer to appear"
before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan
were present as the hearing started, and they both testified as to the conduct of the 2004
elections.

The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The
OSG manifests that the couriers of the AFP Command Center had attempted to deliver the radio
message to Gen. Gudani's residence in a subdivision in Parañaque City late in the night of 27
September 2005, but they were not permitted entry by the subdivision guards. The next day, 28
September 2005, shortly before the start of the hearing, a copy of Gen. Senga's letter to Sen.
Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of
the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a copy.
Further, Gen. Senga called Commodore Tolentino on the latter's cell phone and asked to talk to
Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore
Tolentino to inform Gen. Gudani that "it was an order," yet Gen. Gudani still refused to take
Gen. Senga's call.[8]

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of
Gen. Senga issued a statement which noted that the two had appeared before the Senate
Committee "in spite of the fact that a guidance has been given that a Presidential approval
should be sought prior to such an appearance;" that such directive was "in keeping with the
time[-]honored principle of the Chain of Command;" and that the two officers "disobeyed a legal
order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will
be subjected to General Court Martial proceedings x x x" Both Gen. Gudani and Col. Balutan
were likewise relieved of their assignments then.[9]

On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the
executive department including the military establishment from appearing in any legislative
inquiry without her approval."[10] This Court subsequently ruled on the constitutionality of the said
executive order in Senate v. Ermita.[11] The relevance of E.O. 464 and Senate to the present
petition shall be discussed forthwith.

In the meantime, on 30 September 2005, petitioners were directed by General Senga, through
Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance
before Col. Galarpe, both petitioners invoked their right to remain silent.[12] The following day,
Gen. Gudani was compulsorily retired from military service, having reached the age of 56.[13]

In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline.[14] As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to
trial by the General Court Martial (GCM).[15] Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col.
Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed
petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for
violation of Articles 65[16] and 97[17] of Commonwealth Act No. 408,[18] and to submit their
counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate General. [19]
The Orders were accompanied by respective charge sheets against petitioners, accusing them
of violating Articles of War 65 and 97.

It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga
preventing petitioners from testifying before Congress without her prior approval be declared
unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed;
and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting
for and on their behalf or orders, be permanently enjoined from proceeding against petitioners,
as a consequence of their having testified before the Senate on 28 September 2005. [20]

Petitioners characterize the directive from President Arroyo requiring her prior approval before
any AFP personnel appear before Congress as a "gag order," which violates the principle of
separation of powers in government as it interferes with the investigation of the Senate
Committee conducted in aid of legislation. They also equate the "gag order" with culpable
violation of the Constitution, particularly in relation to the public's constitutional right to
information and transparency in matters of public concern. Plaintively, petitioners claim that "the
Filipino people have every right to hear the [petitioners'] testimonies," and even if the "gag
order" were unconstitutional, it still was tantamount to "the crime of obstruction of justice."
Petitioners further argue that there was no law prohibiting them from testifying before the
Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct
inquiries in aid of legislation.

Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military
jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out that
Article 2, Title I of the Articles of War defines persons subject to military law as "all officers and
soldiers in the active service" of the AFP.

II.

We first proceed to define the proper litigable issues. Notably, the guilt or innocence of
petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this Court,
especially considering that per records, petitioners have not yet been subjected to court martial
proceedings. Owing to the absence of such proceedings, the correct inquiry should be limited to
whether respondents could properly initiate such proceedings preparatory to a formal court-
martial, such as the aforementioned preliminary investigation, on the basis of petitioners' acts
surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent
with the principle that it is not a trier of facts at first instance,[21] is averse to making any
authoritative findings of fact, for that function is first for the court-martial court to fulfill.

Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such
hearing and testified before the Committee, despite the fact that the day before, there was an
order from Gen. Senga (which in turn was sourced "per instruction" from President Arroyo)
prohibiting them from testifying without the prior approval of the President. Petitioners do not
precisely admit before this Court that they had learned of such order prior to their testimony,
although the OSG asserts that at the very least, Gen. Gudani already knew of such order before
he testified.[22] Yet while this fact may be ultimately material in the court-martial proceedings, it is
not determinative of this petition, which as stated earlier, does not proffer as an issue whether
petitioners are guilty of violating the Articles of War.

What the Court has to consider though is whether the violation of the aforementioned order of
Gen. Senga, which emanated from the President, could lead to any investigation for court-
martial of petitioners. It has to be acknowledged as a general principle[23] that AFP personnel of
whatever rank are liable under military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be
necessary to assume, for the purposes of this petition, that petitioners did so.

III.

Preliminarily, we must discuss the effect of E.O. 464 and the Court's ruling in Senate on the
present petition. Notably, it is not alleged that petitioners were in any way called to task for
violating E.O. 464, but instead, they were charged for violating the direct order of Gen.
Senga not to appear before the Senate Committee, an order that stands independent of
the executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed "generals
and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege," as among those public
officials required in Section 3 of E.O. 464 "to secure prior consent of the President prior to
appearing before either House of Congress." The Court in Senate declared both Section 2(b)
and Section 3 void,[24] and the impression may have been left following Senate that it settled as
doctrine, that the President is prohibited from requiring military personnel from attending
congressional hearings without having first secured prior presidential consent. That impression
is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative which is

encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive
branch to seek prior presidential approval before appearing before Congress, the notion of
executive control also comes into consideration.[25] However, the ability of the President to
require a military official to secure prior consent before appearing before Congress pertains to a
wholly different and independent specie of presidential authority—the commander-in-chief
powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the
President are not encumbered by the same degree of restriction as that which may attach to
executive privilege or executive control.

During the deliberations in Senate, the Court was very well aware of the pendency of this
petition as well as the issues raised herein. The decision in Senate was rendered with the
comfort that the nullification of portions of E.O. 464 would bear no impact on the present petition
since petitioners herein were not called to task for violating the executive order. Moreover, the
Court was then cognizant that Senate and this case would ultimately hinge on disparate legal
issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President,
under the aegis of the commander-in-chief powers[26] to require military officials from securing
prior consent before appearing before Congress. The pertinent factors in considering that
question are markedly outside of those which did become relevant in adjudicating the issues
raised in Senate. It is in this petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-
martial, considering his retirement last 4 October 2005. He cites Article 2, Title I of
Commonwealth Act No. 408, which defines persons subject to military law as, among others, "all
officers and soldiers in the active service of the [AFP]," and points out that he is no longer in the
active service.

This point was settled against Gen. Gudani's position in Abadilla v. Ramos,[27] where the Court
declared that an officer whose name was dropped from the roll of officers cannot be considered
to be outside the jurisdiction of military authorities when military justice proceedings were
initiated against him before the termination of his service. Once jurisdiction has been acquired
over the officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the
alleged offenses. This jurisdiction having been vested in the military authorities, it is retained up
to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction
once acquired is not lost upon the instance of the parties but continues until the case is
terminated.[28]
Citing Colonel Winthrop's treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage
which goes against the contention of the petitioners, viz —

3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now
settled law, in regard to military offenders in general, that if the military jurisdiction has
once duly attached to them previous to the date of the termination of their legal period of
service, they may be brought to trial by court-martial after that date, their discharge being
meanwhile withheld. This principle has mostly been applied to cases where the offense
was committed just prior to the end of the term. In such cases the interests of discipline
clearly forbid that the offender should go unpunished. It is held therefore that if before
the day on which his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against him — as by
arrest or the service of charges, — the military jurisdiction will fully attach and
once attached may be continued by a trial by court-martial ordered and held after
the end of the term of the enlistment of the accused x x x [29]

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he compulsorily
retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also
points out that under Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or
enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject to
the Articles of War x x x"[30] To this citation, petitioners do not offer any response, and in fact
have excluded the matter of Gen. Gudani's retirement as an issue in their subsequent
memorandum.

IV.

We now turn to the central issues.

Petitioners wish to see annulled the "gag order" that required them to secure presidential
consent prior to their appearance before the Senate, claiming that it violates the constitutional
right to information and transparency in matters of public concern; or if not, is tantamount at
least to the criminal acts of obstruction of justice and grave coercion. However, the proper
perspective from which to consider this issue entails the examination of the basis and authority
of the President to issue such an order in the first place to members of the AFP and the
determination of whether such an order is subject to any limitations.

The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is
most crucial to the democratic way of life, to civilian supremacy over the military, and to the
general stability of our representative system of government. The Constitution reposes final
authority, control and supervision of the AFP to the President, a civilian who is not a member of
the armed forces, and whose duties as commander-in-chief represent only a part of the organic
duties imposed upon the office, the other functions being clearly civil in nature.[31] Civilian
supremacy over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches and
seizures.[32]

Pursuant to the maintenance of civilian supremacy over the military, the Constitution has
allocated specific roles to the legislative and executive branches of government in relation to
military affairs. Military appropriations, as with all other appropriations, are determined by
Congress, as is the power to declare the existence of a state of war.[33] Congress is also
empowered to revoke a proclamation of martial law or the suspension of the writ of habeas
corpus.[34] The approval of the Commission on Appointments is also required before the
President can promote military officers from the rank of colonel or naval captain. [35] Otherwise,
on the particulars of civilian dominance and administration over the military, the Constitution is
silent, except for the commander-in-chief clause which is fertile in meaning and implication as to
whatever inherent martial authority the President may possess. [36]

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII,
which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief
of all armed forces of the Philippines x x x"[37] Outside explicit constitutional limitations, such as
those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as
commander-in-chief, absolute authority over the persons and actions of the members of the
armed forces. Such authority includes the ability of the President to restrict the travel, movement
and speech of military officers, activities which may otherwise be sanctioned under civilian law.

Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered
confined under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos.
Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press
statements or give any press conference during his period of detention. The Court unanimously
upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It
cannot be gainsaid that certain liberties of persons in the military service, including the
freedom of speech, may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on the maintenance
of discipline within its ranks. Hence, lawful orders must be followed without question and
rules must be faithfully complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in
the AFP, have to be considered.[39]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the
military package. Those who cannot abide by these limitations normally do not pursue a military
career and instead find satisfaction in other fields; and in fact many of those discharged from the
service are inspired in their later careers precisely by their rebellion against the regimentation of
military life. Inability or unwillingness to cope with military discipline is not a stain on character,
for the military mode is a highly idiosyncratic path which persons are not generally conscripted
into, but volunteer themselves to be part of. But for those who do make the choice to be a
soldier, significant concessions to personal freedoms are expected. After all, if need be, the men
and women of the armed forces may be commanded upon to die for country, even against their
personal inclinations.

It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces
is as protector of the people and of the State.[40] Towards this end, the military must insist upon
a respect for duty and a discipline without counterpart in civilian life.[41] The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies
as powerful now as in the past.[42] In the end, it must be borne in mind that the armed forces has
a distinct subculture with unique needs, a specialized society separate from civilian society. [43]
In the elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the
everyday world but does not belong to it. Both worlds change over time, and the warrior world
adopts in step to the civilian. It follows it, however, at a distance. The distance can never be
closed, for the culture of the warrior can never be that of civilization itself..... [44]
Critical to military discipline is obeisance to the military chain of command. Willful disobedience
of a superior officer is punishable by court-martial under Article 65 of the Articles of War.[45] "An
individual soldier is not free to ignore the lawful orders or duties assigned by his immediate
superiors. For there would be an end of all discipline if the seaman and marines on board a ship
of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their
own opinion of their rights [or their opinion of the President"s intent], and to throw off the
authority of the commander whenever they supposed it to be unlawfully exercised."[46]

Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained
by a superior officer from speaking out on certain matters. As a general rule, the discretion of a
military officer to restrain the speech of a soldier under his/her command will be accorded
deference, with minimal regard if at all to the reason for such restraint. It is integral to military
discipline that the soldier's speech be with the consent and approval of the military commander.

The necessity of upholding the ability to restrain speech becomes even more imperative if the
soldier desires to speak freely on political matters. The Constitution requires that "[t]he armed
forces shall be insulated from partisan politics," and that "[n]o member of the military shall
engage directly or indirectly in any partisan political activity, except to vote." [47] Certainly, no
constitutional provision or military indoctrination will eliminate a soldier's ability to form a
personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one,
political belief is a potential source of discord among people, and a military torn by political strife
is incapable of fulfilling its constitutional function as protectors of the people and of the State.
For another, it is ruinous to military discipline to foment an atmosphere that promotes an active
dislike of or dissent against the President, the commander-in-chief of the armed forces. Soldiers
are constitutionally obliged to obey a President they may dislike or distrust. This fundamental
principle averts the country from going the way of banana republics.

Parenthetically, it must be said that the Court is well aware that our country's recent past is
marked by regime changes wherein active military dissent from the chain of command formed a
key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of
history but of the Constitution. The Constitution, and indeed our modern democratic order, frown
in no uncertain terms on a politicized military, informed as they are on the trauma of absolute
martial rule. Our history might imply that a political military is part of the natural order, but this
view cannot be affirmed by the legal order. The evolutionary path of our young democracy
necessitates a reorientation from this view, reliant as our socio-political culture has become on
it. At the same time, evolution mandates a similar demand that our system of governance be
more responsive to the needs and aspirations of the citizenry, so as to avoid an environment
vulnerable to a military apparatus able at will to exert an undue influence in our polity.

Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is
another necessary restriction on members of the military. A soldier cannot leave his/her post
without the consent of the commanding officer. The reasons are self-evident. The commanding
officer has to be aware at all times of the location of the troops under command, so as to be
able to appropriately respond to any exigencies. For the same reason, commanding officers
have to be able to restrict the movement or travel of their soldiers, if in their judgment, their
presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of his first-born, or
to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices
during the period of conscription, wherein the higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the commanding
officer before he/she may leave his destination. A soldier who goes from the properly appointed
place of duty or absents from his/her command, guard, quarters, station, or camp without proper
leave is subject to punishment by court-martial.[48] It is even clear from the record that petitioners
had actually requested for travel authority from the PMA in Baguio City to Manila, to attend the
Senate Hearing.[49] Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate Hearing.

It is clear that the basic position of petitioners impinges on these fundamental principles we
have discussed. They seek to be exempted from military justice for having traveled to the
Senate to testify before the Senate Committee against the express orders of Gen. Senga, the
AFP Chief of Staff. If petitioners' position is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to restrict the speech and movement of their
juniors. The ruinous consequences to the chain of command and military discipline simply
cannot warrant the Court's imprimatur on petitioner's position.

V.

Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they
were responding to an invitation from the Philippine Senate, a component of the legislative
branch of government. At the same time, the order for them not to testify ultimately came from
the President, the head of the executive branch of government and the commander-in-chief of
the armed forces.

Thus, we have to consider the question: may the President prevent a member of the armed
forces from testifying before a legislative inquiry? We hold that the President has constitutional
authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a
military officer who defies such injunction is liable under military justice. At the same time, we
also hold that any chamber of Congress which seeks the appearance before it of a military
officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled
to do so by the President. If the President is not so inclined, the President may be commanded
by judicial order to compel the attendance of the military officer. Final judicial orders have the
force of the law of the land which the President has the duty to faithfully execute. [50]

Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of
prior consent on executive officials summoned by the legislature to attend a congressional
hearing. In doing so, the Court recognized the considerable limitations on executive privilege,
and affirmed that the privilege must be formally invoked on specified grounds. However, the
ability of the President to prevent military officers from testifying before Congress does
not turn on executive privilege, but on the Chief Executive's power as commander-in-
chief to control the actions and speech of members of the armed forces. The President's
prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives of the President as commander-in-chief.
Congress holds significant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions,[51] yet it is on the President that the
Constitution vests the title as commander-in-chief and all the prerogatives and functions
appertaining to the position. Again, the exigencies of military discipline and the chain of
command mandate that the President's ability to control the individual members of the armed
forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to
choose the President. After all, the Constitution prescribes that it is the President, and not the
Senate, who is the commander-in-chief of the armed forces.[52]

At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the
legislature's functions is the conduct of inquiries in aid of legislation. [53] Inasmuch as it is ill-
advised for Congress to interfere with the President's power as commander-in-chief, it is
similarly detrimental for the President to unduly interfere with Congress's right to conduct
legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified
anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement
today that the President has the right to require prior consent from members of the armed
forces, the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by which
members of the military may be compelled to attend legislative inquiries even if the President
desires otherwise, a modality which does not offend the Chief Executive's prerogatives as
commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress
must do so. There is considerable interplay between the legislative and executive branches,
informed by due deference and respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to
compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of
government, does not enjoy a similar dynamic with either the legislative or executive branches.
Whatever weakness inheres on judicial power due to its inability to originate national policies
and legislation, such is balanced by the fact that it is the branch empowered by the Constitution
to compel obeisance to its rulings by the other branches of government.

As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55]

among others, the Court has not shirked from reviewing the exercise by Congress of its power
of legislative inquiry.[56] Arnault recognized that the legislative power of inquiry and the process
to enforce it, "is an essential and appropriate auxiliary to the legislative function." [57] On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in
aid of legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21,
Article VI of the Constitution.[58] From these premises, the Court enjoined the Senate Blue
Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing
evidence before the committee, holding that the inquiry in question did not involve any intended
legislation.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope
and limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by
parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era", however, the
right of Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to
the Court's certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to
avoid such result as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less
room for speculation on the part of the person invited on whether the inquiry is in aid of
legislation.

Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power
of inquiry. The provision requires that the inquiry be done in accordance with the Senate or
House's duly published rules of procedure, necessarily implying the constitutional infirmity of an
inquiry conducted without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
exceptional circumstances' wherein a clear pattern of abuse of the legislative power of inquiry
might be established, resulting in palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction[59].
In Senate, the Court ruled that the President could not impose a blanket prohibition barring
executive officials from testifying before Congress without the President's consent
notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not
rule that the power to conduct legislative inquiry ipso facto superseded the claim of executive
privilege, acknowledging instead that the viability of executive privilege stood on a case to case
basis. Should neither branch yield to the other branch's assertion, the constitutional recourse is
to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with
conclusiveness, attendance or non-attendance in legislative inquiries.

Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a
member of the AFP to appear before Congress, the legislative body seeking such testimony
may seek judicial relief to compel the attendance. Such judicial action should be directed at the
heads of the executive branch or the armed forces, the persons who wield authority and control
over the actions of the officers concerned. The legislative purpose of such testimony, as well as
any defenses against the same — whether grounded on executive privilege, national security or
similar concerns — would be accorded due judicial evaluation. All the constitutional
considerations pertinent to either branch of government may be raised, assessed, and ultimately
weighed against each other. And once the courts speak with finality, both branches of
government have no option but to comply with the decision of the courts, whether the effect of
the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional
parameters of power.[60] This is the fair and workable solution implicit in the constitutional
allocation of powers among the three branches of government. The judicial filter helps assure
that the particularities of each case would ultimately govern, rather than any overarching
principle unduly inclined towards one branch of government at the expense of the other. The
procedure may not move as expeditiously as some may desire, yet it ensures thorough
deliberation of all relevant and cognizable issues before one branch is compelled to yield to the
other. Moreover, judicial review does not preclude the legislative and executive branches from
negotiating a mutually acceptable solution to the impasse. After all, the two branches, exercising
as they do functions and responsibilities that are political in nature, are free to smooth over the
thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers
before Congress. Even if the President has earlier disagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to
comply with the final orders of the courts.

Petitioners have presented several issues relating to the tenability or wisdom of the President's
order on them and other military officers not to testify before Congress without the President's
consent. Yet these issues ultimately detract from the main point — that they testified before the
Senate despite an order from their commanding officer and their commander-in-chief for them
not to do so,[61] in contravention of the traditions of military discipline which we

affirm today. The issues raised by petitioners could have very well been raised and properly
adjudicated if the proper procedure was observed. Petitioners could have been appropriately
allowed to testify before the Senate without having to countermand their Commander-in-chief
and superior officer under the setup we have prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this petition.

Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed,
and moreover, provides for an orderly manner by which the same result could have been
achieved without offending constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006)

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1]
Superior strength - the use of force - cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government
and in favor of the poor, the oppressed, the marginalized, the dispossessed and the
weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity."[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-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]

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines
and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists - the historical enemies of the democratic
Philippine State - who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State - by obstructing governance
including hindering the growth of the economy and sabotaging the people's confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral
effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State -
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people's confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief
of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People's Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo. [4] They considered the aim to
oust or assassinate the President and take-over the reigns of government as a clear and
present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation
from petitioners' counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents' task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of
the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show 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." [5]

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People's Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to
his arrest, Lt. San Juan announced through DZRH that the "Magdalo's D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino's brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group's plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army's elite Scout Ranger. Lim said "it was all systems
go for the planned movement against Arroyo."[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo
protests to be held on February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the chain of command to
join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable
that the President's ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three
(3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.[10]

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."[11]

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. [12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. [13]

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded
the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid
Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the standards - and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 - we will recommend a
'takeover.'" National Telecommunications' Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.[14]

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran's lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during
a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that
(1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or
"prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom
of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power
to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to redress their
grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections
1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII
of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming that
PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, 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 Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.

In respondents' Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people's right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge
A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a "self-starting capacity."[23]
Courts may exercise such power only when the following requisites are present: first, there must
be an actual case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest opportunity; and
fourth, the decision of the constitutional question must be necessary to the determination of the
case itself.[24]

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo's
issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,[26] so that a declaration thereon would be of no practical use or value.[27]
Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the
vital issues that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."[30]

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;[31] second, the exceptional character of the situation and
the paramount public interest is involved;[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;[33] and fourth, the
case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public's
interest, involving as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the extent of the
protection given by constitutional guarantees.[35] And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary.[36] However,
they failed to take into account the Chief Justice's very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.

II-Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative
to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question."[37] In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must
be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."[38] Succinctly put, the plaintiff's standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:[40] "In matter of mere public right, however...the people are
the real parties...It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan[41] held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled
that for a private individual to invoke the judicial power to determine the validity of an executive
or legislative action, he must show that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general interest common to all members of
the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,[44] it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,[45] Manila Race Horse Trainers' Association v. De la Fuente,[46] Pascual v. Secretary of
Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,[49] where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec,[50] this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings. [51]

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress' taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a people's
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue
as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a
concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the

Court reiterated the "direct injury" test with respect to concerned citizens' cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP in
Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60]
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Tañada v. Tuvera,[64] that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of
PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held
that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general
an interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition
as there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she
is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,[67] may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people [68] but he
may be removed from office only in the mode provided by law and that is by impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President's exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72] Aquino,
Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line
defining "political questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government."[75]
Barcelon and Montenegro were in unison in declaring that the authority to decide whether an
exigency has arisen belongs to the President and his decision is final and conclusive on
the courts. Lansang took the opposite view. There, the members of the Court were unanimous
in the conviction that the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic
Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn, constitutionally supreme."[76] In
1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was
almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a
political or justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted
Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God."[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar to Lansang. While the Court considered the
President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion." This ruling is mainly a result of the Court's reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual controversies involving rights
which are legally demandable and enforceable," but also "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82]

As to how the Court may inquire into the President's exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President's
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down
is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the President's decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo's exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners presented nothing to
refute such events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."[84] But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to
the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis,
the ruin of the State...

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people's first intention is that the State shall not perish. [86]
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship."[88]

Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it. [89]
Machiavelli - in contrast to Locke, Rosseau and Mill - sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw "no reason why absolutism should not be used as
a means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life."[92] He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power."[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short...Dictatorship should always be strictly
legitimate in character...Final authority to determine the need for dictatorship in any
given case must never rest with the dictator himself..."[94] and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] "It is a problem of
concentrating power - in a government where power has consciously been divided - to cope
with... situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."[96] Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means - i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be exercised under
a strict time limitation; and last, the objective of emergency action must be the defense of
the constitutional order."[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by emergency. [98]
Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional
dictatorship," thus:
1) No general regime 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 order...

2) ...the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator...

3) No government should initiate a constitutional dictatorship without making specific provisions

for its termination...

4) ...all uses of emergency powers and all readjustments in the organization of the government
should be effected in pursuit of constitutional or legal requirements...

5) ... no dictatorial institution should be adopted, no right invaded, no regular procedure altered
any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect...

7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should
never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it
was instituted...

11) ...the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship...[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon
procedural limitations, and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the meaning of constitutionalism, he
insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of government but,
but rather in the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists - from
Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and,
eventually, to McIlwain's "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson's "balanced power structure." [102]
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic integrity
and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim
that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a "chilling effect" to the citizens.

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

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,[104] the US Supreme Court held that "we have not
recognized an "overbreadth' doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,[105] it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held void on
its face and when 'such summary action' is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from 'pure
speech' toward conduct and that conduct -even if expressive - falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"[107] The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law's "very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even attempt to show whether this
situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application."[110] It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in
free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed to establish that
men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII ... do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power

The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office's vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the President's calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of
our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President's authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo's authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State's extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law." [113]

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the keeping of the President
for the purpose of enabling him to secure the people from harm and to restore order so that they
can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo's calling-out power for the armed forces to assist
her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, [115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of
the Philippines, he will, among others, "execute its laws." [116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,[117] including the Philippine National Police[118] under the
Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They
assail the clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

Petitioners' contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted[120] from Former President Marcos' Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial
law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. --- Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

Sec. 3. Administrative Orders. --- Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.

Sec. 4. Proclamations. --- Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. --- Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or
special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo's exercise of legislative power by
issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot
call the military to enforce or implement certain laws, such as customs laws, laws governing
family and property relations, laws on obligations and contracts and the like. She can only order
the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII
of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or business affected with public
interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval was
President Marcos' Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over "the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government
of its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President's authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court,
Section 18, Article VII grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the absence of a Congressional
enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each other.[123]
Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate
to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate
it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube
Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President's military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ."[126]
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a limited
view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception. [127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by
a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b)
natural disaster,[129] and c) national security.[130]

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.[131] This is evident in the Records of the Constitutional
Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears
in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or
natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned
public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another department -
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances "the
various branches, executive, legislative, and judicial,' given the ability to act, are called upon "to
perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused[135] and may afford an opportunity for abuse in the manner of
application.[136] The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the President's calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens' constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are "acts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become
one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions - or threats of the use of force as the
most recent by the United States against Iraq - consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country's terrorist is another country's
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts - the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to
reach a consensus on the basic issue of definition. The organization has intensified its efforts
recently, but has been unable to bridge the gap between those who associate "terrorism" with
any violent act by non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) - which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims - the Kashmiri resistance groups - who are terrorists in the perception of India,
liberation fighters in that of Pakistan - the earlier Contras in Nicaragua - freedom fighters for the
United States, terrorists for the Socialist camp - or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way - because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is
in the position of an occupying power or in that of a rival, or adversary, of an occupying power in
a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in
each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in
regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital
issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states - and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! - has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.[141]
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized." [142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017;
third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of
Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release
on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally. [147]

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, 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
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers' conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly
cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the auspices under which
the meeting was held but as to its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution protects.
If the persons assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has
a right to prevent."[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the
citizens' right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.[150] The first time
they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When
a person's right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners' narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune's offices were searched without warrant;
second, the police operatives seized several materials for publication; third, the search was
conducted at about 1:00 o' clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a "strong
presence,' to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards -and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 - we will recommend a 'takeover.'" National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made
in the presence of the lawful occupant thereof or any member of his family or in the absence
of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.

Not only that, the search violated petitioners' freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy.
It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the
Tribune's offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to
get the clippings. Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.[155]

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o'clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature to say this,
we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President
for, as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens' rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 - a supervening event - would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained
by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017's extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting
as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard - that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed deleted from the
said G.O. While "terrorism" has been denounced generally in media, no law has been enacted
to guide the military, and eventually the courts, to determine the limits of the AFP's authority in
carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that
(1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal
of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition
of standards on media or any prior restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action and/or
relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly restrain our people's
liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

SANLAKAS VS. EXECUTIVE SECRETARY (G.R. No. 159085, February 03, 2004)

DECISION

TINGA, J,:

They came in the middle of the night. Armed with high-powered ammunitions and explosives,
some three hundred junior officers and enlisted men of the Armed Forces of the Philippines
(AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July
27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the
resignation of the President, the Secretary of Defense and the Chief of the Philippine National
Police (PNP).[1]

In the wake of the Oakwood occupation, the President issued later in the day Proclamation No.
427 and General Order No. 4, both declaring “a state of rebellion” and calling out the Armed
Forces to suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427

DECLARING A STATE OF REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of
the Revised Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to
declare a state of rebellion.

In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article
VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine
National Police to immediately carry out the necessary actions and measures to suppress and
quell the rebellion with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4

DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL
POLICE TO SUPPRESS REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et
seq. of the Revised Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of
all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27,
2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National
Police to suppress and quell the rebellion.

I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine
National Police and the officers and men of the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the necessary and appropriate actions and
measures to suppress and quell the rebellion with due regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long
negotiations, the soldiers agreed to return to barracks. The President, however, did not
immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through
Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was
declared;

WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the
basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the
Constitution, the Armed Forces of the Philippines and the Philippine National Police were
directed to suppress and quell the rebellion;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have
effectively suppressed and quelled the rebellion.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue

of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the validity of
Proclamation No. 427 and General Order No. 4.

In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list organizations
Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the
Constitution does not require the declaration of a state of rebellion to call out the armed forces.[3]
They further submit that, because of the cessation of the Oakwood occupation, there exists no
sufficient factual basis for the proclamation by the President of a state of rebellion for an
indefinite period.[4]

Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) are
officers/members of the Social Justice Society (SJS), “Filipino citizens, taxpayers, law
professors and bar reviewers.”[5] Like Sanlakas and PM, they claim that Section 18, Article VII of
the Constitution does not authorize the declaration of a state of rebellion. [6] They contend that
the declaration is a “constitutional anomaly” that “confuses, confounds and misleads” because
“[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable
to violate the constitutional right of private citizens.”[7] Petitioners also submit that the
proclamation is a circumvention of the report requirement under the same Section 18, Article
VII, commanding the President to submit a report to Congress within 48 hours from the
proclamation of martial law.[8] Finally, they contend that the presidential issuances cannot be
construed as an exercise of emergency powers as Congress has not delegated any such power
to the President.[9]

In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary
Romulo), petitioners brought suit as citizens and as Members of the House of Representatives
whose rights, powers and functions were allegedly affected by the declaration of a state of
rebellion.[10] Petitioners do not challenge the power of the President to call out the Armed
Forces.[11] They argue, however, that the declaration of a state of rebellion is a “superfluity,” and
is actually an exercise of emergency powers.[12] Such exercise, it is contended, amounts to a
usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution. [13]

In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject
presidential issuances as “an unwarranted, illegal and abusive exercise of a martial law power
that has no basis under the Constitution.”[14] In the main, petitioner fears that the declaration of a
state of rebellion “opens the door to the unconstitutional implementation of warrantless arrests”
for the crime of rebellion.[15]

Required to comment, the Solicitor General argues that the petitions have been rendered moot
by the lifting of the declaration.[16] In addition, the Solicitor General questions the standing of the
petitioners to bring suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation No. 435,
declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule,
courts do not adjudicate moot cases, judicial power being limited to the determination of “actual
controversies.”[18] Nevertheless, courts will decide a question, otherwise moot, if it is “capable of
repetition yet evading review.”[19] The case at bar is one such case.

Once before, the President on May 1, 2001 declared a state of rebellion and called upon the
AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No.
1. On that occasion, “‘an angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons’ assaulted and attempted to break into
Malacañang.”[20] Petitions were filed before this Court assailing the validity of the President’s
declaration. Five days after such declaration, however, the President lifted the same. The
mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court
from addressing the constitutionality of the declaration.

To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the
validity of the declaration of a state of rebellion in the exercise of the President’s calling out
power, the mootness of the petitions notwithstanding.

Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing
to challenge the subject issuances. In Philippine Constitution Association v. Enriquez, [22] this
Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion by the
President is tantamount to an exercise of Congress’ emergency powers, thus impairing the
lawmakers’ legislative powers. Petitioners also maintain that the declaration is a subterfuge to
avoid congressional scrutiny into the President’s exercise of martial law powers.

Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus
standi to bring suit. “Legal standing” or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged…. The gist of the question of standing is
whether a party alleges “such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.”[23]

Petitioners Sanlakas and PM assert that:

2. As a basic principle of the organizations and as an important plank in their programs,
petitioners are committed to assert, defend, protect, uphold, and promote the rights,
interests, and welfare of the people, especially the poor and marginalized classes and
sectors of Philippine society. Petitioners are committed to defend and assert human
rights, including political and civil rights, of the citizens.

3. Members of the petitioner organizations resort to mass actions and mobilizations in

the exercise of their Constitutional rights to peaceably assemble and their freedom of
speech and of expression under Section 4, Article III of the 1987 Constitution, as a
vehicle to publicly ventilate their grievances and legitimate demands and to mobilize
public opinion to support the same.[24] [Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng Demokratikong
Pilipino, whose standing this Court rejected in Lacson v. Perez:
… petitioner has not demonstrated any injury to itself which would justify the resort to the
Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be
threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters
are being threatened with warrantless arrest and detention for the crime of rebellion. Every
action must be brought in the name of the party whose legal rights has been invaded or
infringed, or whose legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that it[‘]s right to freedom of expression and freedom of assembly is affected by the
declaration of a “state of rebellion” and that said proclamation is invalid for being contrary to the
Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner,
this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article
VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors,
other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.[25]
Even assuming that petitioners are “people’s organizations,” this status would not vest them with
the requisite personality to question the validity of the presidential issuances, as this Court made
clear in Kilosbayan v. Morato: [26]
The Constitution provides that “the State shall respect the role of independent people’s
organizations to enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful means,” that their
right to “effective and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged.” (Art. XIII, §§15-16)

These provisions have not changed the traditional rule that only real parties in interest or those
with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court,
even in cases involving constitutional questions, is limited by the “case and controversy”
requirement of Art. VIII, §5. This requirement lies at the very heart of the judicial function. It is
what differentiates decisionmaking in the courts from decisionmaking in the political
departments of the government and bars the bringing of suits by just any party. [27]
That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow
them with standing. A taxpayer may bring suit where the act complained of directly involves the
illegal disbursement of public funds derived from taxation.[28] No such illegal disbursement is
alleged.

On the other hand, a citizen will be allowed to raise a constitutional question only when he can
show that he has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.[29] Again, no such injury is alleged
in this case.

Even granting these petitioners have standing on the ground that the issues they raise are of
transcendental importance, the petitions must fail.

It is true that for the purpose of exercising the calling out power the Constitution does not require
the President to make a declaration of a state of rebellion. Section 18, Article VII provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis for the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a “sequence” of “graduated
power[s].”[30] From the most to the least benign, these are: the calling out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the
exercise of the latter two powers, the Constitution requires the concurrence of two conditions,
namely, an actual invasion or rebellion, and that public safety requires the exercise of such
power.[31] However, as we observed in Integrated Bar of the Philippines v. Zamora,[32] “[t]hese
conditions are not required in the exercise of the calling out power. The only criterion is that
‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or
suppress lawless violence, invasion or rebellion.’”

Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the
President from declaring a state of rebellion. Note that the Constitution vests the President not
only with Commander-in-Chief powers but, first and foremost, with Executive powers.

Section 1, Article VII of the 1987 Philippine Constitution states: “The executive power shall be
vested in the President….” As if by exposition, Section 17 of the same Article provides: “He shall
ensure that the laws be faithfully executed.” The provisions trace their history to the Constitution
of the United States.

The specific provisions of the U.S. Constitution granting the U.S. President executive and
commander-in-chief powers have remained in their original simple form since the Philadelphia
Constitution of 1776, Article II of which states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United States of
America . . . .

....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United
States. . . .

....

Section 3. … he shall take care that the laws be faithfully executed…. [Article II – Executive
Power]
Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as
juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with
the prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from
the Executive Power and Commander-in-Chief provisions, as well as the presidential oath of
office, the President serves as Chief of State or Chief of Government, Commander-in-Chief,
Chief of Foreign Relations and Chief of Public Opinion.[33]

First to find definitive new piers for the authority of the Chief of State, as the protector of the
people, was President Andrew Jackson. Coming to office by virtue of a political revolution,
Jackson, as President not only kept faith with the people by driving the patricians from
power. Old Hickory, as he was fondly called, was the first President to champion the
indissolubility of the Union by defeating South Carolina’s nullification effort.[34]

The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs
from South Carolina. Its State Legislature ordered an election for a convention, whose
members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts
unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in
1833, and threatened secession if the Federal Government sought to oppose the tariff
laws. The Legislature then implemented the Ordinance with bristling punitive laws aimed at any
who sought to pay or collect customs duties.[35]

Jackson bided his time. His task of enforcement would not be easy. Technically, the President
might send troops into a State only if the Governor called for help to suppress an insurrection,
which would not occur in the instance. The President could also send troops to see to it that the
laws enacted by Congress were faithfully executed. But these laws were aimed at individual
citizens, and provided no enforcement machinery against violation by a State. Jackson
prepared to ask Congress for a force bill.[36]

In a letter to a friend, the President gave the essence of his position. He wrote: “. . . when a
faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the
balance of the people composing this Union have a perfect right to coerce them to
obedience.” Then in a Proclamation he issued on December 10, 1832, he called upon South
Carolinians to realize that there could be no peaceable interference with the execution of the
laws, and dared them, “disunion by armed force is treason. Are you ready to incur its guilt?” [37]

The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State
Legislatures began to adopt resolutions of agreement, and the President announced that the
national voice from Maine on the north to Louisiana on the south had declared nullification and
accession “confined to contempt and infamy.”[38]

No other President entered office faced with problems so formidable, and enfeebled by personal
and political handicaps so daunting, as Abraham Lincoln.

Lincoln believed the President’s power broad and that of Congress explicit and restricted, and
sought some source of executive power not failed by misuse or wrecked by sabotage. He
seized upon the President’s designation by the Constitution as Commander-in-Chief, coupled it
to the executive power provision — and joined them as “the war power” which authorized him to
do many things beyond the competence of Congress.[39]

Lincoln embraced the Jackson concept of the President’s independent power and duty under his
oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln
declared that “the Executive found the duty of employing the war power in defense of the
government forced upon him. He could not but perform the duty or surrender the existence of
the Government . . . .” This concept began as a transition device, to be validated by Congress
when it assembled. In less than two-years, it grew into an independent power under which he
felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation
Proclamation, and restore reoccupied States.[40]

Lincoln’s Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according
to the proclamation, would be to recapture forts, places and property, taking care “to avoid any
devastation, any destruction of or interference with property, or any disturbance of peaceful
citizens.”[41]

Early in 1863, the U.S. Supreme Court approved President Lincoln’s report to use the war
powers without the benefit of Congress. The decision was handed in the celebrated Prize
Cases[42] which involved suits attacking the President’s right to legally institute a
blockade. Although his Proclamation was subsequently validated by Congress, the claimants
contended that under international law, a blockade could be instituted only as a measure of war
under the sovereign power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could impose a blockade and all
prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court
upheld Lincoln’s right to act as he had.[43]

In the course of time, the U.S. President’s power to call out armed forces and suspend the
privilege of the writ of habeas corpus without prior legislative approval, in case of invasion,
insurrection, or rebellion came to be recognized and accepted. The United States introduced
the expanded presidential powers in the Philippines through the Philippine Bill of 1902. [44] The
use of the power was put to judicial test and this Court held that the case raised a political
question and said that it is beyond its province to inquire into the exercise of the power. [45] Later,
the grant of the power was incorporated in the 1935 Constitution.[46]

Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him
the trustee of all the people. Guided by the maxim that “Public office is a public trust,” which he
practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway
workers who defied a court injunction. The injunction banned all picketing and distribution of
handbills. For leading the strikes and violating the injunction, Debs, who was the union
president, was convicted of contempt of court. Brought to the Supreme Court, the principal
issue was by what authority of the Constitution or statute had the President to send troops
without the request of the Governor of the State.[47]

In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It ruled that
it is not the government’s province to mix in merely individual present controversies. Still, so it
went on, “whenever wrongs complained of are such as affect the public at large, and are in
respect of matters which by the Constitution are entrusted to the care of the Nation and
concerning which the Nation owes the duty to all citizens of securing to them their common
rights, then the mere fact that the Government has no pecuniary interest in the controversy is
not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully
discharge those constitutional duties.”[49] Thus, Cleveland’s course had the Court’s attest.

Taking off from President Cleveland, President Theodore Roosevelt launched what political
scientists dub the “stewardship theory.” Calling himself “the steward of the people,” he felt that
the executive power “was limited only by the specific restrictions and prohibitions appearing in
the Constitution, or impleaded by Congress under its constitutional powers.” [50]

The most far-reaching extension of presidential power “T.R.” ever undertook to employ was his
plan to occupy and operate Pennsylvania’s coal mines under his authority as Commander-in-
Chief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he
had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the
stubborn operators, so that coal production would begin again.[51]

Eventually, the power of the State to intervene in and even take over the operation of vital
utilities in the public interest was accepted. In the Philippines, this led to the incorporation of
Section 6,[52] Article XIII of the 1935 Constitution, which was later carried over with modifications
in Section 7,[53] Article XIV of the 1973 Constitution, and thereafter in Section 18,[54] Article XII of
the 1987 Constitution.

The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief
powers are broad enough as it is and become more so when taken together with the provision
on executive power and the presidential oath of office. Thus, the plenitude of the powers of the
presidency equips the occupant with the means to address exigencies or threats which
undermine the very existence of government or the integrity of the State.

In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R.
Cortes, proposed that the Philippine President was vested with residual power and that this is
even greater than that of the U.S. President. She attributed this distinction to the “unitary and
highly centralized” nature of the Philippine government. She noted that, “There is no
counterpart of the several states of the American union which have reserved powers under the
United States constitution.” Elaborating on the constitutional basis for her argument, she wrote:
…. The [1935] Philippine [C]onstitution establishes the three departments of the government in
this manner: “The legislative power shall be vested in a Congress of the Philippines which shall
consist of a Senate and a House of Representatives.” “The executive power shall be vested in
a President of the Philippines.” The judicial powers shall be vested in one Supreme Court and
in such inferior courts as may be provided by law.” These provisions not only establish a
separation of powers by actual division but also confer plenary legislative, executive, and judicial
powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, “a
grant of legislative power means a grant of all the legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government.” If
this is true of the legislative power which is exercised by two chambers with a combined
membership [at that time] of more than 120 and of the judicial power which is vested in a
hierarchy of courts, it can equally if not more appropriately apply to the executive power which is
vested in one official — the president. He personifies the executive branch. There is a unity in
the executive branch absent from the two other branches of government. The president is not
the chief of many executives. He is the executive. His direction of the executive branch can be
more immediate and direct than the United States president because he is given by express
provision of the constitution control over all executive departments, bureaus and offices. [55]
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the
framers of which, early on, arrived at a general opinion in favor of a strong Executive in the
Philippines.”[56] Since then, reeling from the aftermath of martial law, our most recent Charter
has restricted the President’s powers as Commander-in-Chief. The same, however, cannot be
said of the President’s powers as Chief Executive.

In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President’s power to forbid
the return of her exiled predecessor. The rationale for the majority’s ruling rested on the
President’s
… unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.[57] [Underscoring supplied. Italics in the
original.]
Thus, the President’s authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-Chief
powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a
declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the
President) of the Revised Administrative Code of 1987, which states:
SEC. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order. [Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a
state of rebellion is an utter superfluity.[58] At most, it only gives notice to the nation that such a
state exists and that the armed forces may be called to prevent or suppress it.[59] Perhaps the
declaration may wreak emotional effects upon the perceived enemies of the State, even on the
entire nation. But this Court’s mandate is to probe only into the legal consequences of the
declaration. This Court finds that such a declaration is devoid of any legal significance. For all
legal intents, the declaration is deemed not written.

Should there be any “confusion” generated by the issuance of Proclamation No. 427 and
General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere
declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. [60]
Indeed, if a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus,[61] then it is with more reason
that a simple declaration of a state of rebellion could not bring about these conditions.[62] At any
rate, the presidential issuances themselves call for the suppression of the rebellion “with due
regard to constitutional rights.”

For the same reasons, apprehensions that the military and police authorities may resort to
warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court
held that “[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of
Court,[63] if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus,
not based on the declaration of a ‘state of rebellion.’”[64] In other words, a person may be
subjected to a warrantless arrest for the crime of rebellion whether or not the President has
declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present.

It is not disputed that the President has full discretionary power to call out the armed forces and
to determine the necessity for the exercise of such power. While the Court may examine
whether the power was exercised within constitutional limits or in a manner constituting grave
abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion
that the President acted without factual basis.[65]

The argument that the declaration of a state of rebellion amounts to a declaration of martial law
and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no
indication that military tribunals have replaced civil courts in the “theater of war” or that military
authorities have taken over the functions of civil government. There is no allegation of
curtailment of civil or political rights. There is no indication that the President has exercised
judicial and legislative powers. In short, there is no illustration that the President has attempted
to exercise or has exercised martial law powers.

Nor by any stretch of the imagination can the declaration constitute an indirect exercise of
emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23
(2), Article VI of the Constitution:
Sec. 23. (1) ….

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
The petitions do not cite a specific instance where the President has attempted to or has
exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The
President, in declaring a state of rebellion and in calling out the armed forces, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are
purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed
to the delegated legislative powers contemplated by Section 23 (2), Article VI.

WHEREFORE, the petitions are hereby DISMISSED.

SO ORDERED.

[chbreak]

DISTINCTION BETWEEN COMMANDER-IN-CHIEF AND EMERGENCY POWERS

PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006)

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. [1]
Superior strength - the use of force - cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government
and in favor of the poor, the oppressed, the marginalized, the dispossessed and the
weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity."[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-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]

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines
and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists - the historical enemies of the democratic
Philippine State - who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State - by obstructing governance
including hindering the growth of the economy and sabotaging the people's confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State -
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people's confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief
of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People's Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo. [4] They considered the aim to
oust or assassinate the President and take-over the reigns of government as a clear and
present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation
from petitioners' counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents' task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of
the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show 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." [5]

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People's Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents. [7] Prior to
his arrest, Lt. San Juan announced through DZRH that the "Magdalo's D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino's brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group's plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army's elite Scout Ranger. Lim said "it was all systems
go for the planned movement against Arroyo."[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo
protests to be held on February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the chain of command to
join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable
that the President's ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three
(3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.[10]

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."[11]

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. [12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. [13]

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded
the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid
Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the standards - and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 - we will recommend a
'takeover.'" National Telecommunications' Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.[14]

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran's lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during
a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that
(1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or
"prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom
of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power
to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to redress their
grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections
1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII
of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming that
PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, 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 Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.
In respondents' Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people's right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge
A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a "self-starting capacity."[23]
Courts may exercise such power only when the following requisites are present: first, there must
be an actual case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest opportunity; and
fourth, the decision of the constitutional question must be necessary to the determination of the
case itself.[24]

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo's
issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,[26] so that a declaration thereon would be of no practical use or value.[27]
Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the
vital issues that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."[30]

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;[31] second, the exceptional character of the situation and
the paramount public interest is involved;[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; [33] and fourth, the
case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public's
interest, involving as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the extent of the
protection given by constitutional guarantees.[35] And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary.[36] However,
they failed to take into account the Chief Justice's very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.

II-Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative
to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." [37] In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must
be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."[38] Succinctly put, the plaintiff's standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:[40] "In matter of mere public right, however...the people are
the real parties...It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan[41] held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled
that for a private individual to invoke the judicial power to determine the validity of an executive
or legislative action, he must show that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general interest common to all members of
the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,[44] it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,[45] Manila Race Horse Trainers' Association v. De la Fuente,[46] Pascual v. Secretary of
Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,[49] where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec,[50] this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings. [51]

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress' taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a people's
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue
as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a
concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the

Court reiterated the "direct injury" test with respect to concerned citizens' cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP in
Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60]
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Tañada v. Tuvera,[64] that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of
PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held
that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general
an interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition
as there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she
is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."

This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,[67] may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people [68] but he
may be removed from office only in the mode provided by law and that is by impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President's exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72] Aquino,
Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line
defining "political questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government."[75]
Barcelon and Montenegro were in unison in declaring that the authority to decide whether an
exigency has arisen belongs to the President and his decision is final and conclusive on
the courts. Lansang took the opposite view. There, the members of the Court were unanimous
in the conviction that the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic
Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn, constitutionally supreme."[76] In
1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was
almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a
political or justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted
Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God."[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar to Lansang. While the Court considered the
President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion." This ruling is mainly a result of the Court's reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual controversies involving rights
which are legally demandable and enforceable," but also "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82]

As to how the Court may inquire into the President's exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President's
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down
is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the President's decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo's exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners presented nothing to
refute such events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."[84] But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to
the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis,
the ruin of the State...
It is wrong therefore to wish to make political institutions as strong as to render it impossible to
suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people's first intention is that the State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship."[88]

Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it. [89]
Machiavelli - in contrast to Locke, Rosseau and Mill - sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw "no reason why absolutism should not be used as
a means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life."[92] He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power."[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short...Dictatorship should always be strictly
legitimate in character...Final authority to determine the need for dictatorship in any
given case must never rest with the dictator himself..."[94] and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] "It is a problem of
concentrating power - in a government where power has consciously been divided - to cope
with... situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."[96] Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means - i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be exercised under
a strict time limitation; and last, the objective of emergency action must be the defense of
the constitutional order."[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by emergency.[98]
Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional
dictatorship," thus:
1) No general regime 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 order...

2) ...the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator...

3) No government should initiate a constitutional dictatorship without making specific provisions

for its termination...

4) ...all uses of emergency powers and all readjustments in the organization of the government
should be effected in pursuit of constitutional or legal requirements...

5) ... no dictatorial institution should be adopted, no right invaded, no regular procedure altered
any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect...

7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should
never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it
was instituted...

11) ...the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship...[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon
procedural limitations, and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the meaning of constitutionalism, he
insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of government but,
but rather in the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists - from
Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and,
eventually, to McIlwain's "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson's "balanced power structure."[102]
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic integrity
and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim
that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a "chilling effect" to the citizens.

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

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,[104] the US Supreme Court held that "we have not
recognized an "overbreadth' doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,[105] it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held void on
its face and when 'such summary action' is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from 'pure
speech' toward conduct and that conduct -even if expressive - falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"[107] The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law's "very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even attempt to show whether this
situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application."[110] It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in
free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed to establish that
men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII ... do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power

The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office's vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the President's calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of
our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President's authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo's authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State's extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."[113]

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the keeping of the President
for the purpose of enabling him to secure the people from harm and to restore order so that they
can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo's calling-out power for the armed forces to assist
her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, [115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of
the Philippines, he will, among others, "execute its laws." [116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,[117] including the Philippine National Police[118] under the
Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They
assail the clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

Petitioners' contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted[120] from Former President Marcos' Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial
law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. --- Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

Sec. 3. Administrative Orders. --- Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.

Sec. 4. Proclamations. --- Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. --- Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or
special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo's exercise of legislative power by
issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot
call the military to enforce or implement certain laws, such as customs laws, laws governing
family and property relations, laws on obligations and contracts and the like. She can only order
the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII
of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or business affected with public
interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval was
President Marcos' Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over "the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government
of its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President's authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court,
Section 18, Article VII grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the absence of a Congressional
enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each other. [123]
Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate
to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate
it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube
Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President's military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ."[126]
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a limited
view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by
a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b)
natural disaster,[129] and c) national security.[130]

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.[131] This is evident in the Records of the Constitutional
Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears
in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or
natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned
public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another department -
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances "the
various branches, executive, legislative, and judicial,' given the ability to act, are called upon "to
perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused[135] and may afford an opportunity for abuse in the manner of
application.[136] The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the President's calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens' constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are "acts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become
one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions - or threats of the use of force as the
most recent by the United States against Iraq - consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country's terrorist is another country's
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts - the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to
reach a consensus on the basic issue of definition. The organization has intensified its efforts
recently, but has been unable to bridge the gap between those who associate "terrorism" with
any violent act by non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) - which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims - the Kashmiri resistance groups - who are terrorists in the perception of India,
liberation fighters in that of Pakistan - the earlier Contras in Nicaragua - freedom fighters for the
United States, terrorists for the Socialist camp - or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way - because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is
in the position of an occupying power or in that of a rival, or adversary, of an occupying power in
a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in
each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in
regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital
issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states - and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! - has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.[141]
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized." [142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017;
third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of
Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and

x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release
on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally. [147]

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, 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
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers' conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly
cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the auspices under which
the meeting was held but as to its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution protects.
If the persons assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has
a right to prevent."[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the
citizens' right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.[150] The first time
they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When
a person's right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners' narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune's offices were searched without warrant;
second, the police operatives seized several materials for publication; third, the search was
conducted at about 1:00 o' clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a "strong
presence,' to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards -and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 - we will recommend a 'takeover.'" National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made
in the presence of the lawful occupant thereof or any member of his family or in the absence
of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.

Not only that, the search violated petitioners' freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy.
It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the
Tribune's offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to
get the clippings. Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.[155]

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o'clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature to say this,
we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President
for, as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens' rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 - a supervening event - would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained
by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017's extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting
as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard - that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed deleted from the
said G.O. While "terrorism" has been denounced generally in media, no law has been enacted
to guide the military, and eventually the courts, to determine the limits of the AFP's authority in
carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that
(1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal
of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition
of standards on media or any prior restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action and/or
relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly restrain our people's
liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-GENERALE VS.

HON. RONALDO PUNO (G.R. No. 190259, June 07, 2011)

DECISION

ABAD, J.:

On November 24, 2009, the day after the gruesome massacre of 57 men and women, including
some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation 1946,[1]
placing "the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a
state of emergency." She directed the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP) "to undertake such measures as may be allowed by the Constitution and
by law to prevent and suppress all incidents of lawless violence" in the named places.

Three days later or on November 27, President Arroyo also issued Administrative Order 273
(AO 273)[2] "transferring" supervision of the Autonomous Region of Muslim Mindanao (ARMM)
from the Office of the President to the Department of Interior and Local Government
(DILG). But, due to issues raised over the terminology used in AO 273, the President issued
Administrative Order 273-A (AO 273-A) amending the former, by "delegating" instead of
"transferring" supervision of the ARMM to the DILG.[3]

Claiming that the President's issuances encroached on the ARMM's autonomy, petitioners Datu
Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,[4] filed
this petition for prohibition under Rule 65. They alleged that the proclamation and the orders
empowered the DILG Secretary to take over ARMM's operations and seize the regional
government's powers, in violation of the principle of local autonomy under Republic Act 9054
(also known as the Expanded ARMM Act) and the Constitution. The President gave the DILG
Secretary the power to exercise, not merely administrative supervision, but control over the
ARMM since the latter could suspend ARMM officials and replace them.[5]

Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of
emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no
critical violent incidents occurred. The deployment of troops and the taking over of the ARMM
constitutes an invalid exercise of the President's emergency powers.[6] Petitioners asked that
Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and that
respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents,[7] the Office of the Solicitor General (OSG) insisted that the
President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore
peace and order in subject places.[8] She issued the proclamation pursuant to her "calling out"
power[9] as Commander-in-Chief under the first sentence of Section 18, Article VII of the
Constitution. The determination of the need to exercise this power rests solely on her
wisdom.[10] She must use her judgment based on intelligence reports and such best information
as are available to her to call out the armed forces to suppress and prevent lawless violence
wherever and whenever these reared their ugly heads.

On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory
powers over the ARMM to the DILG Secretary who was her alter ego any way. These orders
did not authorize a take over of the ARMM. They did not give him blanket authority to suspend
or replace ARMM officials.[11] The delegation was necessary to facilitate the investigation of the
mass killings.[12] Further, the assailed proclamation and administrative orders did not provide for
the exercise of emergency powers.[13]

Although normalcy has in the meantime returned to the places subject of this petition, it might be
relevant to rule on the issues raised in this petition since some acts done pursuant to
Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal
cases that the government subsequently filed against those believed affected by such
proclamation and orders.

The Issues Presented

The issues presented in this case are:

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local
autonomy under Section 16, Article X of the Constitution, and Section 1, Article V of the
Expanded ARMM Organic Act;

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out
the AFP and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao,
Sultan Kudarat, and Cotabato City; and

3. Whether or not the President had factual bases for her actions.

The Rulings of the Court

We dismiss the petition.

One. The claim of petitioners that the subject proclamation and administrative orders violate the
principle of local autonomy is anchored on the allegation that, through them, the President
authorized the DILG Secretary to take over the operations of the ARMM and assume direct
governmental powers over the region.

But, in the first place, the DILG Secretary did not take over control of the powers of the
ARMM. After law enforcement agents took respondent Governor of ARMM into custody for
alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner
Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on
succession found in Article VII, Section 12,[14] of RA 9054. In turn, Acting Governor Adiong
named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting
ARMM Vice-Governor.[15] In short, the DILG Secretary did not take over the administration or
operations of the ARMM.

Two. Petitioners contend that the President unlawfully exercised emergency powers when she
ordered the deployment of AFP and PNP personnel in the places mentioned in the
proclamation.[16] But such deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three
places mentioned. And she did not act pursuant to any law enacted by Congress that
authorized her to exercise extraordinary powers. The calling out of the armed forces to prevent
or suppress lawless violence in such places is a power that the Constitution directly vests in the
President. She did not need a congressional authority to exercise the same.

Three. The President's call on the armed forces to prevent or suppress lawless violence
springs from the power vested in her under Section 18, Article VII of the Constitution, which
provides.[17]

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. x x x

While it is true that the Court may inquire into the factual bases for the President's exercise of
the above power,[18] it would generally defer to her judgment on the matter. As the Court
acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,[19] it is clearly to the
President that the Constitution entrusts the determination of the need for calling out the armed
forces to prevent and suppress lawless violence. Unless it is shown that such determination
was attended by grave abuse of discretion, the Court will accord respect to the President's
judgment. Thus, the Court said:

If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always accessible
to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence network
to gather information, some of which may be classified as highly confidential or affecting
the security of the state. In the exercise of the power to call, on-the-spot decisions may
be imperatively necessary in emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out the military to prevent or
suppress lawless violence must be done swiftly and decisively if it were to have any
effect at all. x x x.[20]

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of
Maguindanao, Sultan Kudarat and Cotabato City, as well as the President's exercise of the
"calling out" power had no factual basis. They simply alleged that, since not all areas under the
ARMM were placed under a state of emergency, it follows that the take over of the entire ARMM
by the DILG Secretary had no basis too.[21]

But, apart from the fact that there was no such take over to begin with, the OSG also clearly
explained the factual bases for the President's decision to call out the armed forces, as follows:

The Ampatuan and Mangudadatu clans are prominent families engaged in the political
control of Maguindanao. It is also a known fact that both families have an arsenal of
armed followers who hold elective positions in various parts of the ARMM and the rest of
Mindanao.

Considering the fact that the principal victims of the brutal bloodshed are members of
the Mangudadatu family and the main perpetrators of the brutal killings are members and
followers of the Ampatuan family, both the military and police had to prepare for and
prevent reported retaliatory actions from the Mangudadatu clan and additional offensive
measures from the Ampatuan clan.

xxxx

The Ampatuan forces are estimated to be approximately two thousand four hundred
(2,400) persons, equipped with about two thousand (2,000) firearms, about four hundred
(400) of which have been accounted for. x x x

As for the Mangudadatus, they have an estimated one thousand eight hundred (1,800)
personnel, with about two hundred (200) firearms. x x x

Apart from their own personal forces, both clans have Special Civilian Auxiliary Army
(SCAA) personnel who support them: about five hundred (500) for the Ampatuans and
three hundred (300) for the Mangudadatus.

What could be worse than the armed clash of two warring clans and their armed
supporters, especially in light of intelligence reports on the potential involvement of rebel
armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu Andal Ampatuan,
Sr. to show support and sympathy for the victims. The said attack shall worsen the age-
old territorial dispute between the said RAG and the Ampatuan family.

xxxx

On the other hand, RAG faction which is based in Sultan Kudarat was reported to have
received three million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for the
procurement of ammunition. The said faction is a force to reckon with because the group
is well capable of launching a series of violent activities to divert the attention of the
people and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu family.
The Cotabato-based faction has the strength of about five hundred (500) persons and
three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has the
strength of about four hundred (400) persons and three hundred (300) firearms and was
reported to be moving towards Maguindanao to support the Mangudadatu clan in its
armed fight against the Ampatuans.[22]

In other words, the imminence of violence and anarchy at the time the President issued
Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and
hostilities in the places mentioned. Progress reports also indicated that there was movement in
these places of both high-powered firearms and armed men sympathetic to the two
clans.[23] Thus, to pacify the people's fears and stabilize the situation, the President had to take
preventive action. She called out the armed forces to control the proliferation of loose firearms
and dismantle the armed groups that continuously threatened the peace and security in the
affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn the
declaration of a state of emergency under Proclamation 1946. It has been reported[24] that the
declaration would not be lifted soon because there is still a need to disband private armies and
confiscate loose firearms. Apparently, the presence of troops in those places is still necessary to
ease fear and tension among the citizenry and prevent and suppress any violence that may still
erupt, despite the passage of more than a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the
subject places and the calling out of the armed forces to prevent or suppress lawless violence
there have clearly no factual bases, the Court must respect the President's actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

[chbreak]

CONTRACTING AND GUARANTEEING FOREIGN LOANS

SPOUSES CONSTANTINO VS. HON. JOSE B. CUISIA (G.R. NO. 106064, October 13, 2005)

DECISION

TINGA, J.:

The quagmire that is the foreign debt problem has especially confounded developing nations
around the world for decades. It has defied easy solutions acceptable both to debtor countries
and their creditors. It has also emerged as cause celebre for various political movements and
grassroots activists and the wellspring of much scholarly thought and debate.

The present petition illustrates some of the ideological and functional differences between
experts on how to achieve debt relief. However, this being a court of law, not an academic forum
or a convention on development economics, our resolution has to hinge on the presented legal
issues which center on the appreciation of the constitutional provision that empowers the
President to contract and guarantee foreign loans. The ultimate choice is between a restrictive
reading of the constitutional provision and an alimentative application thereof consistent with
time-honored principles on executive power and the alter ego doctrine.

This Petition for Certiorari, Prohibition and Mandamus assails said contracts which were entered
into pursuant to the Philippine Comprehensive Financing Program for 1992 ("Financing
Program" or "Program"). It seeks to enjoin respondents from executing additional debt-relief
contracts pursuant thereto. It also urges the Court to issue an order compelling the Secretary of
Justice to institute criminal and administrative cases against respondents for acts which
circumvent or negate the provisions Art. XII of the Constitution.[1]

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato Constantino, Jr. and
Lourdes Constantino and their minor children, Renato Redentor, Anna Marika Lissa, Nina
Elissa, and Anna Karmina, Filomeno Sta. Ana III, and the Freedom from Debt Coalition, a non-
stock, non-profit, non-government organization that advocates a "pro-people and just Philippine
debt policy."[2] Named respondents were the then Governor of the Bangko Sentral ng Pilipinas,
the Secretary of Finance, the National Treasurer, and the Philippine Debt Negotiation Chairman
Emmanuel V. Pelaez.[3] All respondents were members of the Philippine panel tasked to
negotiate with the country's foreign creditors pursuant to the Financing Program.

The operative facts are sparse and there is little need to elaborate on them.

The Financing Program was the culmination of efforts that began during the term of former
President Corazon Aquino to manage the country's external debt problem through a negotiation-
oriented debt strategy involving cooperation and negotiation with foreign creditors. [4] Pursuant to
this strategy, the Aquino government entered into three restructuring agreements with
representatives of foreign creditor governments during the period of 1986 to 1991. [5] During the
same period, three similarly-oriented restructuring agreements were executed with commercial
bank creditors.[6]

On 28 February 1992, the Philippine Debt Negotiating Team, chaired by respondent Pelaez,
negotiated an agreement with the country's Bank Advisory Committee, representing all foreign
commercial bank creditors, on the Financing Program which respondents characterized as "a
multi-option financing package."[7] The Program was scheduled to be executed on 24 July 1992
by respondents in behalf of the Republic. Nonetheless, petitioners alleged that even prior to the
execution of the Program respondents had already implemented its "buyback component" when
on 15 May 1992, the Philippines bought back P1.26 billion of external debts pursuant to the
Program.[8]

The petition sought to enjoin the ratification of the Program, but the Court did not issue any
injunctive relief. Hence, it came to pass that the Program was signed in London as scheduled.
The petition still has to be resolved though as petitioners seek the annulment "of any and all
acts done by respondents, their subordinates and any other public officer pursuant to the
agreement and program in question."[9] Even after the signing of the Program, respondents
themselves acknowledged that the remaining principal objective of the petition is to set aside
respondents' actions.[10]

Petitioners characterize the Financing Program as a package offered to the country's foreign
creditors consisting of two debt-relief options.[11] The first option was a cash buyback of portions
of the Philippine foreign debt at a discount.[12] The second option allowed creditors to convert
existing Philippine debt instruments into any of three kinds of bonds/securities: (1) new money
bonds with a five-year grace period and 17 years final maturity, the purchase of which would
allow the creditors to convert their eligible debt papers into bearer bonds with the same terms;
(2) interest-reduction bonds with a maturity of 25 years; and (3) principal-collateralized interest-
reduction bonds with a maturity of 25 years.[13]

On the other hand, according to respondents the Financing Program would cover about U.S.
$5.3 billion of foreign commercial debts and it was expected to deal comprehensively with the
commercial bank debt problem of the country and pave the way for the country's access to
capital markets.[14] They add that the Program carried three basic options from which foreign
bank lenders could choose, namely: to lend money, to exchange existing restructured Philippine
debts with an interest reduction bond; or to exchange the same Philippine debts with a principal
collateralized interest reduction bond.[15]

Issues for Resolution

Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the Financing Program as
beyond the powers granted to the President under Section 20,

Article VII of the Constitution.[16] The provision states that the President may contract or
guarantee foreign loans in behalf of the Republic. It is claimed that the buyback and
securitization/bond conversion schemes are neither "loans" nor "guarantees," and hence
beyond the power of the President to execute.

Second, according to petitioners even assuming that the contracts under the Financing Program
are constitutionally permissible, yet it is only the President who may exercise the power to enter
into these contracts and such power may not be delegated to respondents.
Third, petitioners argue that the Financing Program violates several constitutional policies and
that contracts executed or to be executed pursuant thereto were or will be done by respondents
with grave abuse of discretion amounting to lack or excess of jurisdiction.

Petitioners contend that the Financing Program was made available for debts that were either
fraudulently contracted or void. In this regard, petitioners rely on a 1992 Commission on Audit
(COA) report which identified several "behest" loans as either contracted or guaranteed
fraudulently during the Marcos regime.[17] They posit that since these and other similar debts,
such as the ones pertaining to the Bataan Nuclear Power Plant,[18] were eligible for buyback or
conversion under the Program, the resultant relief agreements pertaining thereto would be void
for being waivers of the Republic's right to repudiate the void or fraudulently contracted loans.

For their part, respondents dispute the points raised by petitioners. They also question the
standing of petitioners to institute the present petition and the justiciability of the issues
presented.

The Court shall tackle the procedural questions ahead of the substantive issues.

The Court's Rulings

Standing of Petitioners

The individual petitioners are suing as citizens of the Philippines; those among them who are of
age are suing in their additional capacity as taxpayers.[19] It is not indicated in what capacity the
Freedom from Debt Coalition is suing.

Respondents point out that petitioners have no standing to file the present suit since the rule
allowing taxpayers to assail executive or legislative acts has been applied only to cases where
the constitutionality of a statute is involved. At the same time, however, they urge this Court to
exercise its wide discretion and waive petitioners' lack of standing. They invoke the
transcendental importance of resolving the validity of the questioned debt-relief contracts and
others of similar import.

The recent trend on locus standi has veered towards a liberal treatment in taxpayer's suits. In
Tatad v. Garcia Jr.,[20] this Court reiterated that the "prevailing doctrines in taxpayer's suits are to
allow taxpayers to question contracts entered into by the national government or government
owned and controlled corporations allegedly in contravention of law." [21] A taxpayer is allowed to
sue where there is a claim that public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.[22]

Moreover, a ruling on the issues of this case will not only determine the validity or invalidity of
the subject pre-termination and bond-conversion of foreign debts but also create a precedent for
other debts or debt-related contracts executed or to be executed in behalf of the President of the
Philippines by the Secretary of Finance. Considering the reported Philippine debt of P3.80
trillion as of November 2004, the foreign public borrowing component of which reached P1.81
trillion in November, equivalent to 47.6% of total government borrowings, [23] the importance of
the issues raised and the magnitude of the public interest involved are indubitable.

Thus, the Court's cognizance of this petition is also based on the consideration that the
determination of the issues presented will have a bearing on the state of the country's economy,
its international financial ratings, and perhaps even the Filipinos' way of life. Seen in this light,
the transcendental importance of the issues herein presented cannot be doubted.
Where constitutional issues are properly raised in the context of alleged facts, procedural
questions acquire a relatively minor significance.[24] We thus hold that by the very nature of the
power wielded by the President, the effect of using this power on the economy, and the well-
being in general of the Filipino nation, the Court must set aside the procedural barrier of
standing and rule on the justiciable issues presented by the parties.

Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues at bar, in their
Rejoinder they ask this Court to dismiss the Petition. Allegedly, petitioners' arguments are mere
attempts at abstraction.[25] Respondents are correct to some degree. Several issues, as shall be
discussed in due course, are not ripe for adjudication.

The allegation that respondents waived the Philippines' right to repudiate void and fraudulently
contracted loans by executing the debt-relief agreements is, on many levels, not justiciable.

In the first place, records do not show whether the so-called behest loans-or other allegedly void
or fraudulently contracted loans for that matter-were subject of the debt-relief contracts entered
into under the Financing Program.

Moreover, asserting a right to repudiate void or fraudulently contracted loans begs the question
of whether indeed particular loans are void or fraudulently contracted. Fraudulently contracted
loans are voidable and, as such, valid and enforceable until annulled by the courts. On the other
hand, void contracts that have already been fulfilled must be declared void in view of the maxim
that no one is allowed to take the law in his own hands.[26] Petitioners' theory depends on a prior
annulment or declaration of nullity of the pre-existing loans, which thus far have not been
submitted to this Court. Additionally, void contracts are unratifiable by their very nature; they are
null and void ab initio. Consequently, from the viewpoint of civil law, what petitioners present as
the Republic's "right to repudiate" is yet a contingent right, one which cannot be allowed as an
anticipatory basis for annulling the debt-relief contracts. Petitioners' contention that the debt-
relief agreements are tantamount to waivers of the Republic's "right to repudiate" so-called
behest loans is without legal foundation.

It may not be amiss to recognize that there are many advocates of the position that the Republic
should renege on obligations that are considered as "illegitimate." However, should the
executive branch unilaterally, and possibly even without prior court determination of the validity
or invalidity of these contracts, repudiate or otherwise declare to the international community its
resolve not to recognize a certain set of "illegitimate" loans, adverse repercussions [27] would
come into play. Dr. Felipe Medalla, former Director General of the National Economic
Development Authority, has warned, thus:
One way to reduce debt service is to repudiate debts, totally or selectively. Taken to its limit,
however, such a strategy would put the Philippines at such odds with too many enemies.
Foreign commercial banks by themselves and without the cooperation of creditor governments,
especially the United States, may not be in a position to inflict much damage, but concerted
sanctions from commercial banks, multilateral financial institutions and creditor governments
would affect not only our sources of credit but also our access to markets for our exports and
the level of development assistance. . . . [T]he country might face concerted sanctions even if
debts were repudiated only selectively.

The point that must be stressed is that repudiation is not an attractive alternative if net payments
to creditors in the short and medium-run can be reduced through an agreement (as opposed to
a unilaterally set ceiling on debt service payments) which provides for both rescheduling of
principal and capitalization of interest, or its equivalent in new loans, which would make it easier
for the country to pay interest.[28]
Sovereign default is not new to the Philippine setting. In October 1983, the Philippines declared
a moratorium on principal payments on its external debts that eventually lasted four years, [29]
that virtually closed the country's access to new foreign money[30] and drove investors to leave
the Philippine market, resulting in some devastating consequences.[31] It would appear then that
this beguilingly attractive and dangerously simplistic solution deserves the utmost circumspect
cogitation before it is resorted to.

In any event, the discretion on the matter lies not with the courts but with the executive. Thus,
the Program was conceptualized as an offshoot of the decision made by then President Aquino
that the Philippines should recognize its sovereign debts[32] despite the controversy that
engulfed many debts incurred during the Marcos era. It is a scheme whereby the Philippines
restructured its debts following a negotiated approach instead of a default approach to manage
the bleak Philippine debt situation.

As a final point, petitioners have no real basis to fret over a possible waiver of the right to
repudiate void contracts. Even assuming that spurious loans had become the subject of debt-
relief contracts, respondents unequivocally assert that the Republic did not waive any right to
repudiate void or fraudulently contracted loans, it having incorporated a "no-waiver" clause in
the agreements.[33]

Substantive Issues

It is helpful to put the matter in perspective before moving on to the merits. The Financing
Program extinguished portions of the country's pre-existing loans through either debt buyback or
bond-conversion. The buyback approach essentially pre-terminated portions of public debts
while the bond-conversion scheme extinguished public debts through the obtention of a new
loan by virtue of a sovereign bond issuance, the proceeds of which in turn were used for
terminating the original loan.

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the buyback and bond-conversion
schemes do not constitute the loan "contract" or "guarantee" contemplated in the Constitution
and are consequently prohibited. Sec. 20, Art. VII of the Constitution provides, viz:
The President may contract or guarantee foreign loans in behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board and subject to such limitations as
may be provided under law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the government or government-owned
and controlled corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
On Bond-conversion

Loans are transactions wherein the owner of a property allows another party to use the property
and where customarily, the latter promises to return the property after a specified period with
payment for its use, called interest.[34] On the other hand, bonds are interest-bearing or
discounted government or corporate securities that obligate the issuer to pay the bondholder a
specified sum of money, usually at specific intervals, and to repay the principal amount of the
loan at maturity.[35] The word "bond" means contract, agreement, or guarantee. All of these
terms are applicable to the securities known as bonds. An investor who purchases a bond is
lending money to the issuer, and the bond represents the issuer's contractual promise to pay
interest and repay principal according to specific terms. A short-term bond is often called a
note.[36]
The language of the Constitution is simple and clear as it is broad. It allows the President to
contract and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of
loans or distinctions as to which kinds of debt instruments are more onerous than others. This
Court may not ascribe to the Constitution meanings and restrictions that would unduly burden
the powers of the President. The plain, clear and unambiguous language of the Constitution
should be construed in a sense that will allow the full exercise of the power provided therein. It
would be the worst kind of judicial legislation if the courts were to misconstrue and change the
meaning of the organic act.

The only restriction that the Constitution provides, aside from the prior concurrence of the
Monetary Board, is that the loans must be subject to limitations provided by law. In this regard,
we note that Republic Act (R.A.) No. 245 as amended by Pres. Decree (P.D.) No. 142, s. 1973,
entitled An Act Authorizing the Secretary of Finance to Borrow to Meet Public Expenditures
Authorized by Law, and for Other Purposes, allows foreign loans to be contracted in the form of,
inter alia, bonds. Thus:
Sec. 1. In order to meet public expenditures authorized by law or to provide for the purchase,
redemption, or refunding of any obligations, either direct or guaranteed of the Philippine
Government, the Secretary of Finance, with the approval of the President of the
Philippines, after consultation with the Monetary Board, is authorized to borrow from
time to time on the credit of the Republic of the Philippines such sum or sums as in his
judgment may be necessary, and to issue therefor evidences of indebtedness of the
Philippine Government."
Such evidences of indebtedness may be of the following types:

....

c. Treasury bonds, notes, securities or other evidences of indebtedness having maturities

of one year or more but not exceeding twenty-five years from the date of issue. (Emphasis
supplied.)
Under the foregoing provisions, sovereign bonds may be issued not only to supplement
government expenditures but also to provide for the purchase,[37] redemption,[38] or refunding[39]
of any obligation, either direct or guaranteed, of the Philippine Government.

Petitioners, however, point out that a supposed difference between contracting a loan and
issuing bonds is that the former creates a definite creditor-debtor relationship between the
parties while the latter does not.[40] They explain that a contract of loan enables the debtor to
restructure or novate the loan, which benefit is lost upon the conversion of the debts to bearer
bonds such that "the Philippines surrenders the novatable character of a loan contract for the
irrevocable and unpostponable demandability of a bearer bond." [41] Allegedly, the Constitution
prohibits the President from issuing bonds which are "far more onerous" than loans. [42]

This line of thinking is flawed to say the least. The negotiable character of the subject bonds is
not mutually exclusive with the Republic's freedom to negotiate with bondholders for the revision
of the terms of the debt. Moreover, the securities market provides some flexibility-if the
Philippines wants to pay in advance, it can buy out its bonds in the market; if interest rates go
down but the Philippines does not have money to retire the bonds, it can replace the old bonds
with new ones; if it defaults on the bonds, the bondholders shall organize and bring about a re-
negotiation or settlement.[43] In fact, several countries have restructured their sovereign bonds in
view either of inability and/or unwillingness to pay the indebtedness.[44] Petitioners have not
presented a plausible reason that would preclude the Philippines from acting in a similar
fashion, should it so opt.

This theory may even be dismissed in a perfunctory manner since petitioners are merely
expecting that the Philippines would opt to restructure the bonds but with the negotiable
character of the bonds, would be prevented from so doing. This is a contingency which
petitioners do not assert as having come to pass or even imminent. Consummated acts of the
executive cannot be struck down by this Court merely on the basis of petitioners' anticipatory
cavils.

On the Buyback Scheme

In their Comment, petitioners assert that the power to pay public debts lies with Congress and
was deliberately withheld by the Constitution from the President.[45] It is true that in the balance
of power between the three branches of government, it is Congress that manages the country's
coffers by virtue of its taxing and spending powers. However, the law-making authority has
promulgated a law ordaining an automatic appropriations provision for debt servicing[46] by virtue
of which the President is empowered to execute debt payments without the need for further
appropriations. Regarding these legislative enactments, this Court has held, viz:
Congress ... deliberates or acts on the budget proposals of the President, and Congress in the
exercise of its own judgment and wisdom formulates an appropriation act precisely following the
process established by the Constitution, which specifies that no money may be paid from the
Treasury except in accordance with an appropriation made by law.

Debt service is not included in the General Appropriation Act, since authorization therefor
already exists under RA Nos. 4860 and 245, as amended, and PD 1967. Precisely in the light of
this subsisting authorization as embodied in said Republic Acts and PD for debt service,
Congress does not concern itself with details for implementation by the Executive, but largely
with annual levels and approval thereof upon due deliberations as part of the whole obligation
program for the year. Upon such approval, Congress has spoken and cannot be said to have
delegated its wisdom to the Executive, on whose part lies the implementation or execution of the
legislative wisdom.[47]
Specific legal authority for the buyback of loans is established under Section 2 of Republic Act
(R.A.) No. 240, viz:
Sec. 2. The Secretary of Finance shall cause to be paid out of any moneys in the National
Treasury not otherwise appropriated, or from any sinking funds provided for the purpose
by law, any interest falling due, or accruing, on any portion of the public debt authorized
by law. He shall also cause to be paid out of any such money, or from any such sinking
funds the principal amount of any obligations which have matured, or which have been
called for redemption or for which redemption has been demanded in accordance with terms
prescribed by him prior to date of issue: Provided, however, That he may, if he so chooses and
if the holder is willing, exchange any such obligation with any other direct or guaranteed
obligation or obligations of the Philippine Government of equivalent value. In the case of
interest-bearing obligations, he shall pay not less than their face value; in the case of obligations
issued at a discount he shall pay the face value at maturity; or, if redeemed prior to maturity,
such portion of the face value as is prescribed by the terms and conditions under which
such obligations were originally issued. (Emphasis supplied.)
The afore-quoted provisions of law specifically allow the President to pre-terminate debts
without further action from Congress.

Petitioners claim that the buyback scheme is neither a guarantee nor a loan since its underlying
intent is to extinguish debts that are not yet due and demandable.[48] Thus, they suggest that
contracts entered pursuant to the buyback scheme are unconstitutional for not being among
those contemplated in Sec. 20, Art. VII of the Constitution.

Buyback is a necessary power which springs from the grant of the foreign borrowing power.
Every statute is understood, by implication, to contain all such provisions as may be necessary
to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction
which it grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms.[49] The President is not empowered to borrow money from
foreign banks and governments on the credit of the Republic only to be left bereft of authority to
implement the payment despite appropriations therefor.

Even petitioners concede that "[t]he Constitution, as a rule, does not enumerate-let alone
enumerate all-the acts which the President (or any other public officer) may not do," [50] and "[t]he
fact that the Constitution does not explicitly bar the President from exercising a power does not
mean that he or she does not have that power." [51] It is inescapable from the standpoint of
reason and necessity that the authority to contract foreign loans and guarantees without
restrictions on payment or manner thereof coupled with the availability of the corresponding
appropriations, must include the power to effect payments or to make payments unavailing by
either restructuring the loans or even refusing to make any payment altogether.

More fundamentally, when taken in the context of sovereign debts, a buyback is simply the
purchase by the sovereign issuer of its own debts at a discount. Clearly then, the objection to
the validity of the buyback scheme is without basis.

Second Issue: Delegation of Power

Petitioners stress that unlike other powers which may be validly delegated by the President, the
power to incur foreign debts is expressly reserved by the Constitution in the person of the
President. They argue that the gravity by which the exercise of the power will affect the Filipino
nation requires that the President alone must exercise this power. They submit that the
requirement of prior concurrence of an entity specifically named by the Constitution-the
Monetary Board-reinforces the submission that not respondents but the President "alone and
personally" can validly bind the country.

Petitioners' position is negated both by explicit constitutional[52] and legal[53] imprimaturs, as well
as the doctrine of qualified political agency.

The evident exigency of having the Secretary of Finance implement the decision of the
President to execute the debt-relief contracts is made manifest by the fact that the process of
establishing and executing a strategy for managing the government's debt is deep within the
realm of the expertise of the Department of Finance, primed as it is to raise the required amount
of funding, achieve its risk and cost objectives, and meet any other sovereign debt management
goals.[54]

If, as petitioners would have it, the President were to personally exercise every aspect of the
foreign borrowing power, he/she would have to pause from running the country long enough to
focus on a welter of time-consuming detailed activities-the propriety of incurring/guaranteeing
loans, studying and choosing among the many methods that may be taken toward this end,
meeting countless times with creditor representatives to negotiate, obtaining the concurrence of
the Monetary Board, explaining and defending the negotiated deal to the public, and more often
than not, flying to the agreed place of execution to sign the documents. This sort of
constitutional interpretation would negate the very existence of cabinet positions and the
respective expertise which the holders thereof are accorded and would unduly hamper the
President's effectivity in running the government.

Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v.
Secretary of the Interior[55] from American jurisprudence, viz:
With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the
President of the Philippines is the Executive of the Government of the Philippines, and no other.
The heads of the executive departments occupy political positions and hold office in an advisory
capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom
confidence" (7 Writings, Ford ed., 498), and, in the language of Attorney-General Cushing (7
Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing
the importance of the heads of the various departments, their personality is in reality but the
projection of that of the President. Stated otherwise, and as forcibly characterized by Chief
Justice Taft of the Supreme Court of the United States, "each head of a department is, and must
be, the President's alter ego in the matters of that department where the President is required by
law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at
133; 71 Law. ed., 160).[56]
As it was, the backdrop consisted of a major policy determination made by then President
Aquino that sovereign debts have to be respected and the concomitant reality that the
Philippines did not have enough funds to pay the debts. Inevitably, it fell upon the Secretary of
Finance, as the alter ego of the President regarding "the sound and efficient management of the
financial resources of the Government,"[57] to formulate a scheme for the implementation of the
policy publicly expressed by the President herself.

Nevertheless, there are powers vested in the President by the Constitution which may not be
delegated to or exercised by an agent or alter ego of the President. Justice Laurel, in his
ponencia in Villena, makes this clear:
Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it
should be observed that there are certain acts which, by their very nature, cannot be validated
by subsequent approval or ratification by the President. There are certain constitutional powers
and prerogatives of the Chief Executive of the Nation which must be exercised by him in person
and no amount of approval or ratification will validate the exercise of any of those powers by any
other person. Such, for instance, in his power to suspend the writ of habeas corpus and
proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the benign
prerogative of mercy (par. 6, sec. 11, idem).[58]
These distinctions hold true to this day. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over those exercised
by co-equal branches of government. The declaration of martial law, the suspension of the writ
of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that demands the exclusive
exercise by the President of the constitutionally vested power. The list is by no means exclusive,
but there must be a showing that the executive power in question is of similar gravitas and
exceptional import.

We cannot conclude that the power of the President to contract or guarantee foreign debts falls
within the same exceptional class. Indubitably, the decision to contract or guarantee foreign
debts is of vital public interest, but only akin to any contractual obligation undertaken by the
sovereign, which arises not from any extraordinary incident, but from the established functions
of governance.

Another important qualification must be made. The Secretary of Finance or any designated alter
ego of the President is bound to secure the latter's prior consent to or subsequent ratification of
his acts. In the matter of contracting or guaranteeing foreign loans, the repudiation by the
President of the very acts performed in this regard by the alter ego will definitely have binding
effect. Had petitioners herein succeeded in demonstrating that the President actually withheld
approval and/or repudiated the Financing Program, there could be a cause of action to nullify
the acts of respondents. Notably though, petitioners do not assert that respondents pursued the
Program without prior authorization of the President or that the terms of the contract were
agreed upon without the President's authorization. Congruent with the avowed preference of
then President Aquino to honor and restructure existing foreign debts, the lack of showing that
she countermanded the acts of respondents leads us to conclude that said acts carried
presidential approval.

With constitutional parameters already established, we may also note, as a source of suppletory
guidance, the provisions of R.A. No. 245. The afore-quoted Section 1 thereof empowers the
Secretary of Finance with the approval of the President and after consultation [59] of the Monetary
Board, "to borrow from time to time on the credit of the Republic of the Philippines such sum or
sums as in his judgment may be necessary, and to issue therefor evidences of indebtedness of
the Philippine Government." Ineluctably then, while the President wields the borrowing power it
is the Secretary of Finance who normally carries out its thrusts.

In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement
Manufacturers Corp.,[60] this Court had occasion to examine the authority granted by Congress
to the Department of Trade and Industry (DTI) Secretary to impose safeguard measures
pursuant to the Safeguard Measures Act. In doing so, the Court was impelled to construe
Section 28(2), Article VI of the Constitution, which allowed Congress, by law, to authorize the
President to "fix within specified limits, and subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the Government." [61]

While the Court refused to uphold the broad construction of the grant of power as preferred by
the DTI Secretary, it nonetheless tacitly acknowledged that Congress could designate the DTI
Secretary, in his capacity as alter ego of the President, to exercise the authority vested on the
chief executive under Section 28(2), Article VI.[62] At the same time, the Court emphasized that
since Section 28(2), Article VI authorized Congress to impose limitations and restrictions on the
authority of the President to impose tariffs and imposts, the DTI Secretary was necessarily
subjected to the same restrictions that Congress could impose on the President in the exercise
of this taxing power.

Similarly, in the instant case, the Constitution allocates to the President the exercise of the
foreign borrowing power "subject to such limitations as may be provided under law." Following
Southern Cross, but in line with the limitations as defined in Villena, the presidential prerogative
may be exercised by the President's alter ego, who in this case is the Secretary of Finance.

It bears emphasis that apart from the Constitution, there is also a relevant statute, R.A. No. 245,
that establishes the parameters by which the alter ego may act in behalf of the President with
respect to the borrowing power. This law expressly provides that the Secretary of Finance may
enter into foreign borrowing contracts. This law neither amends nor goes contrary to the
Constitution but merely implements the subject provision in a manner consistent with the
structure of the Executive Department and the alter ego doctine. In this regard, respondents
have declared that they have followed the restrictions provided under R.A. No. 245, [63] which
include the requisite presidential authorization and which, in the absence of proof and even
allegation to the contrary, should be regarded in a fashion congruent with the presumption of
regularity bestowed on acts done by public officials.

Moreover, in praying that the acts of the respondents, especially that of the Secretary of
Finance, be nullified as being in violation of a restrictive constitutional interpretation, petitioners
in effect would have this Court declare R.A. No. 245 unconstitutional. We will not strike down a
law or provisions thereof without so much as a direct attack thereon when simple and logical
statutory construction would suffice.

Petitioners also submit that the unrestricted character of the Financing Program violates the
framers' intent behind Section 20, Article VII to restrict the power of the President. This intent,
petitioners note, is embodied in the proviso in Sec. 20, Art. VII, which states that said power is
"subject to such limitations as may be provided under law." However, as previously discussed,
the debt-relief contracts are governed by the terms of R.A. No. 245, as amended by P.D. No.
142 s. 1973, and therefore were not developed in an unrestricted setting.

Third Issue: Grave Abuse of Discretion and

Violation of Constitutional Policies

We treat the remaining issues jointly, for in view of the foregoing determination, the general
allegation of grave abuse of discretion on the part of respondents would arise from the
purported violation of various state policies as expressed in the Constitution.

Petitioners allege that the Financing Program violates the constitutional state policies to promote
a social order that will "ensure the prosperity and independence of the nation" and free "the
people from poverty,[64] foster "social justice in all phases of national development,"[65] and
develop a self-reliant and independent national economy effectively controlled by Filipinos;" [66]
thus, the contracts executed or to be executed pursuant thereto were or would be tainted by a
grave abuse of discretion amounting to lack or excess of jurisdiction.

Respondents cite the following in support of the propriety of their acts: [67] (1) a Department of
Finance study showing that as a result of the implementation of voluntary debt reductions
schemes, the country's debt stock was reduced by U.S. $4.4 billion as of December 1991; [68] (2)
revelations made by independent individuals made in a hearing before the Senate Committee
on Economic Affairs indicating that the assailed agreements would bring about substantial
benefits to the country;[69] and (3) the Joint Legislative-Executive Foreign Debt Council's
endorsement of the approval of the financing package containing the debt-relief agreements and
issuance of a Motion to Urge the Philippine Debt Negotiating Panel to continue with the
negotiation on the aforesaid package.[70]

Even with these justifications, respondents aver that their acts are within the arena of political
questions which, based on the doctrine of separation of powers,[71] the judiciary must leave
without interference lest the courts substitute their judgment for that of the official concerned and
decide a matter which by its nature or law is for the latter alone to decide.[72]

On the other hand, in furtherance of their argument on respondents' violation of constitutional

policies, petitioners cite an article of Jude Esguerra, The 1992 Buyback and Securitization
Agreement with Philippine Commercial Bank Creditors,[73] in illustrating a best-case scenario in
entering the subject debt-relief agreements. The computation results in a yield of $218.99
million, rather than the $2,041.00 million claimed by the debt negotiators. [74] On the other hand,
the worst-case scenario allegedly is that a net amount of $1.638 million will flow out of the
country as a result of the debt package.[75]

Assuming the accuracy of the foregoing for the nonce, despite the watered-down parameters of
petitioners' computations, we can make no conclusion other than that respondents' efforts were
geared towards debt-relief with marked positive results and towards achieving the constitutional
policies which petitioners so hastily declare as having been violated by respondents. We
recognize that as with other schemes dependent on volatile market and economic structures,
the contracts entered into by respondents may possibly have a net outflow and therefore
negative result. However, even petitioners call this latter event the worst-case scenario. Plans
are seldom foolproof. To ask the Court to strike down debt-relief contracts, which, according to
independent third party evaluations using historically-suggested rates would result in
"substantial debt-relief,"[76] based merely on the possibility of petitioners' worst-case scenario
projection, hardly seems reasonable.

Moreover, the policies set by the Constitution as litanized by petitioners are not a panacea that
can annul every governmental act sought to be struck down. The gist of petitioners' arguments
on violation of constitutional policies and grave abuse of discretion boils down to their allegation
that the debt-relief agreements entered into by respondents do not deliver the kind of debt-relief
that petitioners would want. Petitioners cite the aforementioned article in stating that that "the
agreement achieves little that cannot be gained through less complicated means like postponing
(rescheduling) principal payments,"[77] thus:
[T]he price of success in putting together this "debt-relief package" (indicates) the possibility that
a simple rescheduling agreement may well turn out to be less expensive than this
comprehensive "debt-relief" package. This means that in the next six years the humble and
simple rescheduling process may well be the lesser evil because there is that distinct possibility
that less money will flow out of the country as a result.
Note must be taken that from these citations, petitioners submit that there is possibly a better
way to go about debt rescheduling and, on that basis, insist that the acts of respondents must
be struck down. These are rather tenuous grounds to condemn the subject agreements as
violative of constitutional principles.

Conclusion

The raison d' etre of the Financing Program is to manage debts incurred by the Philippines in a
manner that will lessen the burden on the Filipino taxpayers-thus the term "debt-relief
agreements." The measures objected to by petitioners were not aimed at incurring more debts
but at terminating pre-existing debts and were backed by the know-how of the country's
economic managers as affirmed by third party empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well with petitioners is
beyond the power of this Court to remedy. The exercise of the power of judicial review is merely
to check-not supplant-the Executive, or to simply ascertain whether he has gone beyond the
constitutional limits of his jurisdiction but not to exercise the power vested in him or to determine
the wisdom of his act.[78] In cases where the main purpose is to nullify governmental acts
whether as unconstitutional or done with grave abuse of discretion, there is a strong
presumption in favor of the validity of the assailed acts. The heavy onus is in on petitioners to
overcome the presumption of regularity.

We find that petitioners have not sufficiently established any basis for the Court to declare the
acts of respondents as unconstitutional.

WHEREFORE the petition is hereby DISMISSED. No costs.

SO ORDERED.

[chbreak]

TREATIES OR INTERNATIONAL AGREEMENTS VS. EXECUTIVE AGREEMENTS

SENATOR AQUILINO PIMENTEL, JR. VS. OFFICE OF THE EXECUTIVE SECRETARY (G.R.
No. 158088, July 06, 2005)

DECISION

PUNO J.:
This is a petition for mandamus filed by petitioners to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in
accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal jurisdictions."[1] Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined
in the Statute.[2] The Statute was opened for signature by all states in Rome on July 17, 1998
and had remained open for signature until December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through
Charge d' Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.[3] Its
provisions, however, require that it be subject to ratification, acceptance or approval of the
signatory states.[4]

Petitioners filed the instant petition to compel the respondents — the Office of the Executive
Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to
the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its
discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the
states to refrain from acts which would defeat the object and purpose of a treaty when they have
signed the treaty prior to ratification unless they have made their intention clear not to become
parties to the treaty.[5]

The Office of the Solicitor General, commenting for the respondents, questioned the standing of
the petitioners to file the instant suit. It also contended that the petition at bar violates the rule
on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that
the executive department has no duty to transmit the Rome Statute to the Senate for
concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.[6] We have held that to be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment
of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense
that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.[7] The Court will exercise its power of judicial review only if the case is brought
before it by a party who has the legal standing to raise the constitutional or legal
question. "Legal standing" means a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the government act that is being
challenged. The term "interest" is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.[8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the
Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting
the cause of human rights and human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine
Laws with the avowed purpose of promoting the cause of families and victims of human rights
violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and
one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of
inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of
fifth year working law students from the University of the Philippines College of Law who are
suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[10]

We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of human
rights, and as citizens of the country. They have not shown, however, that they have sustained
or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to
the Senate. Their contention that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our national laws to
protect our citizens against human rights violations and petitioners can always seek redress for
any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution."[11] Thus, legislators have the standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to
grant or withhold its concurrence to a treaty entered into by the executive branch, in this case,
the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the
treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the
institution, certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with foreign
nations.[12] As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate with
other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII
of the 1987 Constitution provides that "no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate." The 1935
and the 1973 Constitution also required the concurrence by the legislature to the treaties
entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations.[14] By requiring the
concurrence of the legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the nation's pursuit of political
maturity and growth.[15]

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration
and publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task
to his authorized representatives. These representatives are provided with credentials known
as full powers, which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty
which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues involved,
and may even "collapse" in case the parties are unable to come to an agreement on the points
under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate
the final consent of the state in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to their interests. It is
for this reason that most treaties are made subject to the scrutiny and consent of a
department of the government other than that which negotiated them.

xxx
The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been agreed
upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied
in the treaty, the instrument is deemed effective upon its signature.[16] [emphasis supplied]
Petitioners' arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a symbol of the good faith
of the parties. It is usually performed by the state's authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representative. It is generally held to be an executive
act, undertaken by the head of the state or of the government.[17] Thus, Executive Order No.
459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the
negotiation of international agreements and its ratification. It mandates that after the treaty has
been signed by the Philippine representative, the same shall be transmitted to the Department
of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers
and forward the signed copy of the treaty to the President for ratification. After the President
has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. — The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of

Foreign Affairs after their signing for the preparation of the
ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines
arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by

the concerned agency, shall transmit the agreements to the
President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of
Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the

requirements provided in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In addition, the Department
of Foreign Affairs shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification by the President. A
certified true copy of the treaties, in such numbers as may be
required by the Senate, together with a certified true copy of the
ratification instrument, shall accompany the submission of the
treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of

Foreign Affairs shall comply with the provision of the treaties in
effecting their entry into force.
Petitioners' submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the
states be subject to ratification, acceptance or approval of the signatory states. Ratification is
the act by which the provisions of a treaty are formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the
provisions of such treaty. After the treaty is signed by the state's representative, the President,
being accountable to the people, is burdened with the responsibility and the duty to carefully
study the contents of the treaty and ensure that they are not inimical to the interest of the state
and its people. Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law
of Treaties does not contemplate to defeat or even restrain this power of the head of states. If
that were so, the requirement of ratification of treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that
the refusal must be based on substantial grounds and not on superficial or whimsical
reasons. Otherwise, the other state would be justified in taking offense.[19]

It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification.[20] Hence, it is within
the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.[21] Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly, [22] such
decision is within the competence of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.[23] The Court, therefore, cannot issue the writ
of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

QUA CHEE GAN, ET AL. VS. THE DEPORTATION BOARD (G.R. No. L-10280, September
30, 1963)

DECISION

BARRERA, J.:

This is an appeal from the decision of the Court of First Instance of Manila (in Sp. Proc. No.
20037) denying the petition for writs of habeas corpus and/or prohibition, certiorari, and
mandamus filed by Qua Chee Gan, James Uy, Daniel Dy alias Dy Pac, Chan Tiong Yu, Chua
Chu Tian, Chua Lim Pao alias Jose Chua, and Basilio King. The facts of the case, briefly
stated, are as follows: On May 12, 1952, Special Prosecutor Emilio L. Galang charged the
above-named petitioners before the Deportation Board, with having purchased U.S.
dollars in the total sum of $130,000.00, without the necessary license from the Central Bank
of the Philippines, and of having clandestinely remitted the same to Hongkong; and petitioners
Qua Chee Gan, Chua Lim Pao alias Jose Chua, and Basilio King, with having attempted to
bribe officers of the Philippine and United States Governments (Antonio Laforteza, Chief
of the Intelligence Division of the Central Bank, and Capt. A. P. Charak of the OSI, U. S. Air
Force) in order to evade prosecution for said unauthorized purchase of U. S. dollars:[1]
Following the filing of said deportation charges, a warrant for the arrest of said aliens was
issued by the presiding member of the Deportation Board. Upon their filing surety bond for
P10,000.00 and cash bond for P10,000.00, herein petitioners-appellants were provisionally
set at liberty.

On September 22, 1952, petitioners-appellants filed a joint motion to dismiss the charges
presented against them in the Deportation Board for the reason, among others, that the same
do not constitute legal ground for deportation of aliens from this country, and that said Board
has no jurisdiction to entertain such charges. This motion to dismiss having been denied
by order of the Board on February 9, 1953, petitioners-appellants filed in this Court a petition
for habeas corpus and/or prohibition, which petition was given due course in our resolution of
July 7, 1953, but made returnable to the Court of First Instance of Manila (G. R. No. L-
6783). The case was docketed in the lower court as Special Proceeding No. 20037. At the
instance of petitioners and upon their filing a bond for P5,000.00 each, a writ of preliminary
injunction was issued by the lower court, restraining the respondent Deportation Board from
hearing Deportation Charges No. R-425 against petitioners, pending final termination of the
habeas corpus and/or prohibition proceedings.

On July 29, 1953, the respondent Board filed its answer to the original petition, maintaining
among others, that the Deportation Board, as an agent of the President, has jurisdiction over
the charges filed against petitioners and the authority to order their arrest; and that, while
petitioner Qua Chee Gan was acquitted of the offense of attempted bribery of a public
official, he was found in the same decision of the trial court that he did actually offer
money to an officer of the United States Air Force in order that the latter may abstain from
assisting the Central Bank official in the investigation of the purchase of $130,000.00 from the
Clark Air Force Base, wherein said petitioner was involved.

After due trial, the court rendered a decision on January i&, 1956, upholding the validity of the
delegation by the President to the Deportation Board of his power to conduct
investigations for the purpose of determining whether the stay of an alien in the
country would be injurious to the security, welfare and interest of the State. The court,
likewise, sustained the power of the Deportation Board to, issue warrants of arrest and fix
bonds for the alien's temporary release pending investigation of charges against him, on the
theory that the power to arrest and fix the amount of the bond of the arrested alien is
essential to and complement the power to deport aliens, pursuant to Section 69 of the Revised
Administrative Code. Consequently, the petition was dismissed without costs. Hence,
the petitioners instituted the present appeal.

It may be pointed out at the outset that after they were provisionally released on bail, but before
the charges filed against them were actually investigated, petitioners- appellants raised the
question of jurisdiction of the Deportation Board, first before said body, then in the Court of
First Instance of Manila, and now before us. Petitioners appellants contest the power of the
President to deport aliens and, consequently, the delegation to the Deportation Board, of the
ancillary power to investigate, on the ground that such power is vested in the Legislature. In
other words, it is claimed, for the power to deport to be exercised, there must be a
legislation authorizing the same.

Under Commonwealth Act No. 613 (Immigration Act of 1940), the Commissioner
of Immigration was empowered to effect the arrest and expulsion of an alien, after previous
determination by the Board of Commissioners of the existence of ground or grounds
therefor (Sec. 37). With the enactment of this law, however, the legislature did not intend to
delimit or concentrate the exercise of the power to deport on the Immigration Commissioner
alone, because in its Section 52, it provides:

"Sec. 52. This Act is in substitution for and supersedes all previous laws relating to the entry
of aliens into the Philippines, and their exclusion, deportation, and repatriation therefrom,
with the exception of section sixty-nine of Act Numbered Twenty-seven hundred and eleven
which shall continue in force and effect: * * *." (Com. Act No. 613).

Section 69 of Act No. 2711 (Revised Administrative Code) referred to above reads:

"Sec. 69. Deportation of subject to foreign power.—A subject of a foreign power residing in
the Philippines shall not be deported, expelled, or excluded from said Islands or repatriated to
his own country by the President of the Philippines except upon prior investigation, conducted
by said Executive or his authorized agent, of the ground upon which such action is
contemplated. In such case the person concerned shall be informed of the charge or charges
against him and he shall be allowed not less than three days for the preparation of his
defense. He shall also have the right to be heard by himself or counsel, to produce witnesses
in his own behalf, and to cross-examine the opposing witnesses."

While it may really be contended that the aforequoted provision did not expressly
confer on the President the authority to deport undesirable aliens, unlike the express grant to
the Commissioner of Immigration under Commonwealth Act No. 613, but merely lays down the
procedure to be observed should there be deportation proceedings, the fact that such a
procedure was provided for before the President can deport an alien—which provision was
expressly declared exempted from the repealing effect of the Immigration Act of 1940—is a
clear indication of the recognition, and inferentially a ratification, by the legislature of the
existence of such power in the Executive. And the exercise of this power by the Chief
Executive has been sanctioned by this Court in several decisions.[2]

Under the present and existing laws, therefore, deportation of an undesirable alien may be
effected in two ways: by order of the President, after due investigation, pursuant
to Section 69 of the Revised Administrative Code, and by the Commissioner of
Immigration, upon recommendation by the Board of Commissioners, under Section 37 of
Commonwealth Act No. 613.

Petitioners contend, however, that even granting that the President is vested with power to
deport, still he may do so only upon the grounds enumerated in Commonwealth Act No. 613,
as amended, and on no other, as it would be unreasonable and undemocratic to hold "that an
alien may be deported upon an unstated or undefined ground depending merely on the
unlimited discretion of the Chief Executive. This contention is not without merit, considering
that whenever the legislature believes a certain act or conduct to be just cause for
deportation, it invariably enacted a law to that effect. Thus, in a number of amendatory acts,
grounds have been added to those originally contained in Section 37 of Commonwealth Act No.
613, as justifying deportation of an alien, as well as other laws which provide deportation as
part of the penalty imposed on aliens committing violation thereof.

Be this as it may, the charges against the herein petitioners constitute in effect an act
of profiteering, hoarding or blackmarketting of U.S. dollars, in violation of the Central Bank
regulations—an economic sabotage— which is a ground for deportation under the provisions of
Republic Act 503 amending Section 37 of the Philippine Immigration Act of
1940. The President may therefore order the deportation of these petitioners if after
investigation they are shown to have committed the act charged.

There seems to be no doubt that the President's power of investigation may be

delegated. This is clear from a reading of Section 69 of the Revised Administrative Code
which provides for a "prior investigation, conducted by said Executive (the President) or his
authorized agent." The first executive order on the subject was that of Governor General
Frank Murphy (No. 494, July 26, 1934), constituting a board to take action on complaints
against foreigners, to conduct investigations and thereafter make recommendations. By virtue
of Executive Order No. 33 dated May 29, 1936, President Quezon created the Deportation
Board primarily to receive complaints against aliens charged to be undesirable, to conduct
investigation pursuant to Section 69 of the Revised Administrative Code and the rules and
regulations therein provided, and make the corresponding recommendation.[3] Since then,
the Deportation Board has been conducting the investigation as the authorized agent of the
President.

This gives rise to the question regarding the extent of the power of the President to
conduct investigation, i.e., whether such authority carries with it the power to order the arrest
of the alien complained of, since the Administrative Code is silent on the matter, and if it
does, whether the same may be delegated to the respondent Deportation Board.

Let it be noted that Section 69 of the Revised Administrative Code, unlike Commonwealth Act
No. 613 wherein the Commissioner of Immigration was specifically granted authority, among
others, to make arrests, fails to provide the President with like specific power to be exercised in
connection with such investigation. It must be for this reason that President Roxas,
for the first time, saw it necessary to issue his Executive Order No. 69, dated July 29, 1947,
providing—

"For the purpose of insuring the appearance of aliens charged before

the Deportation Board created under Executive Order No. 37, dated January 4, 1947, and
facilitating the execution of the order of deportation whenever the President decides the case
against the respondent, I, Manuel Roxas, President of the Philippines, by virtue of the powers
vested in me by law, do hereby order that all respondents in deportation proceedings shall file
a bond with the Commissioner of Immigration in such amount and containing such conditions
as he may prescribe.

Note that the executive order only required the filing of a bond to secure appearance of the alien
under investigation. It did not authorize the arrest of the respondent.

It was only on January 5, 1951, when President Quirino reorganized the Deportation Board by
virtue of his Executive Order No. 398, that the Board was authorized motu proprio or upon
the filing of formal charges by the Special Prosecutor of the Board, to issue the warrant for the
arrest of the alien complained of aim to hold him under detention during the investigation
unless he files a bond for his provisional release in such amount and under such conditions as
may be prescribed by the Chairman of the Board.

As has been pointed out elsewhere, Section 69 of the Revised Administrative Code,
upon whose authority the President's power to deport is predicated, does not provide for the
exercise of the power to arrest. But the Solicitor General argues that the law could not have
denied to the Chief Executive acts which are absolutely necessary to carry into effect the
power of deportation granted him such as the authority to order the arrest of the foreigner
charged as undesirable.

In this connection, it must be remembered that the right of an individual to foe' secure in
his person is guaranteed by the Constitution in the following language:

"3. The right of the people to "be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized." (Sec. 1, Art. Ill, Bill
of Rights, Philippine Constitution).

As observed by the late Justice Laurel in his concurring; opinion in the case of Rodriguez, et
al. vs. Villamiel, et al. (65 Phil. 230, 239), this provision is not the same as that
contained in the Jones Law wherein this guarantee is placed among the rights of the
accused. Under our Constitution, the same is declared a popular right of'.Hie people
and, of course, indisputably it equally applies to both citizens
and foreigners in this country. Furthermore, a notable innovation in this guarantee is
found in our Constitution in that it specifically provides that the probable cause upon which a
warrant of arrest may be issued, must be determined by the judge after examination under
oath, etc., of the complainant and the witnesses he may produce. This requirement—"to be
determined by the judge"—is not found in the Fourth Amendment of the U. S. Constitution, in
the Philippine Bill or in the Jones Act, all of which do not specify who will determine the
existence of a probable cause. Hence, under their provisions, any public officer may be
authorized by the Legislature to make such determination, and thereafter issue the warrant of
arrest. Under the express terms of our Constitution, it is, therefore, even doubtful whether the
arrest of an individual may be ordered by any authority other than the judge if the purpose is
merely to determine the existence of a probable cause, leading to an
administrative investigation. The Constitution does not distinguish between warrants in a
criminal case and administrative warrants in administrative proceedings. And, if one suspected
of having committed a crime is entitled to a determination of the probable cause against
him, by a judge, why should one suspected of a violation of an administrative nature deserve
less guarantee? Of course it is different if the order of arrest is issued to carry out
a final finding of a violation, either by an executive or legislative officer or agency duly
authorized for the purpose, as then the warrant is not that mentioned in the Constitution which
is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry
out a final order of deportation, or to effect compliance of an order of contempt.

The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into
effect the power of deportation is valid only when, as already stated, there is already an order of
deportation. To carry out the order of deportation, the President obviously has the power to
order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable
that the alien be arrested. It is enough, as was true before the executive order of
President Quirino, that a -bond be required to insure the appearance of the alien during the
investigation, as was authorized in the executive order of President Roxas. Be that as it may, it
is not imperative for us to rule, in this proceeding,—and nothing herein said is intended to so
decide—on whether or not the President himself can order the arrest of a foreigner for
purposes of investigation only, and before a definitive order of deportation has been
issued. We are merely called upon to resolve herein whether, conceding without deciding that
the President can personally order the arrest of the alien complained of, such power can be
delegated by him to the Deportation Board.

Unquestionably, the exercise of the power to order the arrest of an individual demands the
exercise of discretion by the one issuing the same, to determine whether under specific
circumstances, the curtailment of the liberty of such person is warranted. The fact that the
Constitution itself, as well as the statute relied upon, prescribe the manner by which the
warrant may be issued, conveys the intent to make the issuance of such warrant dependent
upon conditions the determination of the existence of which requires the use of discretion by
the person issuing the same. In other words, the discretion of whether a warrant of
arrest shall issue or not is personal to the one upon whom the authority
devolves. And authorities are to the effect that while ministerial duties may be delegated,
official functions requiring the exercise of discretion and judgment, may not be so
delegated. Indeed, an implied grant of power, considering that no express authority was
granted by the law on the matter under discussion, that would serve as a curtailment or
limitation on the fundamental right of a person, such as his security to life and liberty, must be
viewed with caution, if we are td give meaning toL the guarantee contained in the
Constitution. If this is so, then a delegation of that implied power, nebulous as it is, must be
rejected as inimical to the liberties of the people. The guarantees of human rights and
freedom can not be made to rest precariously on such a shaky foundation.
We are not unaware of the statements made by this Court in the case of Tan Sin vs.
Deportation Board (104 Phil., 868). It may be stated, however, that the power of arrest
was not squarely raised in that proceeding, but only as a consequence of therein
petitioners proposition that the President had no inherent power to deport and
that the charges filed against him did not constitute ground for deportation.

In view of the foregoing, Executive Order No. 398, series of 1951, insofar as it
empowers the Deportation Board to issue warrant of arrest upon the filing of formal charges
against an alien or aliens and to fix bond and prescribe the conditions for the temporary
release of said aliens, is declared illegal. As a consequence, the order of arrest issued
by the respondent Deportation Board is declared null and void and the bonds filed pursuant to
such order of arrest, decreed cancelled. With the foregoing modification, the
decision appealed from is hereby affirmed. No costs. So ordered.

GO TEK VS. DEPORTATION BOARD (G.R. No. L-23846, September 09, 1977)

DECISION

AQUINO, J.:

This is a deportation case. On March 3, 1964 the chief prosecutor of the Deportation Board filed
a complaint against. Go Tek, a Chinaman residing at Ilagan, Isabela and 1208-B, Misericordia
Street, Sta. Cruz, Manila.

It was alleged in the complaint that in December, 1963 certain agents of the National Bureau of
Investigation (NBI) searched an office located at 1439 O'Donnel Street, Sta. Cruz, Manila,
believed to be the headquarters of a guerilla unit of the '"Emergency Intelligence Section, Army
of the United States," and that among those arrested thereat was Go Tek, an alleged sector
commander and intelligence and record officer of that guerilla unit.

It was further alleged that fake dollar checks were found in Go Tek's possession and that,
therefore, he had violated article 168 of the Revised Penal Code and rendered himself an
undesirable alien.

The prosecutor prayed that after trial the Board should recommend to the President of the
Philippines the immediate deportation of Go Tek as an undesirable alien, "his presence in this
country having been and will always be inimical and a menace to the peace, welfare, and
security of the community." (Case No. R-1116).

Go Tek filed a motion to dismiss on the ground that the complaint was premature because there
was a pending case against him in the city fiscal's office of Manila for violation of article 168 (I.S.
64-7267). He contended that the Board had no jurisdiction to try the case in view of the obiter
dictum in Qua Chee Gan vs. Deportation Board, 1 18 Phil. 868, 875, that the President may
deport aliens only on the grounds specified in the law.

The Board, composed of Manuel A. Concordia, Arturo A. Alafrizand Manuel V. Reyes, in its
resolution of April 21, 1964 denied Go Tek's motion. The Board reasoned out that a criminal
conviction is not a prerequisite before the State may exercise its right to deport an undesirable
alien and that the Board is only a fact-finding body whose function is to make a report and
recommendation to the President in whom is lodged the exclusive power to deport an alien or
dismiss a deportation proceeding.
In view of the denial of his motion to quash, Go Tek on June 10,1964 filed in the Court of First
Instance of Manila a prohibition action against the Board. On July 8, 1964 the court issued a writ
of preliminary injunction restraining the board from hearing Go Tek's case.

After hearing, the trial court (Judge Federico C. Alikpala presiding) in its decision of October 31,
1964 granted the writ of prohibition and ordered the Board to desist from taking cognizance of
the complaint against Go Tek.

The court, citing the said obiter dictum in the Qua Chee Gan case, held that mere possession of
forged dollar checks is not a ground for deportation under the Immigration Law; that under
section 37(3) of the law before an alien may be deported for having been convicted and
sentenced to imprisonment for a term of one year or more for a crime involving moral turpitude,
a conviction is necessary, and that since Go Tek had not been convicted of the offense
punished in article 168, the deportation proceeding was premature.

The Board appealed to this Court on the ground that the decision is contrary to law. The
Solicitor General contends that the trial court erred in assuming that the President may deport
undesirable aliens only on the grounds enumerated by law; in holding that mere possession of
forged dollar checks is not a ground for deportation and that a criminal conviction is necessary,
and in not finding that the Board has jurisdiction over Go Tek's case.

The Solicitor General in his motion of July 18, 1977 manifested that Judge Alikpala (to whom the
criminal case was also assigned after the fiscal had filed it in court), in his order of June 16,
1965 dismissed provisionally the case against Go Tek for violation of article 168 (Criminal Case
No. 78174).

The parties stipulated that the "Deportation Board is an agency of the President of the
Philippines charged with the investigation of undesirable aliens and to report and recommend
proper action on the basis of its findings therein."

The issue is whether the Deportation Board can entertain a deportation proceeding based on a
ground which is not specified in section 37 of the Immigration Law and although the alien has
not yet been convicted of the offense imputed to him.

We hold that the Board has jurisdiction to investigate Go Tek for illegal possession of fake dollar
checks (as well as his alleged "guerilla" activities) in spite of the fact that he has not yet been
convicted of illegal possession thereof under article 168 of the Revised Penal Code and
notwithstanding that act is not among the grounds for the deportation of undesirable aliens as
enumerated in section 37 of the Immigration Law. The charge against Go Tek before the Board
was not premature.

The aforementioned obiter dictum in the Qua Chee Gan case, invoked by Go Tek and relied
upon by the trial court, is not decisive of this case. In the Qua Chee Gan case the aliens were
charged with economic sabotage which is a ground for deportation under Republic Act No. 503.

The ratio decidendi of the Qua Chee Gan case is that the provision of Executive Order No. 398,
series of 1951, empowering the Deportation Board to issue a warrant of arrest upon the filing of
formal charges against an alien, is "illegal" or unconstitutional because it is contrary to the
provision in section 1(3), Article III of the 1935 Constitution that warrants shall issue upon
probable cause to be determined by the judge after examining under oath the complainant and
the witnesses he may produce. (Note that "under section 3, Article IV of the 1973 Constitution,
probable cause may be determined "by the judge, or such other responsible officer as may be
authorized by law.1' See Santos vs. Commissioner of Immigration, L-25694, November 29,
1976. 74 SCRA 96, per Fernando, J.).
A thorough comprehension of the President's power to deport aliens may show the
baselessness of the instant prohibition action of Go Tek. The President's power to deport aliens
and the investigation of aliens subject to deportation are provided for in the following provisions
of the Revised Administrative Code:
SEC. 69. Deportation of subject of foreign power. — A subject of a foreign power residing in the
Philippine Islands shall not be deported, expelled, or excluded from said Islands or repatriated to
his own country by the Governor-General except upon prior investigation, conducted by said
Executive or his authorized agent, of the ground upon which such action is contemplated. In
such case the person concerned shall be informed of the charge or charges against him and he
shall be allowed not less than three days for the preparation of his defense. He shall also have
the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to
cross-examine the opposing witnesses."
On the other hand, section 37 of the Immigration Law provides that certain aliens may be
arrested upon the warrant of the Commissioner of Immigration or of any other officer designated
by him for the purpose and deported upon the Commissioner's warrant "after a determination by
the Board of Commissioners of the existence of the ground for deportation as charged against
the alien." Thirteen classes of aliens who may be deported by the Commissioner are specified in
section 37 (See PO Siok Pin vs. Vivo, L-24792, February 14, 1975, 62 SCRA 363, 368),

So, under existing law, the deportation of an undesirable alien may be effected (1) by order of
the President, after due investigation, pursuant to section 69 of the Revised Administrative Code
and (2) by the Commissioner of Immigration, upon recommendation of the Board of
Commissioners under section 37 of the Immigration Law (Qua Chee Gan vs. Deportation Board,
supra).

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228
U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief
Executive "when he deems such action necessary for the peace and domestic tranquility of the
nation.1' Justice Johnson's opinion is that when the Chief Executive finds that there are aliens
whose continued presence in the country is injurious to the public interest, "he may, even in the
absence of express law, deport them." (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534,
568, 569; In re McCulloch Dick, 38 Phil. 41).
"The right of a country to expel or deport aliens because their continued presence is detrimental
to public welfare is absolute and unqualified" (Tiu Chun Hai and Go Tarn vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956).
The Deportation Board is composed of the Undersecretary of Justice as chairman, the Solicitor
General, and a representative of the Secretary of National Defense (Executive Order No. 455
dated June 25, 1951. 47 O.G. 2800).

Section 69 and Executive Order No. 398, reorganizing the Deportation Board, do not specify the
grounds for deportation. Paragraph l(a) of Executive Order No. 398 merely provides that "the
Deportation Board, motu proprio or upon complaint of any person, is authorized to conduct
investigations in the manner prescribed in section 69 of the Revised Administrative Code to
determine whether a subject of a foreign power residing in the Philippines is an undesirable
alien or not, and thereafter to recommend to the President of the Philippines the deportation of
such alien."

As observed by Justice Labrador, there is no legal nor constitutional provision defining the
power to deport aliens because the intention of the law is to grant the Chief Executive "full
discretion to determine whether an alien's residence in the country is so undesirable as to affect
or injure the security, welfare or interest of the state. The adjudication of facts upon which
deportation is predicated also devolves on the Chief Executive whose decision is final and
executory." (Tan Tong vs. Deportation Board, 96 Phil. 934n 936: Tan Sin vs. Deportation
Board, 104 Phil. 868, 872).

It has been held that the Chief Executive is the sole and exclusive judge of the existence of facts
which warrant the deportation of aliens, as disclosed in an investigation conducted in
accordance with section 69. No other tribunal is at liberty to reexamine or to controvert the
sufficiency of the evidence on which he acted. (Martin vs. Mott, 12 Wheat., 19. 31, cited in Re
McCulloch Dick, 38 Phil. 41, 62).

In the Dick case it was noted "that every alien forfeits his right of asylum in the country in which
he resides, in the absence of treaty provisions to the contrary, when his conduct or his mode of
life renders his presence there inimical to the public interests." "The reasons may be summed
up and condensed in a single word: the public interest of the State." (38 Phil. 41, 47, 100).

"It is fundamental that an executive order for deportation is not dependent on a prior judicial
conviction in a criminal case" (Ang Beng vs. Commissioner of Immigration, 100 Phil. 801, 803).
Thus, it was held that the fact that an alien has been acquitted in a criminal proceeding of the
particular charge does not prevent the deportation of such alien based on the same charge.
Such acquittal does not constitute res judicata in the deportation proceedings. Conviction of a
crime is not necessary to warrant deportation. (3 C.J.S. 743, note 40, citing Lewis vs. Frick, 233
U.S. 291, 58 L. Ed. 967 and U.S. ex. rel. Mastoras And in the Tan Tong case, supra, it was
ruled that the Deportation Board could take cognizance of the charge of illegal importation
against an alien, as a ground for deportation, even if he has not been convicted of that offense.

It should be borne in mind that the decision of the Deportation Board is merely recommendatory.
The Chief Executive has to approve the board's recommendation. Abuses or harassments
committed by the prosecutor or by the Board should first be brought to his attention.

WHEREFORE, the lower court's decision is reversed and set aside. The writ of preliminary
injunction is dissolved. The case is remanded to the Deportation Board for further proceedings.
Costs against the petitioner-appellee.

SO ORDERED.

COMMISSIONER ANDREA D. DOMINGO VS. HERBERT MARKUS EMIL SCHEER (G.R. No.
154745, January 29, 2004)

DECISION

CALLEJO, SR., J.:

This is a petition for review under Rule 45 of the Rules of Court, as amended, of the Decision [1]
of the Court of Appeals in CA-G.R. SP No. 71094 granting the respondent’s petition for certiorari
and prohibition annulling the order of arrest issued by the petitioner, and permanently enjoining
her from deporting the respondent from the Philippines. Through its decision, the CA virtually
reversed the Summary Deportation Order[2] of the Board of Commissioners (BOC) and its
Omnibus Resolution[3] denying the respondent’s Urgent Motion for Reconsideration of said
Order, and enjoining the petitioner from deporting the respondent.

The facts as culled from the records are as follows:

Respondent Herbert Markus Emil Scheer, a native of Ochsenfurt, Germany, was a frequent
visitor of the Philippines. On July 18, 1986, his application for permanent resident status was
granted.[4] The Bureau of Immigration and Deportation (BID) issued in favor of the respondent
Alien Certificate of Registration No. B-396907 dated September 16, 1987[5] and Immigration
Certificate of Residence No. 256789 dated February 24, 1988.[6] The Commissioner stated that
the granting of the petition would redound to the benefit of the Filipino people.[7] During his
sojourn in the Philippines, the respondent married widowed Edith delos Reyes [8] with whom he
had two daughters. They had a son, Herbert Scheer, Jr., but he passed away on November 13,
1995.[9] They resided in Puerto Princesa City, Palawan, where the respondent established and
managed the Bavaria Restaurant. On May 21, 1991, he was appointed Confidential Agent by
then NBI Director Alfredo S. Lim.[10]

In a Letter dated June 29, 1995, Vice Consul Jutta Hippelein informed the Philippine
Ambassador to Bonn, Germany, that the respondent had police records and financial liabilities
in Germany.[11]

The Department of Foreign Affairs received from the German Embassy in Manila Note Verbale
No. 369/95 dated July 26, 1995, informing it that the respondent was wanted by the German
Federal Police; that a warrant of arrest had been issued against him; and that the respondent
will be served with an official document requesting him to turn over his German passport to the
Embassy which was invalidated on July 2, 1995.[12] The Embassy requested the Department of
Foreign Affairs to inform the competent Philippine authorities of the matter. The BOC thereafter
issued a Summary Deportation Order dated September 27, 1997. The penultimate paragraph of
the Order reads:
WHEREFORE, the foregoing considered, the Board of Commissioners hereby orders the
following:

1. Cancellation of respondent’s permanent residence visa;

2. Respondent’s summary deportation and permanent exclusion from the
Philippines; and
3. Inclusion of his name on the Bureau’s Blacklist.

PROVIDED, however that said summary deportation should be held in abeyance in case said
alien has a pending final and executory criminal conviction where the imposed penalty is
imprisonment, in which case, he has to serve first such imposed penalty, and/or has a pending
criminal, civil or administrative action and a Hold Departure Order has been issued or that his
presence in said action is indispensable. In such instances, the alien should remain in the
custody of the Bureau until his turnover to the proper authorities in case he has to serve
imprisonment or in case of pendency of civil or criminal administrative action, he shall remain in
the custody of the Bureau until such time that his pending cases shall have been decided,
terminated or settled, as the case may be, unless circumstances demand the immediate
implementation of this summary deportation.
...

SO ORDERED.[13]
In issuing the said order, the BOC relied on the correspondence from the German Vice Consul
on its speculation that it was unlikely that the German Embassy will issue a new passport to the
respondent; on the warrant of arrest issued by the District Court of Germany against the
respondent for insurance fraud; and on the alleged illegal activities of the respondent in
Palawan.[14] The BOC concluded that the respondent was not only an undocumented but an
undesirable alien as well.

When the respondent was apprised of the deportation order, he forthwith aired his side to then
BID Commissioner Leandro T. Verceles. The Commissioner allowed the respondent to remain
in the Philippines, giving the latter time to secure a clearance and a new passport from the
German Embassy.[15] Then Presidential Assistant Teodorico K. Imperial wrote a Testimonial
dated November 24, 1995, in behalf of the respondent addressed to Commissioner Verceles.
Nonetheless, the respondent, through counsel, filed on December 5, 1995 an Urgent Motion for
Reconsideration of the Summary Deportation Order of the BOC.[16] In his motion, the
respondent alleged, inter alia, that:
 1. The elementary rules of due process require notice and opportunity to be
heard before a person can be lawfully deprived of his right (Ute Paterok vs.
Bureau of Customs, 193 SCRA 132). In the instant case, although it is
acknowledged that the Honorable Office may conduct summary deportation
proceedings, respondent was not given notice and opportunity to be heard
before said Summary Deportation Order was issued. Respondent’s right to
procedural due process was therefore violated. Consequently, the
Summary Deportation Order is invalid.

2. In issuing, the Summary Deportation Order, this Honorable Office relied on

Note Verbal No. 369/95 issued by the Embassy of the Federal Republic of
Germany, Manila, notifying the Department of Foreign Affairs and this
Honorable Office about the warrant of arrest against respondent for alleged
illegal insurance fraud and illegal activities. However, a close scrutiny of
said note verbal shows that nowhere therein does it state that respondent
was involved in insurance fraud or in any kind of illegal activities in
Germany or anywhere else in the world, such as in Palawan. Therefore, the
main basis of the Summary Deportation Order is incompetent as evidence
against respondent who is, like every Filipino, presumed to be innocent
until his guilt is proven beyond reasonable doubt.

3. The power to deport alien is a police power measure necessary against

undesirable alien whose presence in the country is injurious to the public
good and domestic tranquility of the country (Board of Commissioner
Commission on Immigration vs. De la Rosa, 197 SCRA 853). It is
respectfully submitted that respondent is not an undesirable alien. He has
stayed in the Philippines for more or less than (10) years. He has married a
Filipina and has three (3) minor children. He has established his business
in Palawan and he has no police record whatsoever. Respondent has
considered the Philippines his second home and he has nowhere else to go
back to in Germany. Under the circumstances and for humanitarian
considerations, respondent is not an undesirable alien whose deportation is
warranted. Likewise, the mere fact that his passport was not renewed by
the German Embassy does not also automatically justify the deportation of
respondent.[17]

However, the BOC did not resolve the respondent’s motion. The respondent was neither
arrested nor deported.

Meanwhile, on February 15, 1996, the District Court of Straubing rendered a Decision
dismissing the criminal case against the respondent for physical injuries. [18] The German
Embassy in Manila, thereafter, issued a temporary passport to the respondent.

In a Letter dated March 1, 1996, the respondent informed Commissioner Verceles that his
passport had been renewed following the dismissal of the said criminal case. He reiterated his
request for the cancellation of the Summary Deportation Order dated September 27, 1995 and
the restoration of his permanent resident status.[19] Subsequently, on March 12, 1996, the
German Embassy issued to the respondent a regular passport, to expire on March 11, 2006.

The BOC still failed to resolve the respondent’s Urgent Motion for Reconsideration.
Commissioner Verceles did not respond to the respondent’s March 1, 1996 Letter. The
respondent remained in the Philippines and maintained his business in Palawan. On March 20,
1997, the Department of Labor and Employment approved his application for Alien Employment
Registration Certificate as manager of the Bavaria Restaurant in Puerto Princesa City.
In the meantime, petitioner Immigration Commissioner Andrea T. Domingo assumed office. She
wrote the German Embassy and inquired if the respondent was wanted by the German police.
On April 12, 2002, the German Embassy replied that the respondent was not so wanted. [20] At
about midnight on June 6, 2002, Marine operatives and BID agents apprehended the
respondent in his residence on orders of the petitioner. He was whisked to the BID Manila Office
and there held in custody while awaiting his deportation. Despite entreaties from the
respondent’s wife[21] and his employees, the petitioner refused to release the respondent.[22]

Shocked at the sudden turn of events, the respondent promptly communicated with his lawyer.
The latter filed with the BID a motion for bail to secure the respondent’s temporary liberty. On
June 11, 2002, the respondent’s counsel filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with a prayer for temporary restraining order and writ of preliminary
injunction, to enjoin the petitioner from proceeding with the respondent’s deportation. [23] The
respondent (petitioner therein) alleged, inter alia, that his arrest and detention were premature,
unjust, wrongful, illegal and unconstitutional, effected without sufficient cause and without
jurisdiction or with grave abuse of discretion. He asserted that there was no speedy remedy
open to him in the ordinary course of law[24] and that his Urgent Motion for Reconsideration of
the Summary Deportation Order of the BOC had not yet been resolved despite the lapse of
more than six years. The respondent averred that he was a fully documented alien, a permanent
resident and a law-abiding citizen. He, thus, prayed as follows:
PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Court that:

1. Upon the filing of this Petition, this Honorable Court issue a Temporary
Restraining Order to enjoin respondent Commissioner from enforcing any
order to deport petitioner;

2. After due hearing, a writ of preliminary and mandatory injunction be

correspondingly issued to maintain the status quo pending resolution of the
Petition on the merits.

3. After hearing, judgment be rendered:

a) Directing and mandating respondent Commissioner and the body she

heads to resolve the Motion for Reconsideration filed in 1995, in his favor,
and nullifying or suspending the implementation of any order, oral or
written, she may have issued or issue to deport petitioner; and

b) Making the injunction in petitioner’s favor permanent.

Petitioner likewise prays for such other and further relief as may be deemed just and equitable
in the premises, such as directing respondent, if Herbert Scheer is deported before the matter is
heard on notice, to authorize his return.[25]
The BOC ruled that its September 27, 1995 Order had become final and executory after the
lapse of one year, citing our rulings in Sy vs. Vivo,[26] and Lou vs. Vivo.[27] The BOC also held
that it was not competent to reverse the September 27, 1995 Order, citing our ruling in
Immigration Commissioner vs. Fernandez.[28] It declared that the respondent may seek the
waiver of his exclusion via deportation proceedings through the exceptions provided by
Commonwealth Act No. 613,[29] Section 29 (a)(15), but that his application for the waiver
presupposes his prior removal from the Philippines.

In a parallel development, the respondent procured a letter from the National Bureau of
Investigation (NBI) in Puerto Princesa City certifying that he had no pending criminal record.[30]
The Puerto Princesa City Philippine National Police (PNP) also issued a certification that the
respondent had no pending criminal or derogatory records in the said office. [31]

Meanwhile, on June 26, 2002, the Court of Appeals issued a status quo order restraining the
petitioner from deporting the respondent on a bond of P100,000.00. [32] On July 18, 2002, the
BOC issued an Omnibus Resolution dated June 14, 2002, pendente lite denying the
respondent’s Urgent Motion for Reconsideration, Motion for Bail/Recognizance, and the Letter
dated June 11, 2002. The decretal portion of the resolution reads:
Wherefore, in view of the foregoing circumstances, we deny the prayers of the Urgent Motion for
Reconsideration of 5 December 1995, the Motion for Bail/Recognizance dated 7 June 2002 and
the Letter of 11 June 2002. Further, we hereby order the following:

1. Subject to the submission of appropriate clearances, the summary

deportation order the respondent Herbert Scheer, German, under BI Office
Memorandum Order No. 34 (series of 1989) and the BOC Summary
Deportation Order of 27 September 1995;

2. Permanent exclusion of Herbert Scheer from the Philippines under C.A. No.
613, Section 40 (a)(15).

3. Inclusion of the name of Herbert Scheer in the Immigration Black List; and

4. Forfeiture of the bail bond, if any, of Herbert Scheer under C.A. No. 613,
Section 40 (a)(15).

...

IT IS SO ORDERED.[33]
During the hearing of the respondent’s plea for a writ of preliminary mandatory injunction before
the CA on July 22, 2002, the Office of the Solicitor General (OSG) manifested that the State had
no opposition to the respondent’s re-entry and stay in the Philippines, provided that he leave the
country first and re-apply for admission and residency status with the assurance that he would
be re-admitted.[34] The respondent’s counsel manifested to the appellate court that he had just
been informed by the OSG of the Omnibus Resolution of the BOC dated June 14, 2002.

In her Comment on the Petition, the petitioner (the respondent therein) alleged, inter alia, the
following:
1) that the BOC was an indispensable party to the petition;

2) the petitioner’s failure to implead the BOC warranted the denial of the petition;

3) the allowance by then Immigration Commissioner Leandro Verceles for the petitioner
therein to renew his passport and secure clearances, even if proved, was not binding on
the BOC;

4) the September 27, 1995 Order of the BOC was already executory when the respondent
filed her petition in the CA;

5) the German Embassy’s issuance of a new passport did not legalize the respondent’s stay
in this country, which became illegal on July 2, 1995 when his passport expired;

6) the respondent therein did not act with abuse of discretion in causing the arrest and
detention of the respondent based on the BOC’s Summary Deportation Order; and
7) the BOC did not act with grave abuse of discretion in issuing its Summary Deportation
Order and Omnibus Resolution and such order and resolution were not mooted by the
German Embassy’s issuance of a new passport in favor of the respondent.
In view of the Omnibus Resolution of the BOC, the respondent (petitioner therein) in his
Memorandum prayed for the nullification of the BOC’s Order, as well as its Omnibus Resolution
denying his Urgent Motion for Reconsideration considering that with the issuance of a new
passport, there was no more basis for his deportation, thus:
RELIEF

WHEREFORE, it is most respectfully prayed of this Honorable Court that:

1. Upon the filing of this Memorandum, this Honorable Court forthwith direct
and authorize the immediate release of petitioner, even on undersigned’s
recognizance, until further orders from this Honorable Court;

2. The Summary Deportation Order of September 27, 19[9]5, affirmed by

respondent allegedly on June 14, 2002 and made known only yesterday,
be nullified to the extent that it directs the deportation of petitioner, who has
removed the very basis of said Order of not having a valid passport, and
that the Resolution of June 14, 2002 be nullified in toto; and,

3. The Temporary Restraining Order of June 26, 2002 be converted into a

permanent injunction or writ of prohibition.

Petitioner likewise prays for such other and further relief as may be deemed just and equitable
in the premises.[35]
Surprisingly, the respondent’s counsel received on July 24, 2003 a Letter from the petitioner
dated July 16, 2002 stating that, “the BOC was in the course of reviewing the deportation case
against Mr. Scheer, and that its findings would be given in due time.”[36]

On August 20, 2002, the Court of Appeals rendered a Decision in favor of the respondent
granting his petition for certiorari and prohibition and permanently enjoining the petitioner from
deporting the respondent. The decretal portion of the Decision reads:
WHEREFORE, premises considered, the petitions for certiorari and prohibition are hereby
GRANTED. Accordingly, any order, oral or written, issued by respondent Commissioner
Domingo against petitioner, in relation to his deportation, is hereby ANNULLED, and respondent
Commissioner Domingo is hereby permanently enjoined/prohibited from deporting petitioner, in
so far as this case is concerned.

It is likewise ordered that petitioner be released from his confinement/detention in the Bureau of
Immigration UNLESS there is/are fresh new grounds/cases that will warrant his continued
detention.

SO ORDERED.[37]
The Court of Appeals ruled that the German Embassy’s subsequent issuance of passport to the
respondent before the BOC’s issuance of its Omnibus Resolution had mooted the September
27, 1995 Summary Deportation Order, as well as the arrest and detention of the respondent.
According to the court, it made no sense to require the respondent to leave the country and
thereafter re-apply for admission with the BOC. Furthermore, since the grounds cited by the
BOC in its Summary Deportation Order no longer existed, there was no factual and legal basis
to disqualify the respondent from staying in the country.

On the issue of whether the members of the BOC were indispensable parties, the CA ruled as
follows:
a) There are quite a number of cases in relevant jurisprudence wherein only the Immigration
Commissioner was impleaded to decide whether an alien may stay or be deported, such as in
the case of Vivo vs. Arca (19 SCRA 878) and Vivo vs. Cloribel (22 SCRA 159).

b) In the case of Caruncho III vs. COMELEC (315 SCRA 693), it was pronounced that:
“Ordinarily, the nonjoinder of an indispensable party or the real party interest is not by itself a
ground for the dismissal of the petition. The court before which the petition is filed must first
require the joinder of such party. It is the noncompliance with said order that would be a ground
for the dismissal of the petition.”

thus, c) respondent may be estopped for not raising such issue earlier. [38]
Aggrieved, the respondent therein, now the petitioner, through the Office of the Solicitor
General, appealed to us for relief. The petitioner contends that the Court of Appeals erred on a
question of law in granting the respondent’s petition in CA-G.R. SP No. 71094.[39]

In support of his contention, the Solicitor General has submitted the following arguments:

I. THE WRIT OF MANDAMUS DOES NOT LIE AGAINST THE

COMMISSIONER OF THE BUREAU OF IMMIGRATION TO RESOLVE
RESPONDENT’S URGENT MOTION FOR RECONSIDERATION OF THE
SUMMARY DEPORTATION ORDER, CONSIDERING THAT IT IS THE
BOARD OF COMMISSIONERS, AND NOT THE COMMISSIONER
ALONE, WHICH HAS AUTHORITY TO MAKE SAID RESOLUTION.

II. THE WRIT OF CERTIORARI DOES NOT LIE AGAINST THE

COMMISSIONER OF THE BUREAU OF IMMIGRATION, CONSIDERING
THAT IT IS THE BOARD OF COMMISSIONERS, AND NOT THE
COMMISSIONER ALONE, WHICH ISSUED THE SUMMARY
DEPORTATION ORDER AND THE OMNIBUS RESOLUTION.

III. THE WRIT OF PROHIBITION DOES NOT LIE AGAINST THE

COMMISSIONER OF THE BUREAU OF IMMIGRATION, PROHIBITING
THE IMPLEMENTATION OF THE SUMMARY DEPORTATION ORDER
AND THE OMNIBUS RESOLUTION, CONSIDERING THAT THE BOARD
OF COMMISSIONERS WAS NOT IMPLEADED AS PARTY-
RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094.

IV. ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD OF

COMMISSIONERS WAS PROPERLY IMPLEADED AS PARTY-
RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094,
NEVERTHELESS, THE SUMMARY DEPORTATION ORDER AND THE
OMNIBUS RESOLUTION WERE NOT ISSUED WITHOUT OR IN EXCESS
OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF (SIC) EXCESS OF JURISDICTION.

V. FURTHER ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD

OF COMMISSIONERS WAS PROPERLY IMPLEADED AS PARTY-
RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094, THE
COMMISSIONER OF THE BUREAU OF IMMIGRATION DID NOT ACT
WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN IMPLEMENTING THE SUMMARY DEPORTATION
ORDER AND THE OMNIBUS RESOLUTION.[40]
Elucidating on his first three arguments, the petitioner maintains that the respondent’s petition
for certiorari, prohibition and mandamus before the Court of Appeals should have been
dismissed because he failed to implead the real party-in-interest as mandated by Rule 3,
Section 7 of the Rules of Court, as amended; in this case, the BOC. According to the Solicitor
General, this was a fatal procedural error. The inclusion of the BOC as respondent in the case
was necessary in order that its actions could be directly attacked and for the court to acquire
jurisdiction over it. The fact that Immigration Commissioner Andrea T. Domingo was impleaded
as the sole respondent was not enough, as she is only one of the four Commissioners.
Furthermore, the assailed Orders were issued by the Board, and not by the Immigration
Commissioner alone.

The respondent counters that the petitioner is already estopped from raising this issue. He
argues that -
In quite a number of jurisprudence, only the Immigration Commissioner is impleaded to decide
whether an alien may stay here or not. The bottom line is petitioner, head of the Bureau of
Immigration, was more than fully heard on its institutional position, a Bureau which speaks with
a single voice in this case. She is in estoppel for not raising the issue earlier, either in a timely
Comment or during the oral argument…[41]

In Caruncho III v. Comelec, it was held that-

[O]rdinarily, the nonjoinder of an indispensable party or real party in interest is not by itself a
ground for the dismissal of the petition. The court before which the petition is filed must first
require the joinder of such party. It is the noncompliance with said order that would be a ground
for the dismissal of the petition.

But even as the Court of Appeals did not require respondent of such joinder of parties, the
respondent, in fact, begged leave, ad cautelam, in its Reply Memorandum dated July 31, 2002
to implead the Board which speaks with a single voice anyway in this case, and therefore, no
claim can be made that a valid point of view has not been heard…[42]
Moreover, according to the respondent, the petitioner is clearly the BID’s chosen instrumentality
for the relevant purpose. What the respondent ultimately questioned are the acts or orders of
the petitioner for the arrest and immediate deportation of the respondent by way of
implementing the BOC’s Summary Deportation Order.

By way of reply, the Office of the Solicitor General asserted that the Summary Deportation
Order and Omnibus Resolution were collegial actions of the BOC and not of the petitioner alone.
Although its Chairperson, the petitioner, is merely a member thereof, her decisions and actions
are still subject to the collective will of the majority.[43]

The Ruling of the Court

The BOC is an
Indispensable
Party

We agree with the petitioner’s contention that the BOC was an indispensable party to the
respondent’s petition for certiorari, prohibition and mandamus in the Court of Appeals. The
respondent was arrested and detained on the basis of the Summary Deportation Order of the
BOC. The petitioner caused the arrest of the respondent in obedience to the said Deportation
Order. The respondent, in his Memorandum, prayed that the CA annul not only the Summary
Deportation Order of the BOC but also the latter’s Omnibus Resolution, and, thus, order the
respondent’s immediate release. The respondent also prayed that the CA issue a writ of
mandamus for the immediate resolution of his Urgent Motion for Reconsideration. The said
motion had to be resolved by the BOC as the order sought to be resolved and reconsidered was
issued by it and not by the petitioner alone. The powers and duties of the BOC may not be
exercised by the individual members of the Commission.[44]

Section 7, Rule 3 of the Rules of Court, as amended, requires indispensable parties to be joined
as plaintiffs or defendants. The joinder of indispensable parties is mandatory. Without the
presence of indispensable parties to the suit, the judgment of the court cannot attain real
finality.[45] Strangers to a case are not bound by the judgment rendered by the court. [46] The
absence of an indispensable party renders all subsequent actions of the court null and void.
Lack of authority to act not only of the absent party but also as to those present.[47] The
responsibility of impleading all the indispensable parties rests on the petitioner/plaintiff. [48]

However, the non-joinder of indispensable parties is not a ground for the dismissal of an action.
Parties may be added by order of the court on motion of the party or on its own initiative at any
stage of the action and/or such times as are just.[49] If the petitioner/plaintiff refuses to implead
an indispensable party despite the order of the court, the latter may dismiss the
complaint/petition for the petitioner/plaintiff’s failure to comply therefor.[50] The remedy is to
implead the non-party claimed to be indispensable.[51] In this case, the CA did not require the
respondent (petitioner therein) to implead the BOC as respondent, but merely relied on the
rulings of the Court in Vivo v. Arca,[52] and Vivo v. Cloribel.[53] The CA’s reliance on the said
rulings is, however, misplaced. The acts subject of the petition in the two cases were those of
the Immigration Commissioner and not those of the BOC; hence, the BOC was not a necessary
nor even an indispensable party in the aforecited cases.

The Non-joinder of an
Indispensable Party is not
a Ground for the Dismissal
of the Petition

The Court may be curing the defect in this case by adding the BOC as party-petitioner. The
petition should not be dismissed because the second action would only be a repetition of the
first.[54] In Salvador, et al., v. Court of Appeals, et al.,[55] we held that this Court has full powers,
apart from that power and authority which is inherent, to amend the processes, pleadings,
proceedings and decisions by substituting as party-plaintiff the real party-in-interest. The Court
has the power to avoid delay in the disposition of this case, to order its amendment as to
implead the BOC as party-respondent. Indeed, it may no longer be necessary to do so taking
into account the unique backdrop in this case, involving as it does an issue of public interest. [56]
After all, the Office of the Solicitor General has represented the petitioner in the instant
proceedings, as well as in the appellate court, and maintained the validity of the deportation
order and of the BOC’s Omnibus Resolution. It cannot, thus, be claimed by the State that the
BOC was not afforded its day in court, simply because only the petitioner, the Chairperson of
the BOC,[57] was the respondent in the CA, and the petitioner in the instant recourse. In Alonso
v. Villamor,[58] we had the occasion to state:
There is nothing sacred about processes or pleadings, their forms or contents. Their sole
purpose is to facilitate the application of justice to the rival claims of contending parties. They
were created, not to hinder and delay, but to facilitate and promote, the administration of justice.
They do not constitute the thing itself, which courts are always striving to secure to litigants.
They are designed as the means best adapted to obtain that thing. In other words, they are a
means to an end. When they lose the character of the one and become the other, the
administration of justice is at fault and courts are correspondingly remiss in the performance of
their obvious duty.
The CA had Jurisdiction
Over the Petition for
Certiorari, Prohibition
and Mandamus
We do not agree with the petitioner’s contention that the issue before the CA, as to the power of
the President to determine whether an alien may remain or be deported from the Philippines, is
beyond the appellate court’s competence to delve into and resolve. The contention of the
petitioner is based on a wrong premise.

The settled rule is that the authority to exclude or expel aliens by a power affecting international
relation is vested in the political department of the government, and is to be regulated by treaty
or by an act of Congress, and to be executed by the executive authority according to the
regulations so established, except in so far as the judicial department has been authorized by
treaty or by statute, or is required by the Constitution to intervene.[59] The judicial department
cannot properly express an opinion upon the wisdom or the justice of the measures executed by
Congress in the exercise of the power conferred on it,[60] by statute or as required by the
Constitution. Congress may, by statute, allow the decision or order of the Immigration
Commissioner or the BOC to be reviewed by the President of the Philippines or by the courts,
on the grounds and in the manner prescribed by law.

Article VIII, Section 1 of the Constitution has vested judicial power in the Supreme Court and the
lower courts such as the Court of Appeals, as established by law. Although the courts are
without power to directly decide matters over which full discretionary authority has been
delegated to the legislative or executive branch of the government and are not empowered to
execute absolutely their own judgment from that of Congress or of the President,[61] the Court
may look into and resolve questions of whether or not such judgment has been made with grave
abuse of discretion, when the act of the legislative or executive department violates the law or
the Constitution. In Harvy Bridges v. I.F. Wixon,[62] the United States Federal Supreme Court
reversed an Order of Deportation made by the Attorney General for insufficiency of evidence
and for “improper admission of evidence.” In Nging v. Nagh,[63] the United States Court of
Appeals (9th Circuit Court) held that conclusions of administrative offices on the issues of facts
are invulnerable in courts unless when they are not rendered by fair-minded men; hence, are
arbitrary. In Toon v. Stump,[64] the Court ruled that courts may supervise the actions of the
administrative offices authorized to deport aliens and reverse their rulings when there is no
evidence to sustain them. When acts or omissions of a quasi-judicial agency are involved, a
petition for certiorari or prohibition may be filed in the Court of Appeals as provided by law or by
the Rules of Court, as amended.[65]

In this case, the respondent alleges that the petitioner acted arbitrarily, contrary to law and with
grave abuse of discretion in causing his arrest and detention at a time when his Urgent Motion
for Reconsideration of the BOC’s Summary Deportation Order had yet to be resolved. There
was no factual or legal basis for his deportation considering that he was a documented alien and
a law-abiding citizen; the respondent, thus, prayed for a writ of mandamus to compel the
petitioner, the Chairperson of the BOC, to resolve the said motion. The petition before the CA
did not involve the act or power of the President of the Philippines to deport or exclude an alien
from the country. This being so, the petition necessarily did not call for a substitution of the
President’s discretion on the matter of the deportation of the respondent with that of the
judgment of the CA.

Irrefragably, the CA had jurisdiction over the petition of the respondent.

The BOC Committed a Grave

Abuse of Discretion Amounting
To Lack or Excess of Jurisdiction
In Issuing its Summary Deportation
Order and Omnibus Resolution; The
Petitioner Committed a Grave Abuse
Of Her Discretion Amounting to
Lack or Excess of Jurisdiction in
Causing the Arrest and Detention
Of The Private Respondent

On the Solicitor General’s fourth and fifth arguments, we are convinced that the BOC committed
a grave abuse of discretion amounting to excess or lack of jurisdiction in issuing its Summary
Deportation Order and Omnibus Resolution, and that the petitioner committed grave abuse of
discretion amounting to excess or lack of jurisdiction in causing the arrest and detention of the
private respondent.

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a
matter of grace; such privilege is not absolute nor permanent and may be revoked. However,
aliens may be expelled or deported from the Philippines only on grounds and in the manner
provided for by the Constitution, the Immigration Act of 1940, as amended, and administrative
issuances pursuant thereto. In Mejoff v. Director of Prisons,[66] we held, thus:
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines “adopts the generally accepted
principles of international law a part of the law of Nation.” And in a resolution entitled “Universal
Declaration of Human Rights” and approved by the General Assembly of the United Nations of
which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life
and liberty and all other fundamental rights as applied to all human beings were proclaimed. It
was there resolved that “All human beings are born free and equal in degree and rights” (Art. 1);
that “Everyone is entitled to all the rights and freedom set forth in this Declaration, without
distinction of any kind, such as race, color, sex, language, religion, political or other opinion,
nationality or social origin, property, birth, or other status” (Art. 2); that “Every one has the right
to an effective remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the Constitution or by law” (Art. 8); that “No one shall be subjected to
arbitrary arrest, detention or exile” (Art. 9); etc.
In this case, the BOC ordered the private respondent’s deportation on September 27, 1995
without even conducting summary deportation proceedings. The BOC merely relied on the June
29, 1995 Letter of the German Vice Consul and of the German Embassy’s Note Verbale No.
369/95 dated July 26, 1995. It issued the Summary Deportation Order on September 27, 1995
allegedly under paragraph 3 of Office Memorandum Order No. 34 dated August 21, 1989 which
reads:

3. If a foreign embassy cancels the passport of the alien or does not reissue a
valid passport to him, the alien loses the privilege to remain in the country,
under the Immigration Act, Sections 10 and 15 (Schonemann vs. Santiago,
et al., G.R. No. 81461, 30 May 1989). The automatic loss of the privilege
obviates deportation proceedings. In such instance, the Board of
Commissioners may issue summary judgment of deportation which shall be
immediately executory.

However, as gleaned from the Summary Deportation Order, the respondent was ordered
deported not only because his passport had already expired; the BOC speculated that the
respondent committed insurance fraud and illegal activities in the Philippines and would not,
thus, be issued a new passport. This, in turn, caused the BOC to conclude that the respondent
was an undesirable alien. Section 37(c) of Commonwealth Act No. 613, as amended, provides
that:
No alien shall be deported without being informed of the specific grounds for deportation or
without being given a hearing under rules of procedure to be prescribed by the Commissioner of
Immigration.
Under paragraphs 4 and 5 of Office Memorandum Order No. 34, an alien cannot be deported
unless he is given a chance to be heard in a full deportation hearing, with the right to adduce
evidence in his behalf, thus:
 4. All other cases shall be tried in full deportation hearing, with due
observance of the pertinent provisions of Law Instruction No. 39.

5. In all cases, the right of the alien to be informed of the charges against him,
to be notified of the time and place of hearing, when necessary, to examine
the evidence against him, and to present evidence in his own behalf, where
appropriate, shall be observed.

The respondent was not afforded any hearing at all. The BOC simply concluded that the
respondent committed insurance fraud and illegal activities in Palawan without any evidence.
The respondent was not afforded a chance to refute the charges. He cannot, thus, be arrested
and deported without due process of law as required by the Bill of Rights of the Constitution. In
Lao Gi v. Court of Appeals,[67] we held that:
Although a deportation proceeding does not partake of the nature of a criminal action, however,
considering that it is a harsh and extraordinary administrative proceeding affecting the freedom
and liberty of a person, the constitutional right of such person to due process should not be
denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal
procedure are applicable to deportation proceedings.
It must be noted that the respondent was a permanent resident before his passport expired on
July 2, 1995. In Chew v. Colding,[68] the United States Federal Supreme Court ruled:
It is well established that if an alien is a lawful permanent resident of the United States and
remains physically present there, he is a person within the protection of the Fifth Amendment.
He may not be deprived of his life, liberty or property without due process of law. Although it
later may be established, as respondents contend, that petitioner can be expelled and deported,
yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at
least before an executive or administrative tribunal. Although Congress may prescribe
conditions for his expulsion and deportation, not even Congress may expel him without allowing
him a fair opportunity to be heard.
As Mr. Justice Murphy said in his concurring opinion in Bridges v. Wixon:[69]
The Bill of Rights belongs to them as well as to all citizens. It protects them as long as they
reside within the boundaries of our land. It protects them in the exercise of the great individual
rights necessary to a sound political and economic democracy.
According to Vattal,[70] an alien who is a permanent resident in a country is a member of the new
society, at least as a permanent inhabitant, and is a kind of citizen of inferior order from the
native citizens; but is, nevertheless, limited and subject to the society, without participating in all
its advantages. Sir Robert Philconse called them “de facto,” though not de jure citizens of the
country of their domicile.[71]

Such permanent resident[72] may be classified as a “denizen,” a kind of middle state between
alien and a natural-born subject and partakes of both. Paraphrasing Justice Brewer in his
dissenting opinion in Fong Yue Ting v. United States,[73] when the right to liberty and residence
is involved, some other protection than the mere discretion of the petitioner or the BOC is
required. We recall the warning of the United States Supreme Court in Boyd v. United States:[74]
Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure. This can only be obviated by
adhering to the rule that constitutional provisions for the security of person and property should
be liberally construed. A close and literal construction deprives them of half their efficacy, and
leads to a gradual depreciation of the right, as if it consisted more in sound than in substance. It
is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. Their motto should be obsta principiis.
In sum, the arrest and detention of the respondent and his deportation under the Summary
Deportation Order of the BOC for insurance fraud and illegal activities in Palawan violated his
constitutional and statutory rights to due process.
The Respondent’s Arrest and
Detention was Premature,
Unwarranted and Arbitrary

We agree that the Immigration Commissioner is mandated to implement a legal and valid
Summary Deportation Order within a reasonable time. But in this case, the arrest of the
respondent in his house, at near midnight, and his subsequent detention was premature,
unwarranted and arbitrary. Like a thunderbolt in the sky, the BID agents and marines arrested
the respondent on June 6, 2002, on orders of the petitioner based on the September 27, 1995
Summary Deportation Order. Under the basic rudiments of fair play and due process, the
petitioner was required to first resolve the respondent’s Urgent Motion for Reconsideration of the
said Order, which was filed more than six years before or on December 5, 1995.

It may be argued that respondent’s filing of an Urgent Motion for Reconsideration did not ipso
facto suspend the efficacy of the BOC’s deportation order. However, such an argument cannot
be sustained in this case because of the extant and peculiar factual milieu. It bears stressing
that more than six years had elapsed, from the time the Summary Deportation Order was
issued, until the respondent was finally arrested. Supervening facts and circumstances rendered
the respondent’s arrest and detention unjust, unreasonable, barren of factual and legal basis.
The BOC should have set the respondent’s motion for hearing to afford him a chance to be
heard and adduce evidence in support thereon. It was bad enough that the BOC issued its
Summary Deportation Order without a hearing; the BOC dealt the respondent a more severe
blow when it refused to resolve his motion for reconsideration before causing his arrest on June
6, 2002.

As aforestated, the BOC ordered the deportation of the respondent after a summary proceeding
without prior notice on the following grounds: (a) the respondent’s German passport had
expired; (b) there was a pending criminal case for physical injuries against him in Germany; (c)
the respondent indulged in illegal activities in Palawan; (d) that in all likelihood, the respondent’s
passport will not be renewed by the German Embassy as he was wanted for insurance fraud in
Germany; and, (e) he was an undesirable alien. But then, in response to the written query of no
less than the petitioner herself, the German Embassy declared that the respondent was not
wanted by the German police for any crime, including insurance fraud. This could only mean
that the warrant of arrest issued by the German Federal police mentioned in Note Verbale No.
369/95 had been lifted, and that the respondent was not involved in any illegal activities in
Germany. The criminal case against the respondent for physical injuries, which does not involve
moral turpitude, was dismissed by the German District Court. Furthermore, there was no
evidence of insurance fraud against the respondent.

The BOC issued its Summary Deportation Order without affording the respondent the right to be
heard on his motion and adduce evidence thereon. It merely concluded that the respondent was
involved in “illegal activities in Palawan.” What made matters worse was that the BOC indulged
in sheer speculation, that the German Embassy is unlikely to issue a new passport to the
respondent. The deportation of aliens should not be based on mere speculation or a mere
product of procrastinations as in this case. As it turned out, the German Embassy re-issued the
respondent’s passport; he was issued a temporary passport, and, thereafter, a regular passport,
yet to expire on March 12, 2006. The petitioner cannot feign ignorance of this matter because
the respondent himself, six years before he was arrested, informed then Immigration
Commissioner Verceles in a Letter dated March 1, 1996. The respondent’s letter forms part of
the records of the BOC. There is no evidence on record that the respondent committed any
illegal activities in Palawan. He was even designated as special agent of the NBI, and was, in
fact, issued clearances by the PNP and the NBI no less. Despite all the foregoing, the petitioner
ordered and caused the arrest and detention of the respondent.

What is most nettlesome is the apparent antedating of the BOC Omnibus Resolution. The
records show that the petitioner sought to assuage the respondent’s concern on the belated
resolution of his pending urgent motion for reconsideration in a Letter to the latter’s counsel
dated July 18, 2002 in which the petitioner assured the respondent that the BOC will provide
him of its action on the said motion:
Dear Atty. Sagisag,

We respond to your letter of 17 June 2002 by informing you that the case of Mr. Herbert Scheer
is being evaluated by the Board of Commissioners (BOC). The BOC will provide you of the
results of its collegial action in due time.

Very truly yours,

(Sgd.) ANDREA D. DOMINGO
Commissioner[75]
However, the Omnibus Resolution of the BOC was dated June 14, 2002, although on its face it
was filed with the Records Division of the BID only on July 18, 2002.

The foregoing gave reason for the CA to suspect that the Omnibus Resolution of the BOC was
antedated.[76] The petition of the respondent in the CA must have jolted the petitioner and the
BOC from its stupor because it came out with its Omnibus Resolution on July 18, 2002, which
was, however, dated as early as June 14, 2002. The respondent had to wait in anxiety for the
BOC to quench his quest for justice. The BOC’s wanton acts amounted to an abdication of its
duty to act and/or resolve cases/incidents with reasonable dispatch. To recall our ruling in Board
of Commissioners v. De la Rosa,[77] citing Sheor v. Bengson,[78] thus:
This inaction or oversight on the part of the immigration officials has created an anomalous
situation which, for reasons of equity, should be resolved in favor of the minor herein involved.
The petitioner and the BOC should have taken to heart the following pronouncement in
Commissioner of Immigration v. Fernandez:[79]
In the face of the disclosure that Teban Caoili had been all along working in the Avenue
Electrical Supply Co. (Avesco), located at No. 653 Rizal Avenue, Manila, until his arrest, and the
documentary evidence showing that he had been issued a Philippine Passport; had regularly
paid his Residence Tax Certificates (A & B), and filed Income Tax Returns, a finding of fact is
necessary whether the Commissioner really had intended to notify Teban Caoili of the exclusion
proceedings the Board had conducted in his absence. While it may be true that the proceedings
is purely administrative in nature, such a circumstance did not excuse the serving of notice.
There are cardinal primary rights which must be respected even in proceedings of administrative
character, the first of which is the right of the party interested or affected to present his own case
and submit evidence in support thereof.[80]
...

Since the proceedings affected Caoili’s status and liberty, notice should have been given. And in
the light of the actuations of the new Board of Commissioners, there is a necessity of
determining whether the findings of the Board of Special Inquiry and the old Board of
Commissioners are correct or not. This calls for an examination of the evidence, and, the law on
the matter.[81]
Apparently, the BOC did not bother to review its own records in resolving the respondent’s
Urgent Motion for Reconsideration. It anchored its Omnibus Resolution only on the following:
the membership of the BOC had changed when it issued its September 27, 1995 Summary
Deportation Order and under Commonwealth Act No. 613, Section 27(b); the BOC is precluded
from reversing a previous order issued by it;[82]and, the September 27, 1995 Order of the BOC
had become final and could no longer be reviewed and reversed by it after the lapse of one
year.[83] However, the rulings cited by the petitioner are not applicable in the instant case, as the
said cases cited involve appeals to the BOC from the decisions of the Board of Special Inquiry
(BSI). In Sy v. Vivo[84] and Lou v. Vivo,[85] we ruled that under Section 27(b) of Commonwealth
Act No. 613, as amended, the Decision of the BOC on appeal from the decision of the BSI
becomes final and executory after one year:
(b) A board of special inquiry shall have authority (1) to determine whether an alien seeking to
enter or land in the Philippines shall be allowed to enter or land or shall be excluded, and (2) to
make its findings and recommendations in all the cases provided for in section twenty-nine of
this Act wherein the Commissioner of Immigration may admit an alien who is otherwise
inadmissible. For this purpose, the board or any member thereof, may administer oaths and
take evidence and in case of necessity may issue subpoena and/or subpoena duces tecum. The
hearing of all cases brought before a board of special inquiry shall be conducted under rules of
procedure to be prescribed by the Commissioner of Immigration. The decision of any two
members of the board shall prevail and shall be final unless reversed on appeal by the Board of
Commissioners as hereafter stated, or in the absence of an appeal, unless reversed by the
Board of Commissioners after a review by it, motu propio, of the entire proceedings within one
year from the promulgation of the decision.
In Commissioner of Immigration v. Fernandez,[86] we held that the BOC composed of new
members is precluded from reversing, motu proprio, the decision of the BOC on appeal from a
BSI decision. But not to be ignored was our ruling that “at any rate, the issue of authority should
be made in accordance with the procedure established by law, with a view to protecting the
rights of individuals.”[87]

In this case, the Summary Deportation Order was issued by the BOC in the exercise of its
authority under Office Memorandum Order No. 34, and not in the exercise of its appellate
jurisdiction of BSI decisions. There is no law nor rule which provides that a Summary
Deportation Order issued by the BOC in the exercise of its authority becomes final after one
year from its issuance,[88] or that the aggrieved party is barred from filing a motion for a
reconsideration of any order or decision of the BOC. The Rules of Court may be applied in a
suppletory manner to deportation proceedings[89] and under Rule 37, a motion for
reconsideration of a decision or final order may be filed by the aggrieved party.

Neither is there any law nor rule providing that the BOC, composed of new members, cannot
revise a Summary Deportation Order previously issued by a different body of Commissioners.
The BOC that issued the Summary Deportation Order and the BOC which resolved the
respondent’s Urgent Motion for Reconsideration are one and the same government entity, with
the same powers and duties regardless of its membership. Similarly, an RTC judge who
replaces another judge who presided over a case may review the judgment or order of his
predecessor as long as the said judgment or order has not as yet become final or executory.
The act subject of review is not the act of the judge but the act of the court.

The petitioner’s contention that it failed to resolve the respondent’s motion for reconsideration
because of the change of administration in the BOC was branded by the CA as flimsy, if not
bordering on the absurd:
Firstly, it was issued three days (June 14, 2002) after petitioner filed this instant petition on June
11, 2002 or almost seven years from the time the motion for reconsideration was filed;

Secondly, respondent’s counsel’s excuse that it took such time to resolve it because it was only
later that the motion for reconsideration was discovered because of change of administration, is
flimsy, if not bordering on the absurd;[90]
The Issuance of a New and Regular
Passport to the Respondent
Rendered the Summary
Deportation Order Moot and
Academic, and the Omnibus
Resolution of the BOC Lacking
in Legal Basis
We agree with the petitioner that a foreign embassy’s cancellation of the passport it had issued
to its citizens, or its refusal to issue a new one in lieu of a passport that has expired, will result in
the loss of the alien’s privilege to stay in this country and his subsequent deportation therefrom.
But even the BOC asserted in its Summary Deportation Order that an embassy’s issuance of a
new passport to any of its citizens may bar the latter’s deportation, citing the resolution of this
Court in Schonemann v. Commissioner Santiago.[91]

Irrefragably, Commissioner Verceles was mandated to cause the arrest of the respondent
preparatory to his deportation from the Philippines. However, there was no fixed period in the
Order within which to comply with the same. The Commissioner is not mandated to deport an
alien immediately upon receipt of the BOC’s deportation order. It is enough that the
Commissioner complies with the Order within a “reasonable time,” which, in Mejoff v. Director of
Prisons,[92] we held to connote as follows:
The meaning of “reasonable time” depends upon the circumstances, specially the difficulties of
obtaining a passport, the availability of transportation, the diplomatic arrangements with the
governments concerned and the efforts displayed to send the deportee away; but the Court
warned that “under established precedents, too long a detention may justify the issuance of a
writ of habeas corpus.
In this case, the BOC had yet to act on the respondent’s Urgent Motion for Reconsideration. The
respondent was also given a chance to secure a clearance and a new passport with the
German Embassy. After all, the possibility that the German Embassy would renew the
respondent’s passport could not be ruled out. This was exactly what happened: the German
Embassy issued a new passport to the respondent on March 12, 1996 after the German District
Court dismissed the case for physical injuries. Thus, the respondent was no longer an
undocumented alien; nor was he an undesirable one for that matter.

The petitioner even admits that there is no longer a legal or factual basis to disqualify the
respondent from remaining in the country as a permanent resident. Yet, the OSG insists that he
has to be deported first so that the BOC’s Summary Deportation Order could be implemented.
This contention was rejected by the CA, thus:
During the hearing of petitioner’s prayer for issuance of a writ of preliminary injunction before
Us, respondent’s counsel from the Office of the Solicitor General had the occasion to manifest in
open court that the State has no opposition to petitioner’s stay in the country provided he first
leave and re-enter and re-apply for residency if only to comply with the Summary Deportation
Order of 1995. That, to Our mind, seems preposterous, if not ridiculous. An individual’s human
rights and rights to freedom, liberty and self-determination recognize no boundaries in the
democratic, free and civilized world. Such rights follow him wherever he may be. If presently,
there is no factual or legal impediment to disqualify petitioner in his stay in the country, other
than allegedly those relied upon in the Summary Deportation Order of 1995 (as hereinbefore
discussed, had ceased to exist), requiring petitioner to leave the country and re-enter and re-
apply for residency makes little sense or no sense at all, more so, in the case of petitioner who,
for many years past, had lived herein and nurtured a family that is Filipino.

Thus, opined, We, therefore, believe and hereby rule, that there is presently every reason to
enjoin/prohibit the Bureau of Immigration, respondent Commissioner Domingo in particular, from
presently deporting petitioner.[93]
We agree with the Court of Appeals. The Summary Deportation Order had been rendered moot
and academic upon the German Embassy’s issuance of a new passport to the respondent. The
respondent had been in the Philippines as a permanent resident since July 18, 1986, and had
married a Filipino citizen, with whom he has two children. He is not a burden to the country nor
to the people of Palawan. He put up, and has been managing, the Bavaria Restaurant with
about 30 employees. He has no pending criminal case; nor does he have any derogatory
record. The respondent was allowed by then Immigration Commissioner Verceles to renew his
passport and was given time to secure a clearance from the German Embassy. The respondent
was able to do so. The case against him for physical injuries was dismissed by the German
District Court. Thus, the inceptual basis for the respondent’s deportation had ceased to exist.

The power to deport is a police matter against undesirable aliens, whose presence in the
country is found to be injurious to the public good. We believe that the deportation of the
respondent late in the day did not achieve the said purpose. The petitioner admitted that there is
no longer a factual and legal basis to disqualify the respondent from staying in the country. He is
not an undesirable alien; nor is his presence in the country injurious to public good. He is even
an entrepreneur and a productive member of society.

Arrest, detention and deportation orders of aliens should not be enforced blindly and
indiscriminately, without regard to facts and circumstances that will render the same unjust,
unfair or illegal.[94] To direct the respondent to leave the country first before allowing him re-entry
is downright iniquitous.[95] If the respondent does leave the country, he would thereby be
accepting the force and effect of the BOC’s Summary Deportation Order with its attendant
infirmities. He will thereby lose his permanent resident status and admit the efficacy of the
cancellation of his permanent resident visa. Moreover, his entry into the country will be subject
to such conditions as the petitioner may impose.

The deportation of an alien is not intended as a punishment or penalty. But in a real sense, it is.
In Bridges v. Wixon,[96] Mr. Justice Murphy declared that the impact of deportation upon the life
of an alien is often as great if not greater than the imposition of a criminal sentence. In dealing
with deportation, there is no justifiable reason for disregarding the democratic and human tenets
of our legal system and descending to the practices of despotism. As Justice Brewer opined in
Fong Yue Ting v. United States,[97] deportation is a punishment because it requires first, an
arrest, a deprivation of liberty and second, a removal from home, from family, from business,
from property. To be forcibly taken away from home, family, business and property and sent
across the ocean to a distant land is punishment; and that oftentimes is most severe and cruel.
It would be putting salt on the respondent’s woes occasioned by the BOC’s ineptitude.
Considering the peculiar backdrop and the equities in this case, the respondent’s deportation
and the cancellation of his permanent resident visa as a precondition to his re-entry into this
country is severe and cruel; it is a form of punishment.

Our ruling in Vivo v. Cloribel,[98] has no application in this case, precisely because the factual
milieu here is entirely different. In that case, the Commissioner of Immigration required the
respondents to leave the country on or before September 12, 1962, because their stay in the
country as approved by the Secretary of Justice had been cancelled. Our ruling in Bing v.
Commission on Immigration,[99] even buttresses the case for the respondent since we ruled
therein that an alien entitled to a permanent stay cannot be deported without being accorded
due notice and hearing.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision of the Court of
Appeals is AFFIRMED.

SO ORDERED.

[chbreak]

(11) POWER OVER LEGISLATION, (C) VETO POWER

CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE LEUTERIO, ET AL.

VS. HON. FRANKLIN N. DRILON (G.R. No. 103524, April 15, 1992)

DECISION
GUTIERREZ, JR., J.:

The issue in this petition is the constitutionality of the veto by the President of certain provisions
in the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the
adjusted pensions of retired Justices of the Supreme Court and the Court of Appeals.

The petitioners are retired Justices of the Supreme Court and Court of Appeals who are
currently receiving monthly pensions under Republic Act No. 910 as amended by Republic Act
No. 1797. They filed the instant petition on their own behalf and in representation of all other
retired Justices of the Supreme Court and the Court of Appeals similarly situated.

Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon. Guillermo Carague
as Secretary of the Department of Budget and Management, and Hon. Rosalina Cajucom, the
Treasurer of the Philippines. The respondents are sued in their official capacities, being officials
of the Executive Department involved in the implementation of the release of funds appropriated
in the Annual Appropriations Law.

We treat the Comments of the Office of the Solicitor General (OSG) as an Answer and decide
the petition on its merits.

The factual backdrop of this case is as follows:

On June 20, 1953, Republic Act No. 910 was enacted to provide the retirement pensions of
Justices of the Supreme Court and of the Court of Appeals who have rendered at least twenty
(20) years service either in the Judiciary or in any other branch of the Government or in both,
having attained the age of seventy (70) years or who resign by reason of incapacity to discharge
the duties of the office. The retired Justice shall receive during the residue of his natural life the
salary which he was receiving at the time of his retirement or resignation.

Republic Act No. 910 was amended by Republic Act No. 1797 (approved on June 21, 1957)
which provided that:

"Sec. 3-A In case the salary of Justices of the Supreme Court or of the Court of Appeals is
increased or decreased, such increased or decreased salary shall, for purposes of this Act, be
deemed to be the salary or the retirement pension which a Justice who as of June twelve,
nineteen hundred fifty-four had ceased to be such to accept another position in the Government
or who retired was receiving at the time of his cessation in office. Provided, that any benefits
that have already accrued prior to such increase or decrease shall not be affected thereby".

Identical retirement benefits were also given to the members of the Constitutional Commissions
under Republic Act No. 1568, as amended by Republic Act No. 3595. On November 12, 1974,
on the occasion of the Armed Forces Loyalty Day, President Marcos signed Presidential Decree
578 which extended similar retirement benefits to the members of the Armed Forces giving them
also the automatic readjustment features of Republic Act No. 1797 and Republic Act No. 3595.

Two months later, however President Marcos issued Presidential Decree 644 on January 25,
1975 repealing Section 3-A of Republic Act No. 1797 and Republic Act No. 3595 (amending
Republic Act No. 1568 and Presidential Decree No. 578) which authorized the adjustment of the
pension of the retired Justices of the Supreme Court, Court of Appeals, Chairman and members
of the Constitutional Commissions and the officers and enlisted members of the Armed Forces
to the prevailing rates of salaries.

Significantly, under Presidential Decree 1638 the automatic readjustment of the retirement
pension of officers and enlisted men was subsequently restored by President Marcos. A later
decree Presidential Decree 1909 was also issued providing for the automatic readjustment of
the pensions of members of the Armed Forces who have retired prior to September 10, 1979.
While the adjustment of the retirement pensions for members of the Armed Forces who number
in the tens of thousands was restored, that of the retired Justices of the Supreme Court and
Court of Appeals who are only a handful and fairly advanced in years, was not.

Realizing the unfairness of the discrimination against the members of the Judiciary and the
Constitutional Commissions, Congress approved in 1990 a bill for the reenactment of the
repealed provisions of Republic Act No. 1797 and Republic Act No. 3595. Congress was under
the impression that Presidential Decree 644 became law after it was published in the Official
Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297 and Senate Bill No.
740, the legislature saw the need to reenact Republic Act Nos. 1797 and 3595 to restore said
retirement pensions and privileges of the retired Justices and members of the Constitutional
Commissions in order to assure those serving in the Supreme Court, Court of Appeals and
Constitutional Commissions adequate old age pensions even during the time when the
purchasing power of the peso has been diminished substantially by worldwide recession or
inflation. This is underscored by the fact that the petitioner retired Chief Justice, a retired
Associate Justice of the Supreme Court and the retired Presiding Justice are presently receiving
monthly pensions of P3,333.33, P2,666.66 and P2,333.33 respectively.

President Aquino, however vetoed House Bill No. 16297 on July 11, 1990 on the ground that
according to her "it would erode the very foundation of the Government's collective effort to
adhere faithfully to and enforce strictly the policy on standardization of compensation as
articulated in Republic Act No. 6758 known as Compensation and Position Classification Act of
1989." She further said that "the Government should not grant distinct privileges to select group
of officials whose retirement benefits under existing laws already enjoy preferential treatment
over those of the vast majority of our civil service servants".

Prior to the instant petition, however, Retired Court of Appeals Justices Manuel P. Barcelona,
Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R. Lood filed a letter/petition dated April 22,
1991 which we treated as Administrative Matter No. 91-8-225-CA. The petitioners asked this
Court for a readjustment of their monthly pensions in accordance with Republic Act No.
1797. They reasoned out that Presidential Decree 644 repealing Republic Act No. 1797 did not
become law as there was no valid publication pursuant to Tañada v. Tuvera, (136 SCRA 27
[1985] and 146 SCRA 446 [1986]). Presidential Decree 644 promulgated on January 24, 1975
appeared for the first time only in the supplemental issue of the Official Gazette, (Vol. 74 No. 14)
purportedly dated April 4, 1977 but published only on September 5, 1983. Since Presidential
Decree 644 has no binding force and effect of law, it therefore did not repeal Republic Act No.
1797.

In a Resolution dated November 28, 1991 the Court acted favorably on the request. The
dispositive portion reads as follows:

"WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan P. Enriquez, Juan
O. Reyes and Guardson Lood are GRANTED. It is hereby AUTHORIZED that their monthly
pensions be adjusted and paid on the basis of RA 1797 effective January 1, 1991 without
prejudice to the payment of their pension differentials corresponding to the previous years upon
the availability of funds for the purpose."

Pursuant to the above resolution, Congress included in the General Appropriations Bill for
Fiscal Year 1992 certain appropriations for the Judiciary intended for the payment of the
adjusted pension rates due the retired Justices of the Supreme Court and Court of Appeals.

The pertinent provisions in House Bill No. 34925 are as follows:

"XXVIII. THE JUDICIARY

A. Supreme Court of the Philippines and the Lower Courts.

"For general administration, administration of personnel benefits, supervision of courts,
adjudication of constitutional questions appealed and other cases, operation and maintenance
of the Judicial and Bar Council in the Supreme Court, and the adjudication of regional court
cases, metropolitan court cases, municipal trial court cases in Cities, municipal circuit court
cases, municipal court cases, Shari’a district court cases and Shari’a circuit court cases as
indicated hereunder….P2,095,651,000
xxx xxx xxx

"Special Provisions.

“1. Augmentation of any Item in the Court's Appropriations. Any savings in the appropriation
for the Supreme Court and the Lower Courts may be utilized by the Chief Justice of the
Supreme Court to augment any item of the Court's appropriations for: (a) printing of decisions
and publications of Philippine Reports; (b) 'commutable terminal leaves of Justices and other
personnel of the Supreme Court and payment of adjusted pension rates to retired Justices
entitled thereto pursuant to Administrative Matter No. 91-8-225-C.A; (c) repair, maintenance,
improvement, and other operating expenses of the courts’ books and periodicals; (d) purchase,
maintenance and improvement of printing equipment; (e) necessary expenses for the
employment of temporary employees, contractual and casual employees, for judicial
administration; (f) maintenance and improvement of the Court’s Electronic Data Processing (g)
extraordinary expenses of the Chief Justice, attendance in international conferences and
conduct of training programs; (h) commutable transportation and representation allowances and
fringe benefits for Justices, Clerks of Court, Court Administrator, Chief of-Offices and other
Court personnel in accordance with the rates prescribed by law; and (i) compensation of
attorneys-de-oficio: PROVIDED, that as mandated by LOI No. 489 any increases in salary and
allowances shall be subject to the usual procedures and policies as provided for under P.D. No.
985 and other pertinent laws." (page 1071, General Appropriations Act, FY 1992; Emphasis
supplied)
xxx xxx xxx
"4. Payment of Adjusted Pension Rates to Retired Justices. The amount herein appropriated for
payment of pensions to retired judges and justices shall include the payment of pensions at the
adjusted rates to retired justices of the Supreme Court entitled thereto pursuant to the ruling of
the court in Administrative Matter No. 91-8-225-C.A. page 1071, General Appropriations Act,
FY 1992)."
xxx xxx xxx

Activities and Purposes

"1. General Administration and Support Services.

a. General administrative
services ………………………………… P43,515,000
b. Payment of retirement gratuity of national government
officials and employees ……… P206,717,000
c. Payment of terminal leave benefits to officials and
employees entitled thereto ……………P 55,316,000
d. Payment of pensions to retired judges and justices entitled
thereto ………. ……………….. P 22,500,000
(page 1071, General Appropriations Act, FY 1992)
"C. COURT OF APPEALS

"For general administration, administration of personnel benefits and the adjudication of

appealed and other cases as indicated hereunder ……………..……………………..
P114,615,000

Special Provisions.

1. Authority to Use Savings. Subject to the approval of the Chief Justice of the Supreme Court
in accordance with Section 25(5), Article VI of the Constitution of the Republic of the Philippines,
the Presiding Justice may be authorized to use any savings in any item of the appropriation for
the Court of Appeals for purposes of: (1) improving its compound and facilities; and (2) for
augmenting any deficiency in any item of its appropriation including its extraordinary expenses
and payment of adjusted pension rates to retired justices entitled thereto pursuant to
Administrative Matter No. 91-8-225-C.A. (page 1079, General Appropriations Act, FY 1992;
Emphasis supplied)
2. Payment of Adjusted Pension Rates to Retired Justices. The amount herein appropriated for
payment of pensions to retired judges and justices shall include the payment of pensions at the
adjusted rates to retired justices of the Court of Appeals entitled thereto pursuant to the Ruling
of the Supreme Court in Administrative Matter No. 91-8-225-C.A. (page 1079 General
Appropriations Act, FY 1992).

"XL. GENERAL FUND ADJUSTMENT

For general fund adjustment for operational and special requirements as indicated
hereunder ..……… P500,000,000
xxx xxx xxx

Special Provision

1. Use of the Fund. This fund shall be used for:

xxx xxx xxx
1.3. Authorized overdrafts and/or valid unbooked obligations, including the payment of back
salaries and related personnel benefits arising from decision of competent authority including
the Supreme Court decision in Administrative Matter No. 91-8-225-C.A. and COA decision in
No. 1704." (page 1164, Gen. Appropriations Act, FY 1992; Emphasis supplied)

On January 15, 1992, the President vetoed the underlined portions of Section 1 and the entire
Section 4 of the Special Provisions for the Supreme Court of the Philippines and the Lower
Courts (General Appropriations Act, FY 1992, page 1071) and the underlined portions of
Section 1 and the entire Section 2, of the Special Provisions for the Court of Appeals (page
1079) and the underlined portions of Section 1.3 of Article XLV of the Special Provisions of the
General Fund Adjustments (page 1164, General Appropriations Act, FY 1992).

The reason given for the veto of said provisions is that "the resolution of this Honorable Court in
Administrative Matter No. 91-8-225-CA pursuant to which the foregoing appropriations for the
payment of the retired justices of the Supreme Court and the Court of Appeals have been
enacted effectively nullified the veto of the President of House Bill No. 16297, the bill which
provided for the automatic increase in the retirement pensions of the Justices of the Supreme
Court and the Court of Appeals and chairmen of the Constitutional Commissions by re-enacting
Republic Act No. 1797 and Republic Act No. 3595. The President's veto of the aforesaid
provisions was further justified by reiterating the earlier reasons for vetoing House Bill No.
16297: “they would erode the very foundation of our collective effort to adhere faithfully to and
enforce strictly the policy on standardization of compensation. We should not permit the grant
of distinct privileges to select group of officials whose retirement pensions under existing laws
already enjoy preferential treatment over those of the vast majority of our civil servants."

Hence, the instant petition filed by the petitioners with the assertions that:

1) The subject veto is not an item veto;

2) The veto by the Executive is violative of the doctrine of separation of powers;

3) The veto deprives the retired Justices of their rights to the pensions due them;

4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution.

Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to the attention of this
Court that the veto constitutes no legal obstacle to the continued payment of the adjusted
pensions pursuant to the Court's resolution.

On February 14, 1992, the Court resolved to consolidate Administrative Matter No. 91-8-225-CA
with G.R. No. 103524.

The petitioners' contentions are well-taken.

It cannot be overstressed that in a constitutional government such as ours, the rule of law must
prevail. The Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest official of this land, must defer. From this
cardinal postulate, it follows that the three branches of government must discharge their
respective functions within the limits of authority conferred by the Constitution. Under the
principle of separation of powers, neither Congress, the President, nor the Judiciary may
encroach on fields allocated to the other branches of government. The legislature is generally
limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to
their interpretation and application to cases and controversies.

The Constitution expressly confers on the judiciary the power to maintain inviolate what it
decrees. As the guardian of the Constitution we cannot shirk the duty of seeing to it that the
officers in each branch of government do not go beyond their constitutionally allocated
boundaries and that the entire Government itself or any of its branches does not violate the
basic liberties of the people. The essence of this judicial duty was emphatically explained by
Justice Laurel in the leading case of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to
wit:

"The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other department, it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them." (Emphasis supplied)

The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally
vested power. But even as the Constitution grants the power, it also provides limitations to its
exercise. The veto power is not absolute.
The pertinent provision of the Constitution reads:

"The President shall have the power to veto any particular item or items in an appropriation,
revenue or tariff bill but the veto shall not affect the item or items to which he does not object."
(Section 27(2), Article VI, Constitution)

The OSG is correct when it states that the Executive must veto a bill in its entirety or not at
all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a
bill that he or she dislikes. In the exercise of the veto power, it is generally all or
nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration
needs the money to run the machinery of government and it can not veto the entire bill even if it
may contain objectionable features. The President is, therefore, compelled to approve into law
the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely
provided the "item veto power" to avoid inexpedient riders being attached to an indispensable
appropriation or revenue measure.

The Constitution provides that only a particular item or items may be vetoed. The power to
disapprove any item or items in an appropriate bill does not grant the authority to veto a part of
an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191
SCRA 452, 464 [1990])

We distinguish an item from a provision in the following manner:

"The terms item and provision in budgetary legislation and practice are concededly
different. An item in a bill refers to the particulars, the details, the distinct and severable parts x
x x of the bill (Bengzon, supra, at 916.) It is an indivisible sum of money dedicated to a stated
purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United
States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct
252, 81 L. Ed., 312) declared ‘that an ‘item’ of an appropriation bill obviously means an item
which in itself is a specific appropriation of money, not some general provision of law, which
happens to be put into an appropriation bill.’" (id. at page 465)

We regret having to state that misimpressions or unfortunately wrong advice must have been
the basis of the disputed veto.

The general fund adjustment is an item which appropriates P500,000,000.00 to enable the
Government to meet certain unavoidable obligations which may have been inadequately funded
by the specific items for the different branches, departments, bureaus, agencies, and offices of
the government.

The President did not veto this item. What were vetoed were methods or systems placed by
Congress to insure that permanent and continuing obligations to certain officials would be paid
when they fell due.

An examination of the entire sections and the underlined portions of the law which were vetoed
will readily show that portions of the item have been chopped up into vetoed and unvetoed
parts. Less than all of an item has been vetoed. Moreover, the vetoed portions are not
items. They are provisions.

Thus, the augmentation of specific appropriations found inadequate to pay retirement payments,
by transferring savings from other items of appropriation is a provision and not an item. It gives
power to the Chief Justice to transfer funds from one item to another. There is no specific
appropriation of money involved.

In the same manner, the provision which states that in compliance with decisions of the
Supreme Court and the Commission on Audit, funds still undetermined in amount may be drawn
from the general fund adjustment is not an item. It is the "general fund adjustment" itself which
is the item. This was not touched. It was not vetoed.

More ironic is the fact that misinformation led the Executive to believe that the items in the 1992
Appropriations Act were being vetoed when, in fact, the veto struck something else.

What were really vetoed are:

(1) Republic Act No. 1797 enacted as early as June 21, 1957; and

(2) The Resolution of the Supreme Court dated November 28, 1991 in Administrative Matter
No. 91-8-225-CA.

We need no lengthy justifications or citations of authorities to declare that no President may veto
the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither
may the President set aside or reverse a final and executory judgment of this Court through the
exercise of the veto power.

A few background facts may be reiterated to fully explain the unhappy situation.

Republic Act No. 1797 provided for the adjustment of pensions of retired Justices which
privilege was extended to retired members of Constitutional Commissions by Republic Act No.
3595.

On January 25, 1975, President Marcos issued Presidential Decree No. 644 which repealed
Republic Acts 1797 and 3595. Subsequently, automatic readjustment of pensions for retired
Armed Forces officers and men was surreptitiously restored through Presidential Decree Nos.
1638 and 1909.

It was the impression that Presidential Decree No. 644 had reduced the pensions of Justices
and Constitutional Commissioners which led Congress to restore the repealed provisions
through House Bill No. 16297 in 1990. When her finance and budget advisers gave the wrong
information that the questioned provisions in the 1992 General Appropriations Act were simply
an attempt to overcome her earlier 1990 veto, she issued the veto now challenged in this
petition.

It turns out, however, that P. D. No. 644 never became valid law. If P. D. No. 644 was not law, it
follows that Rep. Act No. 1797 was not repealed and continues to be effective up to the
present. In the same way that it was enforced from 1957 to 1975, so should it be enforced
today.

House Bill No. 16297 was superfluous as it tried to restore benefits which were never taken
away validly. The veto of House Bill No. 16297 in 1990 did not also produce any effect. Both
were based on erroneous and non-existent premises.

From the foregoing discussion, it can be seen that when the President vetoed certain provisions
of the 1992 General Appropriations Act, she was actually vetoing Republic Act No. 1797 which,
of course, is beyond her power to accomplish.

Presidential Decree No. 644 which purportedly repealed Republic Act No. 1797 never achieved
that purpose because it was not properly published. It never became a law.

The case of Tañada v. Tuvera (136 SCRA 27 [1985] and 146 SCRA 446 [1986]) specifically
requires that "all laws shall immediately upon their approval or as soon thereafter as possible,
be published in full in the Official Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in accordance with Article 2 of the
Civil Code". This was the Court's answer to the petition of Senator Lorenzo Tañada and other
opposition leaders who challenged the validity of Marcos’ decrees which, while never published,
were being enforced. Secret decrees are anathema in a free society.

In support of their request, the petitioners in Administrative Matter No. 91-8-225-CA secured a
certification from Director Lucita C. Sanchez of the National Printing Office that the April 4,1977
Supplement to the Official Gazette was published only on September 5, 1983 and officially
released on September 29, 1983.

On the issue of whether or not Presidential Decree 644 became law, the Court has already
categorically spoken in a definitive ruling on the matter, to wit:

xxx xxx xxx

"PD 644 was promulgated by President Marcos on January 24, 1975, but was not immediately
or soon thereafter published although preceding and subsequent decrees were duly published
in the Official Gazette. It now appears that it was intended as a secret decree "NOT FOR
PUBLICATION" as the notation on the face of the original copy thereof plainly indicated (Annex
B). It is also clear that the decree was published in the backdated Supplement only after it was
challenged in the Tanada Case as among the presidential decrees that had not become
effective for lack of the required publication. The petition was filed on May 7, 1983, four months
before the actual publication of the decree.
It took more than eight years to publish the decree after its promulgation in 1975. Moreover, the
publication was made in bad faith insofar as it purported to show that it was done in 1977 when
the now demonstrated fact is that the April 4, 1977 supplement was actually published and
released only in September 1983. The belated publication was obviously intended to refute the
petitioner's claim in the Tanada Case and to support the Solicitor General's submission that the
petition had become moot and academic.
xxx xxx xxx
xxx xxx xxx
We agree that PD 644 never became a law because it was not validly published and that,
consequently, it did not have the effect of repealing RA 1797. The requesting justices (including
Justice Lood, whose request for the upgrading of his pension was denied on January 15, 1991)
are therefore entitled to be paid their monthly pensions on the basis of the latter measure, which
remains unchanged to date."

The Supreme Court has spoken and it has done so with finality, logically and rightly so as to
assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA 80
[1988]) Like other decisions of this Court, the ruling and principles set out in the Court resolution
constitute binding precedent. (Bulig-Bulig Kita Kamaganak Association, et al. v. Sulpicio Lines,
Inc. and Regional Trial Court, etc. G.R. 84750, 16 May 89, En Banc, Minute Resolution)

The challenged veto has far-reaching implications which the Court can not countenance as they
undermine the principle of separation of powers. The Executive has no authority to set aside
and overrule a decision of the Supreme Court.

We must emphasize that the Supreme Court did not enact Rep. Act No. 1797. It is not within its
powers to pass laws in the first place. Its duty is confined to interpreting or defining what the law
is and whether or not it violates a provision of the Constitution.

As early as 1953, Congress passed a law providing for retirement pensions to retired Justices of
the Supreme Court and the Court of Appeals. This law was amended by Republic Act 1797 in
1957. Funds necessary to pay the retirement pensions under these statutes are deemed
automatically appropriated every year.
Thus, Congress included in the General Appropriations Act of 1992, provisions identifying funds
and savings which may be used to pay the adjusted pensions pursuant to the Supreme Court
Resolution. As long as retirement laws remain in the statute book, there is an existing obligation
on the part of the government to pay the adjusted pension rate pursuant to RA 1797 and AM-91-
8-225-CA.

Neither may the veto power of the President be exercised as a means of repealing RA
1797. This is arrogating unto the Presidency legislative powers which are beyond its
authority. The President has no power to enact or amend statutes promulgated by her
predecessors much less to repeal existing laws. The President's power is merely to execute the
laws as passed by Congress.

II

There is a matter of greater consequence arising from this petition. The attempt to use the veto
power to set aside a Resolution of this Court and to deprive retirees of benefits given them by
Rep. Act No. 1797 trenches upon the constitutional grant of fiscal autonomy to the Judiciary.

Sec. 3 Art. VIII mandates that:

"Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released."

We can not overstress the importance of and the need for an independent judiciary. The Court
has on various past occasions explained the significance of judicial independence. In the case
of De la Llana v. Alba (112 SCRA 294 [1982]), it ruled:

"It is a cardinal rule of faith of our constitutional regime that it is the people who are endowed
with rights, to secure which a government is instituted. Acting as it does through public officials,
it has to grant them either expressly or implicitly certain powers. These they exercise not for
their own benefit but for the body politic. x x x

"A public office is a public trust. That is more than a moral adjuration. It is a legal
imperative. The law may vest in a public official certain rights. It does so to enable them to
perform his functions and fulfill his responsibilities more efficiently. x x x It is an added
guarantee that justices and judges can administer justice undeterred by any fear of reprisal or
untoward consequence. Their judgments then are even more likely to be inspired solely by their
knowledge of the law and the dictates of their conscience, free from the corrupting influence of
base or unworthy motives. The independence of which they are assured is impressed with a
significance transcending that of a purely personal right." (At pp. 338-339)

The exercise of the veto power in this case may be traced back to the efforts of the Department
of Budget and Management (DBM) to ignore or overlook the plain mandate of the Constitution
on fiscal autonomy. The OSG Comment reflects the same truncated view of the provision.

We have repeatedly in the past few years called the attention of DBM that not only does it
allocate less than one percent (1%) of the national budget annually for the 22,769 Justices,
Judges, and court personnel all over the country but it also examines with a fine-toothed comb
how we spend the funds appropriated by Congress based on DBM recommendations.

The gist of our position papers and arguments before Congress is as follows:

"The DBM requires the Supreme Court, the Constitutional Commissions, and the Ombudsman
to submit budget proposals in accordance with parameters it establishes. DBM evaluates the
proposals, asks each agency to defend its proposals during DBM budget hearings, submits its
own version of the proposals to Congress without informing the agency of major alterations and
mutilations inflicted on their proposals, and expects each agency to defend in Congress
proposals not of the agency's making.
After the general appropriations bill is passed by Congress and signed into law by the President,
the tight and officious control by DBM continues. For the release of appropriated funds, the
Judiciary, Constitutional Commissions, and Ombudsman are instructed through ‘guidelines’,
how to prepare Work and Financial Plans and requests for monthly allotments. The DBM
evaluates and approves these plans and requests and on the basis of its approval authorizes
the release of allotments with corresponding notices of cash allocation. These notices specify
the maximum withdrawals each month which the Supreme Court, the Commissions, and the
Ombudsman may make from the servicing government bank. The above agencies are also
required to submit to DBM monthly, quarterly, and year-end budget accountability reports to
indicate their performance, physical and financial operations, and income.
The DBM reserves to itself the power to review the accountability reports and, when importuned
for needed funds, to release additional allotments to the agency. Since DBM always prunes the
budget proposals to below subsistence levels and since emergency situations usually occur
during the fiscal year, the Chief Justice, Chairmen of the Commissions, and Ombudsman are
compelled to make pilgrimages to DBM for additional funds to tide their respective agencies
over the emergency."

What is fiscal autonomy?

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources
with the wisdom and dispatch that their needs require. It recognizes the power and authority to
levy, assess and collect fees, fix rates of compensation not exceeding the highest rates
authorized by law for compensation and pay plans of the government and allocate and disburse
such sums as may be provided by law or prescribed by them in the course of the discharge of
their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to
Congress without even informing us, the autonomy given by the Constitution becomes an empty
and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based. In the interest of comity and cooperation, the Supreme
Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to
constant reminders. We now agree with the petitioners that this grant of autonomy should
cease to be a meaningless provision.

In the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly
repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the
utilization of the funds appropriated for the expenditures of the judiciary, including the use of any
savings from any particular item to cover deficits or shortages in other items of the judiciary is
withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the
disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is
aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment
appropriations where augmentation is needed.

Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the
authority of the President and other key officials to augment any item or any appropriation from
savings in the interest of expediency and efficiency. The Court stated that:

"There should be no question, therefore, that statutory authority has, in fact, been granted. And
once given, the heads of the different branches of the Government and those of the
Constitutional Commissions are afforded considerable flexibility in the use of public funds and
resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way
endangered because the transfer is made within a department (or branch of government) and
not from one department (branch) to another."

The Constitution, particularly Article VI Section 25(5) also provides:

"Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their respective offices
from savings in other items of their respective appropriations."

In the instant case, the vetoed provisions which relate to the use of savings for augmenting
items for the payment of the pension differentials, among others, are clearly in consonance with
the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice
to augment other items in the Judiciary's appropriation, in contravention of the constitutional
provision on "fiscal autonomy".

III

Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions
due them pursuant to RA 1797.

The right to a public pension is of statutory origin and statutes dealing with pensions have been
enacted by practically all the states in the United States (State ex rel. Murray v. Riley, 44 Del
505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the
support of Judges or Justices on retirement are founded on services rendered to the
state. Where a judge has complied with the statutory prerequisite for retirement with pay, his
right to retire and draw salary becomes vested and may not, thereafter, be revoked or
impaired. (Gay v. Whitehurst 44 So ad 430)

Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which
is to entice competent men and women to enter the government service and to permit them to
retire therefrom with relative security, not only those who have retained their vigor but, more so,
those who have been incapacitated by illness or accident. (In re: Amount of the Monthly
Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the
Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990])

As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the
Supreme Court and Court of Appeals.

This was amended by RA 1797 which provided for an automatic adjustment of the pension
rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees
better benefits.
P. D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that
the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of
Appeals were entitled was to be computed on the basis of the highest monthly aggregate of
transportation, living and representation allowances each Justice was receiving on the date of
his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law
on gratuities covers the monthly pensions of retired Judges and Justices which should include
the highest monthly aggregate of transportation, living and representation allowances the retiree
was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and
Justices, supra)

The rationale behind the veto which implies that Justices and Constitutional officers are unduly
favored is, again, a misimpression.

Immediately, we can state that retired Armed Forces officers and enlisted men number in the
tens of thousands while retired Justices are so few they can be immediately identified. Justices
retire at age 70 while military men retire at a much younger age - some retired Generals left the
military at age 50 or earlier. Yet, the benefits in Rep. Act No. 1797 are made to apply equally to
both groups. Any ideas arising from an alleged violation of the equal protection clause should
first be directed to retirees in the military or civil service where the reason for the retirement
provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of
retired Justices whose retirement pensions are founded on constitutional reasons.

The provisions regarding retirement pensions of Justices arise from the package of protections
given by the Constitution to guarantee and preserve the independence of the Judiciary.

The Constitution expressly vests the power of judicial review in this Court. Any institution given
the power to declare, in proper cases, that acts of both the President and Congress are
unconstitutional needs a high degree of independence in the exercise of its functions. Our
jurisdiction may not be reduced by Congress. Neither may it be increased without our advice
and concurrence. Justices may not be removed until they reach age 70 except through
impeachment. All courts and court personnel are under the administrative supervision of the
Supreme Court. The President may not appoint any Judge or Justice unless he or she has
been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court's
supervision. Our salaries may not be decreased during our continuance in office. We cannot
be designated to any agency performing administrative or quasi-judicial functions. We are
specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal
and coordinate with the Executive and Legislative Departments. (Article VIII and Section 30,
Article VI, Constitution)

Any argument which seeks to remove special privileges given by law to former Justices of this
Court on the ground that there should be no "grant of distinct privileges" or "preferential
treatment" to retired Justices ignores these provisions of the Constitution and, in effect, asks
that these Constitutional provisions on special protections for the Judiciary be repealed. The
integrity of our entire constitutional system is premised to a large extent on the independence of
the Judiciary. All these provisions are intended to preserve that independence. So are the laws
on retirement benefits of Justices.

One last point.

The Office of the Solicitor General argues that:
"xxx Moreover, by granting these benefits to retired Justices implies that public funds, raised
from taxes on other citizens, will be paid off to select individuals who are already leading private
lives and have ceased performing public service. Said the United States Supreme Court,
speaking through Mr. Justice Miller: ‘To lay with one hand the power of the government on the
property of the citizen, and with the other to bestow upon favored individuals ... is nonetheless a
robbery because it is done under the forms of law x x x.’ (Law Association v. Topeka, 20 Wall
655)” (Comment, p. 16)

The above arguments are not only specious, impolite and offensive; they certainly are
unbecoming of an Office whose top officials are supposed to be, under their charter, learned in
the law.

Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes,
Cecilia Munoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the
Supreme Court and the Court of Appeals may no longer be in the active service. Still, the
Solicitor General and all lawyers under him who represent the Government before the two
courts and whose predecessors themselves appeared before these retirees, should show some
continuing esteem and good manners toward these Justices who are now in the evening of their
years.

All that the retirees ask is to be given the benefits granted by law. To characterize them as
engaging in "robbery" is intemperate, abrasive, and disrepectful more so because the argument
is unfounded.

If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then
quality of research in that institution has severely deteriorated.

In the first place, the citation of the case is wrong. The title is not LAW Association v. Topeka
but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City, (20 Wall. 655; 87
U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involves the validity of a statute authorizing
cities and counties to issue bonds for the purpose of building bridges, waterpower, and other
public works to aid private railroads improve their services. The law was declared void on the
ground that the right of a municipality to impose a tax cannot be used for private interests.

The case was decided in 1874. The world has turned over more than 40,000 times since that
ancient period. Public use is now equated with public interest. Public money may now be used
for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where
only private persons are the immediate beneficiaries. What was "robbery" in 1874 is now called
"social justice." There is nothing about retirement benefits in the cited case. Obviously, the
OSG lawyers cited from an old textbook or encyclopedia which could not even spell "loan"
correctly. Good lawyers are expected to go to primary sources and to use only relevant
citations.

The Court has been deluged with letters and petitions by former colleagues in the Judiciary
requesting adjustments in their pensions Just so they would be able to cope with the everyday
living expenses not to mention the high cost of medical bills that old age entails. As Justice
Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991):

"Retirement laws should be interpreted liberally in favor of the retiree because their intention is
to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to
continue earning his livelihood. After devoting the best years of his life to the public service, he
deserves the appreciation of a grateful government as best concretely expressed in a generous
retirement gratuity commensurate with the value and length of his services. That generosity is
the least he should expect now that his work is done and his youth is gone. Even as he feels
the weariness in his bones and glimpses the approach of the lengthening shadows, he should
be able to luxuriate in the thought that he did his task well, and was rewarded for it."

For as long as these retired Justices are entitled under laws which continue to be effective, the
government can not deprive them of their vested right to the payment of their pensions.
WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal
and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid
and subsisting. The respondents are ordered to automatically and regularly release pursuant to
the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other
appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated
November 28, 1991 is likewise ordered to be implemented as promulgated.

SO ORDERED.

[chbreak]

(13) IMMUNITY FROM SUITS

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO VS. GLORIA MACAPAGAL-ARROYO

(G.R. No. 183871, February 18, 2010)

DECISION

VELASCO JR., J.:

In this petition for review under Rule 45 of the Rules of Court in relation to Section 19 [1] of the
Rule on the Writ of Amparo[2] (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and
Mary Joy Rubrico Carbonel assail and seek to set aside the Decision[3] of the Court of Appeals
(CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo
Rule.

The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court.
After issuing the desired writ and directing the respondents to file a verified written return, the
Court referred the petition to the CA for summary hearing and appropriate action. The petition
and its attachments contained, in substance, the following allegations:

1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron
(AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico
(Lourdes), then attending a Lenten pabasa in Bagong Bayan, Dasmariñas, Cavite, and brought
to, and detained at, the air base without charges. Following a week of relentless interrogation -
conducted alternately by hooded individuals - and what amounts to verbal abuse and mental
harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at
Dasmariñas, Cavite, her hometown, but only after being made to sign a statement that she
would be a military asset.

After Lourdes' release, the harassment, coming in the form of being tailed on at least two
occasions at different places, i.e., Dasmariñas, Cavite and Baclaran in Pasay City, by
motorcycle-riding men in bonnets, continued;

2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-
station commander of Bagong Bayan, Dasmariñas, Cavite, kept sending text messages to
Lourdes' daughter, Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her
questions about Karapatan, an alliance of human rights organizations. He, however, failed to
make an investigation even after Lourdes' disappearance had been made known to him;

3. A week after Lourdes' release, another daughter, Jean R. Apruebo (Jean), was constrained to
leave their house because of the presence of men watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and
arbitrary detention and administrative complaint for gross abuse of authority and grave
misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana
(Santana) and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj.
Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Parañaque City, but nothing
has happened; and the threats and harassment incidents have been reported to the Dasmariñas
municipal and Cavite provincial police stations, but nothing eventful resulted from their
respective investigations.

Two of the four witnesses to Lourdes' abduction went into hiding after being visited by
government agents in civilian clothes; and

5. Karapatan conducted an investigation on the incidents. The investigation would indicate that
men belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the
Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the
abduction of Lourdes; that unknown to the abductors, Lourdes was able to pilfer a "mission
order" which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF.

The petition prayed that a writ of amparo issue, ordering the individual respondents to desist
from performing any threatening act against the security of the petitioners and for the Office of
the Ombudsman (OMB) to immediately file an information for kidnapping qualified with the
aggravating circumstance of gender of the offended party. It also prayed for damages and for
respondents to produce documents submitted to any of them on the case of Lourdes.

Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon,
then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.)
Avelino Razon, then Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.)
Roquero of the Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired,
and the OMB (answering respondents, collectively) filed, through the Office of the Solicitor
General (OSG), a joint return on the writ specifically denying the material inculpatory averments
against them. The OSG also denied the allegations against the following impleaded persons,
namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or
information sufficient to form a belief as to the allegations' truth. And by way of general
affirmative defenses, answering respondents interposed the following defenses: (1) the
President may not be sued during her incumbency; and (2) the petition is incomplete, as it fails
to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.[4]

Attached to the return were the affidavits of the following, among other public officials,
containing their respective affirmative defenses and/or statements of what they had undertaken
or committed to undertake regarding the claimed disappearance of Lourdes and the
harassments made to bear on her and her daughters:

1. Gen. Esperon - attested that, pursuant to a directive of then Secretary of National Defense
(SND) Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with
information to all concerned units, to conduct an investigation to establish the circumstances
behind the disappearance and the reappearance of Lourdes insofar as the involvement of
alleged personnel/unit is concerned. The Provost Marshall General and the Office of the Judge
Advocate General (JAGO), AFP, also undertook a parallel action.

Gen. Esperon manifested his resolve to provide the CA with material results of the investigation;
to continue with the probe on the alleged abduction of Lourdes and to bring those responsible,
including military personnel, to the bar of justice when warranted by the findings and the
competent evidence that may be gathered in the investigation process by those mandated to
look into the matter;[5]
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a
copy of the petition is on-going vis-à-vis Lourdes' abduction, and that a background verification
with the PNP Personnel Accounting and Information System disclosed that the names Santana,
Alfaro, Cuaresma and one Jonathan do not appear in the police personnel records, although the
PNP files carry the name of Darwin Reyes Y. Muga.

Per the initial investigation report of the Dasmariñas municipal police station, P/Dir. Gen. Razon
disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and
dragged aboard a Toyota Revo with plate number XRR 428, which plate was issued for a
Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam St., Merville Subd.,
Parañaque City. The person residing in the apartment on that given address is one Darius/Erwin
See @ Darius Reyes allegedly working, per the latter's house helper, in Camp Aguinaldo.

P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor
coordinated with the local police or other investigating units of the PNP after her release,
although she is in the best position to establish the identity of her abductors and/or provide
positive description through composite sketching. Nonetheless, he manifested that the PNP is
ready to assist and protect the petitioners and the key witnesses from threats, harassments and
intimidation from whatever source and, at the same time, to assist the Court in the
implementation of its orders.[6]

3. P/Supt. Roquero - stated conducting, upon receipt of Lourdes' complaint, an investigation

and submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes
nor her relatives provided the police with relevant information;

4. P/Insp. Gomez - alleged that Lourdes, her kin and witnesses refused to cooperate with the
investigating Cavite PNP; and

5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles
267 and 124, or kidnapping and arbitrary detention, respectively, have been filed with, and are
under preliminary investigation by the OMB against those believed to be involved in Lourdes'
kidnapping; that upon receipt of the petition for a writ of amparo, proper coordination was made
with the Office of the Deputy Ombudsman for the Military and other Law Enforcement Offices
(MOLEO) where the subject criminal and administrative complaints were filed.

Commenting on the return, petitioners pointed out that the return was no more than a general
denial of averments in the petition. They, thus, pleaded to be allowed to present evidence ex
parte against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And
with leave of court, they also asked to serve notice of the petition through publication, owing to
their failure to secure the current address of the latter five and thus submit, as the CA required,
proof of service of the petition on them.

The hearing started on November 13, 2007.[7] In that setting, petitioners' counsel prayed for the
issuance of a temporary protection order (TPO) against the answering respondents on the basis
of the allegations in the petition. At the hearing of November 20, 2007, the CA granted
petitioners' motion that the petition and writ be served by the court's process server on Darwin
Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.

The legal skirmishes that followed over the propriety of excluding President Arroyo from the
petition, petitioners' motions for service by publication, and the issuance of a TPO are not of
decisive pertinence in this recital. The bottom line is that, by separate resolutions, the CA
dropped the President as respondent in the case; denied the motion for a TPO for the court's
want of authority to issue it in the tenor sought by petitioners; and effectively denied the motion
for notice by publication owing to petitioners' failure to submit the affidavit required under Sec.
17, Rule 14 of the Rules of Court.[8]

After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this
review, disposing of the petition but only insofar as the answering respondents were concerned.
The fallo of the CA decision reads as follows:

WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the

instant petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino
Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the
Ombudsman.

Nevertheless, in order that petitioners' complaint will not end up as another unsolved case, the
heads of the Armed Forces of the Philippines and the Philippine National Police are directed to
ensure that the investigations already commenced are diligently pursued to bring the
perpetrators to justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen.
Avelino Razon are directed to regularly update petitioners and this Court on the status of their
investigation.

SO ORDERED.

In this recourse, petitioners formulate the issue for resolution in the following wise:

WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and
dropping President Gloria Macapagal Arroyo as party respondent.

Petitioners first take issue on the President's purported lack of immunity from suit during her
term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore
enjoyed by the chief executive under the 1935 and 1973 Constitutions.

Petitioners are mistaken. The presidential immunity from suit remains preserved under our
system of government, albeit not expressly reserved in the present constitution. Addressing a
concern of his co-members in the 1986 Constitutional Commission on the absence of an
express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already
understood in jurisprudence that the President may not be sued during his or her tenure. [9] The
Court subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise
resolved under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity
during her incumbency, and why this must be so:

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may
not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution
or law. It will degrade the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only
one constitutes the executive branch and anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government.[10] x x x

And lest it be overlooked, the petition is simply bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners' protected rights.

This brings us to the correctness of the assailed dismissal of the petition with respect to Gen.
Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.

None of the four individual respondents immediately referred to above has been implicated as
being connected to, let alone as being behind, the alleged abduction and harassment of
petitioner Lourdes. Their names were not even mentioned in Lourdes' Sinumpaang Salaysay[11]
of April 2007. The same goes for the respective Sinumpaang Salaysay and/or Karagdagang
Sinumpaang Salaysay of Jean[12] and Mary Joy.[13]

As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the
theory that they, as commanders, were responsible for the unlawful acts allegedly committed by
their subordinates against petitioners. To the appellate court, "the privilege of the writ of amparo
must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that
petitioners have not presented evidence showing that those who allegedly abducted and illegally
detained Lourdes and later threatened her and her family were, in fact, members of the military
or the police force." The two generals, the CA's holding broadly hinted, would have been
accountable for the abduction and threats if the actual malefactors were members of the AFP or
PNP.

As regards the three other answering respondents, they were impleaded because they allegedly
had not exerted the required extraordinary diligence in investigating and satisfactorily resolving
Lourdes' disappearance or bringing to justice the actual perpetrators of what amounted to a
criminal act, albeit there were allegations against P/Insp. Gomez of acts constituting threats
against Mary Joy.

While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon
and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale
underpinning the assailed decision vis-à-vis the two generals, i.e., command responsibility. The
Court assumes the latter stance owing to the fact that command responsibility, as a concept
defined, developed, and applied under international law, has little, if at all, bearing in amparo
proceedings.

The evolution of the command responsibility doctrine finds its context in the development of
laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its
simplest terms, means the "responsibility of commanders for crimes committed by subordinate
members of the armed forces or other persons subject to their control in international wars or
domestic conflict."[14] In this sense, command responsibility is properly a form of criminal
complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,[15]
foreshadowing the present-day precept of holding a superior accountable for the atrocities
committed by his subordinates should he be remiss in his duty of control over them. As then
formulated, command responsibility is "an omission mode of individual criminal liability,"
whereby the superior is made responsible for crimes committed by his subordinates for failing
to prevent or punish the perpetrators[16] (as opposed to crimes he ordered).

The doctrine has recently been codified in the Rome Statute[17] of the International Criminal
Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual
responsibility on military commanders for crimes committed by forces under their control. The
country is, however, not yet formally bound by the terms and provisions embodied in this treaty-
statute, since the Senate has yet to extend concurrence in its ratification. [18]

While there are several pending bills on command responsibility,[19] there is still no Philippine
law that provides for criminal liability under that doctrine.[20]

It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made
applicable to this jurisdiction on the theory that the command responsibility doctrine now
constitutes a principle of international law or customary international law in accordance with the
incorporation clause of the Constitution.[21] Still, it would be inappropriate to apply to these
proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form
of criminal complicity through omission, for individual respondents' criminal liability, if there be
any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings
on any issue of criminal culpability, even if incidentally a crime or an infraction of an
administrative rule may have been committed. As the Court stressed in Secretary of National
Defense v. Manalo (Manalo),[22] the writ of amparo was conceived to provide expeditious and
effective procedural relief against violations or threats of violation of the basic rights to life,
liberty, and security of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability
requiring substantial evidence that will require full and exhaustive proceedings." [23] Of the same
tenor, and by way of expounding on the nature and role of amparo, is what the Court said in
Razon v. Tagitis:

It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof
or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate
remedies to address the disappearance [or extra-judicial killings].

xxxx

As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are
not crimes penalized separately from the component criminal acts undertaken to carry out these
killings and enforced disappearances and are now penalized under the Revised Penal Code
and special laws. The simple reason is that the Legislature has not spoken on the matter; the
determination of what acts are criminal x x x are matters of substantive law that only the
Legislature has the power to enact.[24] x x x

If command responsibility were to be invoked and applied to these proceedings, it should, at

most, be only to determine the author who, at the first instance, is accountable for, and has the
duty to address, the disappearance and harassments complained of, so as to enable the Court
to devise remedial measures that may be appropriate under the premises to protect rights
covered by the writ of amparo. As intimated earlier, however, the determination should not be
pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a
prelude to administrative disciplinary proceedings under existing administrative issuances, if
there be any.

Petitioners, as the CA has declared, have not adduced substantial evidence pointing to
government involvement in the disappearance of Lourdes. To a concrete point, petitioners have
not shown that the actual perpetrators of the abduction and the harassments that followed
formally or informally formed part of either the military or the police chain of command. A
preliminary police investigation report, however, would tend to show a link, however hazy,
between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes
and the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo. [25]
Then, too, there were affidavits and testimonies on events that transpired which, if taken
together, logically point to military involvement in the alleged disappearance of Lourdes, such
as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle
blindfolded and then being brought to a place where the sounds of planes taking off and landing
could be heard. Mention may also be made of the fact that Lourdes was asked about her
membership in the Communist Party and of being released when she agreed to become an
"asset."

Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely
Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established.

Based on the separate sworn statements of Maj. Paul Ciano[26] and Technical Sergeant John N.
Romano,[27] officer-in-charge and a staff of the 301st AISS, respectively, none of the alleged
abductors of Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were
they members of any unit of the Philippine Air Force, per the certification [28] of Col. Raul
Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a verification with
the Personnel Accounting and Information System of the PNP yielded the information that,
except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro,
Santana and Jonathan, were not members of the PNP. Petitioners, when given the opportunity
to identify Police Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same
Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes' abduction.

Petitioners, to be sure, have not successfully controverted answering respondents' documentary

evidence, adduced to debunk the former's allegations directly linking Lourdes' abductors and
tormentors to the military or the police establishment. We note, in fact, that Lourdes, when
queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent.[29] The
Court is, of course, aware of what was referred to in Razon[30] as the "evidentiary difficulties"
presented by the nature of, and encountered by petitioners in, enforced disappearance cases.
But it is precisely for this reason that the Court should take care too that no wrong message is
sent, lest one conclude that any kind or degree of evidence, even the outlandish, would suffice
to secure amparo remedies and protection.

Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum
evidentiary substantiation requirement and norm to support a cause of action under the Rule,
thus:

Sec. 17. Burden of Proof and Standard of Diligence Required.--The parties shall establish their
claims by substantial evidence.

xxxx

Sec. 18. Judgment.--x x x If the allegations in the petition are proven by substantial evidence,
the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied. (Emphasis added.)

Substantial evidence is more than a mere imputation of wrongdoing or violation that would
warrant a finding of liability against the person charged;[31] it is more than a scintilla of evidence.
It means such amount of relevant evidence which a reasonable mind might accept as adequate
to support a conclusion, even if other equally reasonable minds might opine otherwise. [32] Per
the CA's evaluation of their evidence, consisting of the testimonies and affidavits of the three
Rubrico women and five other individuals, petitioners have not satisfactorily hurdled the
evidentiary bar required of and assigned to them under the Amparo Rule. In a very real sense,
the burden of evidence never even shifted to answering respondents. The Court finds no
compelling reason to disturb the appellate court's determination of the answering respondents'
role in the alleged enforced disappearance of petitioner Lourdes and the threats to her family's
security.

Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen.
Razon, per their separate affidavits, lost no time, upon their receipt of the order to make a return
on the writ, in issuing directives to the concerned units in their respective commands for a
thorough probe of the case and in providing the investigators the necessary support. As of this
date, however, the investigations have yet to be concluded with some definite findings and
recommendation.

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have
no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats
against her daughters. As police officers, though, theirs was the duty to thoroughly investigate
the abduction of Lourdes, a duty that would include looking into the cause, manner, and like
details of the disappearance; identifying witnesses and obtaining statements from them; and
following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and
securing and preserving evidence related to the abduction and the threats that may aid in the
prosecution of the person/s responsible. As we said in Manalo,[33] the right to security, as a
guarantee of protection by the government, is breached by the superficial and one-sided--
hence, ineffective--investigation by the military or the police of reported cases under their
jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero
and P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners' complaint. They could
not, however, make any headway, owing to what was perceived to be the refusal of Lourdes,
her family, and her witnesses to cooperate. Petitioners' counsel, Atty. Rex J.M.A. Fernandez,
provided a plausible explanation for his clients and their witnesses' attitude, "[They] do not
trust the government agencies to protect them."[34] The difficulty arising from a situation
where the party whose complicity in extra-judicial killing or enforced disappearance, as the case
may be, is alleged to be the same party who investigates it is understandable, though.

The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to
pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to
its natural end. To repeat what the Court said in Manalo, the right to security of persons is a
guarantee of the protection of one's right by the government. And this protection includes
conducting effective investigations of extra-legal killings, enforced disappearances, or threats of
the same kind. The nature and importance of an investigation are captured in the Velasquez
Rodriguez case,[35] in which the Inter-American Court of Human Rights pronounced:

[The duty to investigate] must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the
State as its own legal duty, not a step taken by private interests that depends upon the
initiative of the victim or his family or upon offer of proof, without an effective search for the
truth by the government. (Emphasis added.)

This brings us to Mary Joy's charge of having been harassed by respondent P/Insp. Gomez.
With the view we take of this incident, there is nothing concrete to support the charge, save for
Mary Joy's bare allegations of harassment. We cite with approval the following self-explanatory
excerpt from the appealed CA decision:

In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret)
committed against her or her mother and sister, Mary Joy replied "None ..." [36]

Similarly, there appears to be no basis for petitioners' allegations about the OMB failing to act on
their complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to
petitioners' contention, the OMB has taken the necessary appropriate action on said complaint.
As culled from the affidavit[37] of the Deputy Overall Ombudsman and the joint affidavits[38] of the
designated investigators, all dated November 7, 2007, the OMB had, on the basis of said
complaint, commenced criminal[39] and administrative[40] proceedings, docketed as OMB-P-C-
07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan,
and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified position
papers had been sent out.

The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial
killings and enforced disappearances or threats of similar nature, regardless of whether the
perpetrator of the unlawful act or omission is a public official or employee or a private individual.

At this juncture, it bears to state that petitioners have not provided the CA with the correct
addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed
envelopes containing the petition for a writ of amparo individually addressed to each of them
have all been returned unopened. And petitioners' motion interposed before the appellate court
for notice or service via publication has not been accompanied by supporting affidavits as
required by the Rules of Court. Accordingly, the appealed CA partial judgment--disposing of the
underlying petition for a writ of amparo without (1) pronouncement as to the accountability, or
lack of it, of the four non-answering respondents or (2) outright dismissal of the same petition as
to them--hews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving
cases.[41] Parenthetically, petitioners have also not furnished this Court with sufficient data as to
where the afore-named respondents may be served a copy of their petition for review.

Apart from the foregoing considerations, the petition did not allege ultimate facts as would link
the OMB in any manner to the violation or threat of violation of the petitioners' rights to life,
liberty, or personal security.

The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to
life, liberty, and security of persons, free from fears and threats that vitiate the quality of this
life.[42] It is an extraordinary writ conceptualized and adopted in light of and in response to the
prevalence of extra-legal killings and enforced disappearances.[43] Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be
diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than
the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated
allegations.

In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order
the impleaded respondents "to immediately desist from doing any acts that would threaten or
seem to threaten the security of the Petitioners and to desist from approaching Petitioners, x x x
their residences and offices where they are working under pain of contempt of [this] Court."
Petitioners, however, failed to adduce the threshold substantive evidence to establish the
predicate facts to support their cause of action, i.e., the adverted harassments and threats to
their life, liberty, or security, against responding respondents, as responsible for the
disappearance and harassments complained of. This is not to say, however, that petitioners'
allegation on the fact of the abduction incident or harassment is necessarily contrived. The
reality on the ground, however, is that the military or police connection has not been adequately
proved either by identifying the malefactors as components of the AFP or PNP; or in case
identification is not possible, by showing that they acted with the direct or indirect acquiescence
of the government. For this reason, the Court is unable to ascribe the authorship of and
responsibility for the alleged enforced disappearance of Lourdes and the harassment and
threats on her daughters to individual respondents. To this extent, the dismissal of the case
against them is correct and must, accordingly, be sustained.

Prescinding from the above considerations, the Court distinctly notes that the appealed decision
veritably extended the privilege of the writ of amparo to petitioners when it granted what to us
are amparo reliefs. Consider: the appellate court decreed, and rightly so, that the police and the
military take specific measures for the protection of petitioners' right or threatened right to liberty
or security. The protection came in the form of directives specifically to Gen. Esperon and P/Dir.
Gen. Razon, requiring each of them (1) to ensure that the investigations already commenced by
the AFP and PNP units, respectively, under them on the complaints of Lourdes and her
daughters are being pursued with urgency to bring to justice the perpetrators of the acts
complained of; and (2) to submit to the CA, copy furnished the petitioners, a regular report on
the progress and status of the investigations. The directives obviously go to Gen. Esperon in his
capacity as head of the AFP and, in a sense, chief guarantor of order and security in the
country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty pertaining to the
PNP, a crime-preventing, investigatory, and arresting institution.

As the CA, however, formulated its directives, no definitive time frame was set in its decision for
the completion of the investigation and the reportorial requirements. It also failed to consider
Gen. Esperon and P/Dir. Gen. Razon's imminent compulsory retirement from the military and
police services, respectively. Accordingly, the CA directives, as hereinafter redefined and
amplified to fully enforce the amparo remedies, are hereby given to, and shall be directly
enforceable against, whoever sits as the commanding general of the AFP and the PNP.

At this stage, two postulates and their implications need highlighting for a proper disposition of
this case.

First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the
same acts and incidents leading to the filing of the subject amparo petition has been instituted
with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the
existence of a prima facie case against the five (5) impleaded individuals suspected to be
actually involved in the detention of Lourdes have been set in motion. It must be pointed out,
though, that the filing[44] of the OMB complaint came before the effectivity of the Amparo Rule on
October 24, 2007.

Second, Sec. 22[45] of the Amparo Rule proscribes the filing of an amparo petition should a
criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23, [46] on the
other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the
petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless
govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present
petition ought to have been dismissed at the outset. But as things stand, the outright dismissal
of the petition by force of that section is no longer technically feasible in light of the interplay of
the following factual mix: (1) the Court has, pursuant to Sec. 6 [47] of the Rule, already issued ex
parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but
not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as
respondents only those believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and
their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and
the amparo petition are so linked as to call for the consolidation of both proceedings to obviate
the mischief inherent in a multiplicity-of-suits situation.

Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an
inexpensive and effective tool to protect certain rights violated or threatened to be violated, the
Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to
fittingly address the situation obtaining under the premises. [48] Towards this end, two things are
at once indicated: (1) the consolidation of the probe and fact-finding aspects of the instant
petition with the investigation of the criminal complaint before the OMB; and (2) the
incorporation in the same criminal complaint of the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB should be furnished copies of the investigation
reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E.
Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any,
adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should
be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is
to be fully effective.

WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision:

(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of
amparo;

(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and
P/Dir. Gen. Avelino Razon, insofar as it tended, under the command responsibility principle, to
attach accountability and responsibility to them, as then AFP Chief of Staff and then PNP Chief,
for the alleged enforced disappearance of Lourdes and the ensuing harassments allegedly
committed against petitioners. The dismissal of the petition with respect to the OMB is also
affirmed for failure of the petition to allege ultimate facts as to make out a case against that body
for the enforced disappearance of Lourdes and the threats and harassment that followed; and

(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director-
General of the PNP, or his successor, to ensure that the investigations already commenced by
their respective units on the alleged abduction of Lourdes Rubrico and the alleged harassments
and threats she and her daughters were made to endure are pursued with extraordinary
diligence as required by Sec. 17[49] of the Amparo Rule. They shall order their subordinate
officials, in particular, to do the following:

(a) Determine based on records, past and present, the identities and locations of respondents
Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma,
and one Jonathan; and submit certifications of this determination to the OMB with copy
furnished to petitioners, the CA, and this Court;

(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the
Toyota Revo vehicle with Plate No. XRR 428; and

(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of
respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a
certain Jonathan to aid in positively identifying and locating them.

The investigations shall be completed not later than six (6) months from receipt of this
Decision; and within thirty (30) days after completion of the investigations, the Chief of Staff of
the AFP and the Director-General of the PNP shall submit a full report of the results of the
investigations to the Court, the CA, the OMB, and petitioners.

This case is accordingly referred back to the CA for the purpose of monitoring the investigations
and the actions of the AFP and the PNP.

Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31,
2008 of the CA.

SO ORDERED.

PROF. RANDOLF S. DAVID VS. GLORIA MACAPAGAL-ARROYO (G.R. NO. 171396, May
03, 2006)

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. [1]
Superior strength - the use of force - cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government
and in favor of the poor, the oppressed, the marginalized, the dispossessed and the
weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity."[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-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]

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines
and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists - the historical enemies of the democratic
Philippine State - who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State - by obstructing governance
including hindering the growth of the economy and sabotaging the people's confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State -
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people's confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief
of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People's Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.[4] They considered the aim to
oust or assassinate the President and take-over the reigns of government as a clear and
present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation
from petitioners' counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents' task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of
the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show 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." [5]

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People's Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to
his arrest, Lt. San Juan announced through DZRH that the "Magdalo's D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino's brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group's plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army's elite Scout Ranger. Lim said "it was all systems
go for the planned movement against Arroyo."[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo
protests to be held on February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the chain of command to
join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable
that the President's ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three
(3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.[10]

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."[11]

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. [13]

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded
the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid
Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the standards - and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 - we will recommend a
'takeover.'" National Telecommunications' Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.[14]

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran's lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during
a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that
(1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or
"prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom
of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power
to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to redress their
grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections
1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII
of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming that
PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, 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 Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.

In respondents' Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people's right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge
A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a "self-starting capacity."[23]
Courts may exercise such power only when the following requisites are present: first, there must
be an actual case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest opportunity; and
fourth, the decision of the constitutional question must be necessary to the determination of the
case itself.[24]

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo's
issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,[26] so that a declaration thereon would be of no practical use or value.[27]
Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the
vital issues that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."[30]

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;[31] second, the exceptional character of the situation and
the paramount public interest is involved;[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;[33] and fourth, the
case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public's
interest, involving as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the extent of the
protection given by constitutional guarantees.[35] And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary.[36] However,
they failed to take into account the Chief Justice's very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.

II-Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative
to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question." [37] In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must
be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."[38] Succinctly put, the plaintiff's standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:[40] "In matter of mere public right, however...the people are
the real parties...It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan[41] held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled
that for a private individual to invoke the judicial power to determine the validity of an executive
or legislative action, he must show that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general interest common to all members of
the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,[44] it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,[45] Manila Race Horse Trainers' Association v. De la Fuente,[46] Pascual v. Secretary of
Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,[49] where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec,[50] this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[51]

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress' taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a people's
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue
as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a
concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the

Court reiterated the "direct injury" test with respect to concerned citizens' cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP in
Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60]
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Tañada v. Tuvera,[64] that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of
PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held
that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general
an interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition
as there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she
is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,[67] may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people [68] but he
may be removed from office only in the mode provided by law and that is by impeachment. [69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President's exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72] Aquino,
Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line
defining "political questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government." [75]
Barcelon and Montenegro were in unison in declaring that the authority to decide whether an
exigency has arisen belongs to the President and his decision is final and conclusive on
the courts. Lansang took the opposite view. There, the members of the Court were unanimous
in the conviction that the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic
Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn, constitutionally supreme."[76] In
1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was
almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a
political or justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted
Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God."[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar to Lansang. While the Court considered the
President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion." This ruling is mainly a result of the Court's reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual controversies involving rights
which are legally demandable and enforceable," but also "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82]

As to how the Court may inquire into the President's exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President's
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down
is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the President's decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo's exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners presented nothing to
refute such events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."[84] But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to
the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis,
the ruin of the State...

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people's first intention is that the State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship."[88]

Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it.[89]
Machiavelli - in contrast to Locke, Rosseau and Mill - sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw "no reason why absolutism should not be used as
a means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life."[92] He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power."[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short...Dictatorship should always be strictly
legitimate in character...Final authority to determine the need for dictatorship in any
given case must never rest with the dictator himself..."[94] and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] "It is a problem of
concentrating power - in a government where power has consciously been divided - to cope
with... situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."[96] Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means - i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be exercised under
a strict time limitation; and last, the objective of emergency action must be the defense of
the constitutional order."[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by emergency. [98]
Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional
dictatorship," thus:
1) No general regime 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 order...

2) ...the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator...

3) No government should initiate a constitutional dictatorship without making specific provisions

for its termination...

4) ...all uses of emergency powers and all readjustments in the organization of the government
should be effected in pursuit of constitutional or legal requirements...

5) ... no dictatorial institution should be adopted, no right invaded, no regular procedure altered
any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect...

7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should
never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it
was instituted...

11) ...the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship...[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon
procedural limitations, and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the meaning of constitutionalism, he
insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of government but,
but rather in the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists - from
Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and,
eventually, to McIlwain's "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson's "balanced power structure." [102]
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic integrity
and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim
that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a "chilling effect" to the citizens.

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

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,[104] the US Supreme Court held that "we have not
recognized an "overbreadth' doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,[105] it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held void on
its face and when 'such summary action' is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from 'pure
speech' toward conduct and that conduct -even if expressive - falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"[107] The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law's "very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even attempt to show whether this
situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application."[110] It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in
free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed to establish that
men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII ... do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power

The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office's vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the President's calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of
our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President's authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo's authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State's extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."[113]

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the keeping of the President
for the purpose of enabling him to secure the people from harm and to restore order so that they
can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo's calling-out power for the armed forces to assist
her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, [115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of
the Philippines, he will, among others, "execute its laws." [116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,[117] including the Philippine National Police[118] under the
Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They
assail the clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

Petitioners' contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted[120] from Former President Marcos' Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial
law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. --- Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

Sec. 3. Administrative Orders. --- Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.

Sec. 4. Proclamations. --- Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.
Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. --- Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or
special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo's exercise of legislative power by
issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot
call the military to enforce or implement certain laws, such as customs laws, laws governing
family and property relations, laws on obligations and contracts and the like. She can only order
the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII
of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or business affected with public
interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval was
President Marcos' Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over "the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government
of its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President's authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court,
Section 18, Article VII grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the absence of a Congressional
enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each other. [123]
Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate
to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate
it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube
Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President's military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ."[126]
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a limited
view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by
a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b)
natural disaster,[129] and c) national security.[130]

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.[131] This is evident in the Records of the Constitutional
Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears
in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or
natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned
public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another department -
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances "the
various branches, executive, legislative, and judicial,' given the ability to act, are called upon "to
perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused[135] and may afford an opportunity for abuse in the manner of
application.[136] The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the President's calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens' constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are "acts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become
one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions - or threats of the use of force as the
most recent by the United States against Iraq - consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country's terrorist is another country's
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts - the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to
reach a consensus on the basic issue of definition. The organization has intensified its efforts
recently, but has been unable to bridge the gap between those who associate "terrorism" with
any violent act by non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) - which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims - the Kashmiri resistance groups - who are terrorists in the perception of India,
liberation fighters in that of Pakistan - the earlier Contras in Nicaragua - freedom fighters for the
United States, terrorists for the Socialist camp - or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way - because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is
in the position of an occupying power or in that of a rival, or adversary, of an occupying power in
a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in
each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in
regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital
issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states - and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! - has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States. [141]
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized." [142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017;
third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of
Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and

x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release
on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally. [147]

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, 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
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers' conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly
cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the auspices under which
the meeting was held but as to its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution protects.
If the persons assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has
a right to prevent."[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the
citizens' right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.[150] The first time
they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When
a person's right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners' narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune's offices were searched without warrant;
second, the police operatives seized several materials for publication; third, the search was
conducted at about 1:00 o' clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a "strong
presence,' to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards -and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 - we will recommend a 'takeover.'" National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made
in the presence of the lawful occupant thereof or any member of his family or in the absence
of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.

Not only that, the search violated petitioners' freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy.
It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the
Tribune's offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to
get the clippings. Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.[155]

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o'clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.
SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature to say this,
we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President
for, as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens' rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 - a supervening event - would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained
by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017's extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting
as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard - that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed deleted from the
said G.O. While "terrorism" has been denounced generally in media, no law has been enacted
to guide the military, and eventually the courts, to determine the limits of the AFP's authority in
carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that
(1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal
of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition
of standards on media or any prior restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action and/or
relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly restrain our people's
liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

JOSEPH E. ESTRADA VS. ANIANO DESIERTO (G.R. Nos. 146710-15, March 02, 2001)

DECISION

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she
is the President. The warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties' dispute. While the significant issues are
many, the jugular issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and
the respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governos, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air
and accused the petitioner, his family and friends of receiving millions of pesos from jueteng
lords.[1]

The exposé immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in
jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to
the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation.[2]

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposé of Governor
Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese
of Manila, asking petitioner to step down from the presidency as he had lost the moral authority
to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the
Philippines joined the cry for the resignation of the petitioner.[4] Four days later, or on October
17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme
self-sacrifice" of resignation.[5] Former President Fidel Ramos also joined the chorus. Early on,
or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare
and Services[6] and later asked for petitioner's resignation.[7] However, petitioner strenuously
held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. [8] On November
2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry. [9] On
November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with
some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino. [10]

The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115 representatives,
or more than 1/3 of all the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella. [12]
On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-
one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide,
Jr., presiding.[13]

The political temperature rose despite the cold December. On December 7, the impeachment
trial started.[14] the battle royale was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte
and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House
Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial
was covered by live TV and during its course enjoyed the highest viewing rating. Its high and
low points were the constant conversational piece of the chattering classes. The dramatic point
of the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he
affixed the signature "Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.[15]

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the
witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr.
Dante Tan who was facing charges of insider trading.[16] Then came the fateful day of January
16, when by a vote of 11-10[17] the senator-judges ruled against the opening of the second
envelop which allegedly contained evidence showing that petitioner held P3.3 billion in a secret
bank account under the name "Jose Velarde." The public and private prosecutors walked out in
protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.[18] The ruling
made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the
metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.[19] Senator Raul Roco quickly moved for the indefinite postponement of
the impeachment proceedings until the House of Representatives shall have resolved the issue
of resignation of the public prosecutors. Chief Justice Davide granted the motion.[20]

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's
solidarity in demanding petitioner's resignation. Students and teachers walked out of their
classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the
EDSA Shrine, all masters of the physics of persuasion, attracted more and more people. [21]

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. [22] In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce that we are withdrawing our support
to this government."[23] A little later, PNP Chief, Director General Panfilo Lacson and the major
service commanders gave a similar stunning announcement.[24] Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts. [25]
Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the
tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelop.[26] There was no turning back the tide. The tide had
become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for
the peaceful and orderly transfer of power started at Malacañang's Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. [27] Outside
the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters
which resulted in stone-throwing and caused minor injuries. The negotiations consumed all
morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacañang
Palace.[29] He issued the following press statement:[30]
"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the same service of our
country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:[31]
"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20. [32]
Another copy was transmitted to Senate President Pimentel on the same day although it was
received only at 9:00 p.m.[33]

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged
the powers and duties of the Presidency. On the same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC - In re: Request of Vice President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the Philippines before the Chief Justice - Acting
on the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as President of
the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request was treated as an administrative matter, the court
Resolved unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.

This resolution is without prejudice to the disposition of any justiciable case that maybe filed by
a proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.[34] Recognition of respondent Arroyo's government by foreign governments swiftly
followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.[35] US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.[36]

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.[37] The House then passed Resolution No. 175 "expressing the full support of
the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo,
President of the Philippines."[38] It also approved Resolution No. 176 "expressing the support of
the House of Representatives to the assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nation's goals
under the Constitution."[39]

On January 26, the respondent signed into law the Solid Waste Management Act. [40] A few days
later, she also signed into law the Political Advertising Ban and Fair Election Practices Act.[41]

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmeña voted "yes" with reservations, citing as reason therefore the pending
challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The House of
Representatives also approved Senator Guingona's nomination in Resolution No. 178. [45]
Senator Guingona took his oath as Vice President two (2) days later.[46]

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is
functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the
Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post. [48]

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001. [49] In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in
the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes:

58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the E's or
very poor class.[50]

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of Conduct for government
Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation,
Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28,
2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of
his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his
office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on
GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February 2001." On February
13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that they have "compromised themselves by
indicating that they have thrown their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to file their memoranda and
two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring
the office of the President vacant and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the merits
of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against petitioner
Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will
make the cases at bar moot and academic."[53]
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

 I
Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.

Whether or not the cases

at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress
that respondent Arroyo ascended the presidency through people power; that she has already
taken her oath as the 14th President of the Republic; that she has exercised the powers of the
presidency and that she has been recognized by foreign governments. They submit that these
realities on ground constitute the political thicket which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift
the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in the
mills constitutional law.[55] In the United States, the most authoritative guidelines to determine
whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of
Baker v. Carr,[56] viz:
"x x x Prominent on the surface on any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretions; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question. Unless
one of these formulations is inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political question's presence. The doctrine of which we treat
is one of `political questions', not of `political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question.[57] Our leading case is
Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion, held
that political questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure." To a
great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of government.[59] Heretofore, the judiciary has focused
on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. [60]
With the new provision, however, courts are given a greater prerogative to determine what it can
do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new provision did not just grant
the Court power of doing nothing. In sync and symmetry with this intent are other provisions
of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or
the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading of the cited cases will show that they
are inapplicable. In the cited cases, we held that the government of former President Aquino
was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution[63] declared that the Aquino government was installed through a
direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." It is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution.[64] In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging
the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I presented
political question; EDSA II involves legal questions. A brief discourse on freedom of speech
and of the freedom of assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights
was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal,
raised the clarion call for the recognition of freedom of the press of the Filipinos and included it
as among "the reforms sine quibus non."[65] The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived
(1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the instruction to the Second Philippine
Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of grievances." The guaranty was
carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the
Act of Congress of August 29, 1966.[66]

Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68]
Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress of
grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus."[69] In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress of a society can
take place without destroying the society."[70] In Hague v. Committee for Industrial
Organization,[71] this function of free speech and assembly was echoed in the amicus curiae
brief filed by the Bill of Rights Committee of the American Bar Association which emphasized
that "the basis of the right of assembly is the substitution of the expression of opinion and belief
by talk rather than force; and this means talk for all and by all."[72] In the relatively recent
case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that "... it should be clear
even to those with intellectual deficits that when the sovereign people assemble to petition for
redress of grievances, all should listen. For in a democracy, it is the people who count;
those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues
for resolution require the proper interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II,[74] and section 8[75]of Article VII, and the allocation of governmental
powers under section 11[76] of Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct calibration of the right of petitioner
against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,[77] the doctrine
has been laid down that " it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's invocation of the doctrine of
political is but a foray in the dark.

II

Whether or not the petitioner

resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or
that he suffers from a permanent disability. Hence, he submits that the office of the President
was not vacant when respondent Arroyo took her oath as president.

The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation of both the President and Vice
President, the President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then acts as President until President or Vice President shall have been
elected and qualified.

x x x."
The issue then is whether the petitioner resigned as President or should be considered resigned
as of January 20, 2001 when respondent took her oath as the 14 th President of the Republic.
Resignation is not a high level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent must be coupled by acts
of relinquishment.[78] The validity of a resignation is not governed by any formal requirement as
to form. It can be oral. It can be written. It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect.

In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation
before he evacuated Malacañang Palace in the Afternoon of January 20, 2001 after the oath-
taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his acts and omissions before, during and after January 20, 2001 or by the
totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to
follow the succession of events after the exposé of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3
of the House of Representatives. Soon, petitioner's powerful political allies began deserting him.
Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and Former
Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people
crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind
of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the
diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara
Diary reveals that in morning of January 19, petitioner's loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it.
Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office
at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)"[80] An hour later or at 2:30, p.m., the petitioner
decided to call for a snap presidential election and stressed he would not be a candidate.
The proposal for a snap election for president in May where he would not be a candidate
is an indicium that petitioner had intended to give up the presidency even at that time. At
3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of
the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner
and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner
weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or resignation."[81] Petitioner did nor
disagree but listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m.,
Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit.
He gave the proposal a sweetener by saying that petitioner would allowed to go abroad with
enough funds to support him and his family.[83] Significantly, the petitioner expressed no
objection to the suggestion for a graceful and dignified exit but said he would never
leave the country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace." [85] This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was
already concerned with the five-day grace period he could stay in the palace. It was a
matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to
ensure a) peaceful and orderly transfer of power."[86] There was no defiance to the request.
Secretary Angara readily agreed. Again, we note that at this stage, the problem was already
about a peaceful and orderly transfer of power. The resignation of the petitioner was
implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20
a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1)
the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety
of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate
the name of the petitioner.[87] Again, we note that the resignation of petitioner was not a
disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the
Angara Diary shows the reaction of the petitioner, viz:
"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this - it's
too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."[88]

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said "x x x Ayoko na masyado nang masakit." " Ayoko na" are words of
resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:
 "Opposition's deal
7:30 a.m. - Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona.
For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

`1. The President shall sign a resignation document within the day, 20 January 2001, that
will be effective on Wednesday, 24 January 2001, on which day the Vice President will
assume the Presidency of the Republic of the Philippines.

2. Beginning today, 20 January 2001, the transition process for the assumption of the
new administration shall commence, and persons designated by the Vice president to
various positions and offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police effective immediately.

4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the
security of the president and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with
the rules of the Senate, pursuant to the request to the Senate President.'

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:

`1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.

2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guaranteed freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (`AFP') through
the Chief of Staff, as approved by the national military and police authorities - Vice President
(Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court
will authorize the opening of the second envelope in the impeachment trial as proof
that the subject savings account does not belong to President Estrada.

4. During the five-day transition period between 20 January 2001 and 24 January 2001
(the "Transition Period"), the incoming Cabinet members shall receive an appropriate
briefing from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (`PNP') shall function
under Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in `Annex A' heretofore attached to this agreement.'" [89]
The second round of negotiation cements the reading that the petitioner has resigned. It
will be noted that during this second round of negotiation, the resignation of the
petitioner was again treated as a given fact. The only unsettled points at that time were
the measures to be undertaken by the parties during and after the transition period.

According to Secretary Angara, the draft agreement which was premised on the resignation of
the petitioner was further refined. It was then signed by their side and he was ready to fax it
to General Reyes and Senator Pimentel to await the signature of the United Opposition.
However, the signing by the party of the respondent Arroyo was aborted by her oath-
taking. The Angara Diary narrates the fateful events, viz:[90]
"x x x

11:00 a.m. - Between General Reyes and myself, there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general clearing all these points with a group he is
with. I hear voices in the background.

Agreement

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.

xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall commence
on 20 January 2001, wherein persons designated by the Vice President to various
government positions shall start orientation activities with incumbent officials.

3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority - Vice President.
4. The AFP and the Philippine National Police (`PNP') shall function under the Vice
President as national military and police authorities.

5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex `B'
heretofore attached to this agreement.

xxx

11:20 a.m. - I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United Opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

`Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: `Wala na, sir (It's over, sir).'

I asked him: `Di yung transition period, moot and academic na?'

And General Reyes answer: `Oo nga, i-delete na natin, sir (Yes, we're deleting that part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and
General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provision on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The president is too stunned for words.

Final meal

12 noon - Gloria takes her oath as President of the Republic of the Philippines.

12:20 p.m. - The PSG distributes firearms to some people inside the compound.

The President is having his final meal at the Presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the police and military have already withdrawn
their support for the President.
1 p.m. - The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronie Puno mentions that the President needs to release a final statement
before leaving Malacañang.

The statement reads: `At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and constitutionality of
her proclamation as president, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to me for service to our people. I
will not shrik from any future challenges that may come ahead in the same service of our
country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!'"
It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged
the oath-taking of the respondent as President of the Republic albeit with the reservation
about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for
the sake of peace and in order to begin the healing process of our nation. He did not say he
was leaving the Palace due to any kind of inability and that he was going to re-assume
the presidency as soon as the disability disappears; (3) he expressed his gratitude to the
people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead in the same service of our country. Petitioner's
reference is to a future challenge after occupying the office of the president which he has
given up; and (5) he called on his supporters to join him in the promotion of a constructive
national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation
and solidarity could not be attained if he did not give up the presidency. The press release
was petitioner's valedictory, his final act of farewell. His presidency is now in the past tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave of
absence due to his inability to govern. In support of this thesis, the letter dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:
"Sir

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice President shall be the Acting President.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its
preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal
value, was never referred to by the petitioner during the week-long crisis. To be sure,
there was not the slightest hint of its existence when he issued his final press release. It was all
too easy for him to tell the Filipino people in his press release that he was temporarily unable to
govern and that he was leaving the reins of government to respondent Arroyo for the time being.
Under any circumstance, however, the mysterious letter cannot negate the resignation of
the petitioner. If it was prepared before the press release of the petitioner clearly showing his
resignation from the presidency, then the resignation must prevail as a later act. If, however, it
was prepared after the press release, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his repudiation by the people.
There is another reason why this Court cannot give any legal significance to petitioner's letter
and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that
he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminal
or administrative, or pending a prosecution against him, for any offense under this Act or under
the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when it
was submitted to the Senate, did not contain a provision similar to section 12 of the law as it
now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the
bill, "reserved to propose during the period of amendments the inclusion of a provision to the
effect that no public official who is under prosecution for any act of graft or corruption, or is
under administrative investigation, shall be allowed to voluntarily resign or retire." [92] During the
period of amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office -- No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official from office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency."[93]
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the President's immunity should extend
even after his tenure.

Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition against
the resignation or retirement of a public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a public official as a protective shield
to stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render service for that would
be a violation of his constitutional right.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such resignation or retirement will
not cause the dismissal of the criminal or administrative proceedings against him. He cannot
use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him
before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA
No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose
investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that,

under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of
an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.

III

Whether or not the petitioner

is only temporarily unable to
act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on
the same day to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that "Congress has the ultimate authority under the Constitution to determine
whether the President is incapable of performing his functions in the manner provided for in
section 11 of Article VII."[95] This contention is the centerpiece of petitioner's stance that he is
a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of
the House of Representatives his written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President
is unable to discharge the powers and duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of
the House of Representatives his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the Senate and to the Speaker of the House
of Representatives their written declaration that the President is unable to discharge the powers
and duties of his office, the Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and
without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session
within twelve days after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the powers and duties of
his office, the Vice-President shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;

(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;

(3) Despite receipt of the letter, the House of Representative passed on January 24, 2001
House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House Resolution No.
176[97]which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO
THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the
Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify
the nation, to eliminate fractious tension, to heal social and political wounds, and to be an
instrument of national reconciliation and solidarity as it is a direct representative of the various
segments of the whole nation;

WHEREAS, without surrendering its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive
partner in nation-building, the national interest demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to
extend its congratulations and to express its support for her administration as a partner in the
attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No. 178[98]
which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION
OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the
Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as Delegate
to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolute cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome
the nation's challenges."[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION
OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the
Phillippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence, and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice. Senator of the land - which qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101]
which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is
functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court of Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the `second envelope'
be transferred to the Archives of the Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only
upon written approval of the Senate President.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of a
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr."

(6) Both houses of Congress started sending bills to be signed into law by respondent
Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his inability
to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada is no longer temporary. Congress has
clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as President of the Philippines. Following Tañada v.
Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue "in
regard to which full discretionary authority has been delegated to the Legislative x x x branch of
the government." Or to use the language in Baker vs. Carr,[103] there is a "textually
demonstrable constitutional commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to discharge the powers and duties of the
presidency. The question is political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue which cannot be decided by this Court without
transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim
that he is a President on leave on the ground that he is merely unable to govern temporarily.
That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de
jure President made by a co-equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity

from suit. Assuming he enjoys immunity, the
extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history on executive immunity will
be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case
law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent
Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the
Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to
China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
"The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under
the guise of the execution of the law, could walk defiantly abroad, destroying rights of person
and of property, wholly free from interference of courts or legislatures. This does not mean,
either, that a person injured by the executive authority by an act unjustifiable under the law has
no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-
General, like the judges of the courts and the members of the Legislature, may not be
personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or property rights have been
invaded, even by the highest authority of the state. The thing which the judiciary can not do is
mulct the Governor-General personally in damages which result from the performance of his
official duty, any more that it can a member of the Philippine Commission or the Philippine
Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched the
liability of judges and drew an analogy between such liability and that of the Governor-General,
that the latter is liable when he acts in a case so plainly outside of his power and authority that
he can not be said to have exercise discretion in determining whether or not he had the right to
act. What is held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he actually
used discretion and judgment, that is, the judicial faculty, in determining whether he had
authority to act or not. In other words, he is entitled to protection in determining the question of
his authority. If he decide wrongly, he is still protected provided the question of his authority was
one over which two men, reasonably qualified for that position, might honestly differ; but he is
not protected if the lack of authority to act is so plain that two such men could not honestly differ
over its determination. In such case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: "x x x. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to
unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself."[105]

Our 1935 Constitution took effect but it did not contain any specific provision on executive
immunity. Then came the tumult of the martial law years under the late President Ferdinand E.
Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall
lie for official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII
of this Constitution."
In his second Vicente G. Sinco Professional Chair Lecture entitled, " Presidential Immunity And
All The King's Men: The Law Of Privilege As A Defense To Actions For Damages," [106]
petitioner's learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin,
brightlined the modifications effected by this constitutional amendment on the existing law on
executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended it to shield the President not only from civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it
would cover even acts of the President outside the scope of official duties. And third, we
broadened its coverage so as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of the President. It can be
said that at that point most of us were suffering from AIDS (or absolute immunity defense
syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian
concept of executive immunity in the 1973 Constitution. The move was led by then Member
of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the principle that a public office is
a public trust. He denounced the immunity as a return to the anachronism "the king can do no
wrong."[107] The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973 Constitution. The following explanation
was given by delegate J. Bernas, viz:[108]
"Mr. Suarez. Thank you.

The last question is with reference to the committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well
in striking out this second sentence, at the very least, of the original provision on immunity from
suit under the 1973 Constitution. But would the Committee members not agree to a restoration
of at least the first sentence that the President shall be immune from suit during his tenure,
considering that if we do not provide him that kind of an immunity, he might be spending all his
time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I thank the Commissioner for the clarification."

We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."[109] Since the Impeachment Court is now functus officio,
it is untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:[110]
"x x x

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgment of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."
This is in accord with our ruling in In re: Saturnino Bermudez[111]that "incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada
cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman
that he be convicted in the impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the allege mantle of immunity
of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the
President to commit criminal acts and wrapping him with post-tenure immunity from liability. It
will be anomalous to hold that immunity is an inoculation from liability for unlawful acts
and omissions. The rule is that unlawful acts of public officials are not acts of the State and the
officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal a
judicial disinclination to expand the privilege especially when it impedes the search for
truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,[115] US President
Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct justice and other offenses
which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among
others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial proceedings.
The claim was rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,[116] the US Supreme Court further held that the immunity of the President from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to
reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is
that a public office is a public trust.[118] It declared as a state policy that "(t)he State shall
maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."[119] It ordained that "(p)ublic officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives."[120] It set the rule that "(t)he
right of the State to recover properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by prescription, laches or
estoppel."[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of
the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its
own, or on complaint by any person, any act or omission of any public official, employee, office
or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient." [123]
The Office of the Ombudsman was also given fiscal autonomy.[124] These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president
enjoys immunity from suit for criminal acts committed during his incumbency.

V
 Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting
the investigation of the cases filed against him due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the
criminal cases in violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the
rain of unrestrained publicity during the investigation and trial of high profile cases.[125] The
British approach the problem with the presumption that publicity will prejudice a jury. Thus,
English courts readily stay and stop criminal trials when the right of an accused to fair trial
suffers a threat.[126] The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an accused to a fair trial.
They have developed different strains of tests to resolve this issue, i.e., substantial probability of
irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the
trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee, Jr.,[128]
later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down the
doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we now rule that
the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances an accused's right to a fair trial for, as well pointed out, a responsible press
has always been regarded as the handmaiden of effective judicial administration, especially in
the criminal field x x x. The press does not simply publish information about trials but guards
against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge and impaired his impartiality.
For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-
court publicity of sensational criminal cases. The state of the art of our communication system
brings news as they happen straight to our breakfast tables and right to our bedrooms. These
news form part of our everyday menu of the facts and fictions of life. For another, our idea of a
fair and impartial judge is not that of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected from publicity lest they lose their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al.
v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that
the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable if
change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden."
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.[130] and its companion cases. viz.:
"Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity
of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today. Commentators still bombard the
public with views not too many of which are sober and sublime. Indeed, even the principal
actors in the case - the NBI, the respondents, their lawyers and their sympathizers - have
participated in this media blitz. The possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to the press and public. Inn the
seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
`x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that the time this Nation's organic laws were adopted, criminal trials
both here and in England had long been presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the significant
community therapeutic value of public trials was recognized: when a shocking crime occurs, a
community reaction of outrage and public protest often follows, and thereafter the open
processes of justice serve an important prophylactic purpose, providing an outlet for community
concern, hostility, and emotion. To work effectively, it is important that society's criminal process
`satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct
11, which can best be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it
must be concluded that a presumption of openness inheres in the very nature of a criminal trial
under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing freedoms such as those of speech
and press, the First Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom doors which had long
been open to the public at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the people
generally - and representatives of the media - have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to
attend such trials, which people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.'
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be
allegation and proof that the judges have been unduly influenced, not simply that they might
be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove
that the tone and content of the publicity that attended the investigation of petitioners fatally
infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is
a factor to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence properly adduced by
the parties. The length of time the investigation was conducted despite its summary nature and
the generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any member of
the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity."
(emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof. [131] He
needs to show more weighty social science evidence to successfully prove the impaired
capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner
are still undergoing preliminary investigation by a special panel of prosecutors in the office of
the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that
the minds of the members of this special panel have already been infected by bias because of
the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out
with its findings and the Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the
barrage of slanted news reports, and he has buckled to the threats and pressures directed at
him by the mobs."[132] News reports have also been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the petitioner[133]and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of
the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice
and the presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules
of Criminal Procedure, give investigating prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors. [134] They can be
reversed but they can not be compelled to change their recommendations nor can they be
compelled to prosecute cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the
respondent Ombudsman resolves to file the cases against the petitioner and the latter believes
that the finding of probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the "most fundamental of all
freedoms."[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute.
His is the obligation to insure that the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the
impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the
power of number for in a democracy, the dogmatism of the majority is not and should never be
the definition of the rule of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's
progress from the cave to civilization. Let us not throw away that key just to pander to some
people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.