Case #24 David vs. Arroyo, G.R. No.

171396, 3 May 2006

Facts:

• On February 24, 2006, as the country celebrated the 20th Anniversary of EDSA People Power I, President Gloria
Macapagal-Arroyo issued Presiden�al Proclama�on No. 1017 (PP 1017) declaring a state of na�onal emergency.
o On the same day, she also issued General Order No. 5 (GO 5), implemen�ng the proclama�on. A week
later, a�er these seven Pe��ons had been filed before the Supreme Court, she li�ed PP1017 and
declared that the na�onal emergency had ceased to exist.
• The factual bases of PP 1017 and GO 5, according to respondents, comprised a conspiracy to unseat or
assassinate President Arroyo. It was allegedly hatched by some military officers, le�ist insurgents, and members
of the poli�cal opposi�on.
• Respondents jus�fied their moves by saying that the aim to oust or assassinate the President and to take over
the reigns of government had posed a clear and present danger.
• Following the issuance of PP 1017 and GO 5, the Office of the President announced the cancella�on of all
programs and ac�vi�es related to the 20th anniversary celebra�on of EDSA People Power I and revoked the
permits to hold rallies issued earlier by local governments.
o Presiden�al Chief of Staff Michael Defensor further announced that “warrantless arrests and take-over
of facili�es, including media, can already be implemented.”
• Nevertheless, members of Kilusang Mayo Uno (KMU) and the Na�onal Federa�on of Labor Unions-Kilusang
Mayo Uno (NAFLU-KMU) marched from various parts of Metro Manila towards the EDSA shrine in Mandaluyong.
o Several groups of protesters at various sites were violently dispersed by an�-riot police.
 Arrested without any warrant were Pe��oner Randolf S. David, a University of the Philippines
professor and newspaper columnist; and Ronald Llamas, president of party-list Akba
• Early in the morning on February 25, 2006, on the basis of PP 1017 and GO 5, opera�ves of the PNP Criminal
Inves�ga�on and Detec�on Group (CIDG) raided the Daily Tribune offices in Manila and confiscated news stories,
documents, pictures, and mock-ups of the Saturday issue.
• Police officers were sta�oned inside and outside the offices of the newspaper, as well as the premises of another
pro-opposi�on paper, Malaya; and its sister publica�on, Abante.

ISSUE: Whether or not Presiden�al Proclama�on No. 1017 is uncons�tu�onal?

RULING:

• No. PP 1017 is cons�tu�onal insofar as it cons�tutes a call by the President for the AFP to prevent or suppress
lawless violence whenever becomes necessary as prescribe under Sec�on 18, Ar�cle VII of the Cons�tu�on.
• However, the SC ruled that under Sec�on 17, Ar�cle XII of the Cons�tu�on, the President, in the absence of
legisla�ve legisla�on, cannot take over privately-owned public u�lity and private business affected with public
interest.
• Therefore, the PP No. 1017 is only partly uncons�tu�onal.
 Republic of the Philippines
SUPREME COURT
Ma nila

G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, J R., J OEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
F.C. BOLASTIG, Petitioners ,
vs .
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR
GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Res pondents .

x————————————-x

G.R. No. 171409 May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners ,

vs .
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Res pondents .

x————————————-x

G.R. No. 171485 May 3, 2006

FRANCIS J OSEPH G. ESCUDERO, J OSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO,

MARIO J . AGUJ A, SATUR C. OCAMPO, MUJ IV S. HATAMAN, J UAN EDGARDO ANGARA, TEOFISTO
DL. GUINGONA III, EMMANUEL J OSEL J . VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B.
MAGTUBO, J USTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
ANN P. ROSALES, J OSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN,
NERI J AVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners ,
vs .
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J . CRUZ, J R., SECRETARY, DND RONALDO
V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, Res pondents .

x————————————-x

G.R. No. 171483 May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY
GENERAL J OEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, J OSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, J R., AND ROQUE
M. TAN, Petitioners ,
vs .
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Res pondents .

x————————————-x

G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs .
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO,Res pondents .

G.R. No. 171489 May 3, 2006

J OSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, J OSE AMOR M. AMORADO,
ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J .B. J OVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioners ,
vs .
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY
AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF, Res pondents .

x————————————-x

G.R. No. 171424 May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs .
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF;
ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL
POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Res pondents .

DEC IS ION

SANDOVAL-GUTIERREZ, J .:

All powers need s om e res traint; pra ctical a djus tm ents rather tha n rigid form ula a re
neces s a ry.1 Superior s trength—the us e of force—ca nnot ma ke wrongs into rights . In this rega rd, the
courts s hould be vigila nt in s afegua rding the cons titutiona l rights of the citizens , s pecifica lly their
liberty.

Chief J us tice Artemio V. Pa nga niba n’s philos ophy of liberty is thus m os t releva nt. He s a id: “In cas es
involving liberty, the s cales of jus tice s hould weigh heavily agains t government and in favor of the
poor, the oppres s ed, the marginalized, the dis pos s es s ed and the weak.” La ws a nd a ctions tha t res trict
funda m enta l rights com e to the courts “with a hea vy pres um ption a gains t their cons titutiona l va lidity.”2

Thes e s even (7) cons olidated petitions for certiorari a nd prohibition a llege tha t in is s uing Pres idential
Procla m a tion No. 1017 (PP 1017) a nd Genera l Order No. 5 (G.O. No. 5), Pres ident Gloria Ma ca pa ga l-
Arroyo com m itted gra ve a bus e of dis cretion. Petitioners contend tha t res pondent officia ls of the
Governm ent, in their profes s ed efforts to defend a nd pres erve dem ocra tic ins titutions , a re a ctually
tra m pling upon the very freedom gua ra nteed a nd protected by the Cons titution. Hence, s uch is s ua nces
a re void for being uncons titutiona l.

Once a ga in, the Court is fa ced with a n a ge-old but pers is tently m odern problem . How does the
Cons titution of a free people combine the degree of liberty, without which, law becomes tyranny, with the
degree of law, without which, liberty becomes licens e?3

On Februa ry 24, 2006, a s the na tion celebra ted the 20th Annivers a ry of the Eds a People Power I,
Pres ident Arroyo is s ued PP 1017 decla ring a s ta te of na tiona l em ergency, thus :

NOW, THEREFORE, I, Gloria Ma ca pa ga l-Arroyo, Pres ident of the Republic of the Philippines a nd
Com m a nder-in-Chief of the Arm ed Forces of the Philippines , by virtue of the powers ves ted upon m e
by Section 18, Article 7 of the Philippine Cons titution which s ta tes tha t: “The Pres ident. . . whenever it
becom es neces s a ry, . . . m a y ca ll out (the) a rm ed forces to prevent or s uppres s . . .rebellion. . .,” a nd in
m y ca pa city a s their Com m a nder-in-Chief, do hereby command the Armed Forces of the Philippines ,
to maintain law and order throughout the Philippines , prevent or s uppres s all forms of lawles s
violence as well as any a ct of ins urrection or rebellion and to enforce obedience to all the laws and to
all decrees , orders and regulations promulgated by me pers onally or upon my direction; a nd as
provided in Section 17, Article 12 of the Cons titution do hereby declare a Sta te of National Emergency.

She cited the following fa cts a s ba s es :

WHEREAS, over thes e pa s t m onths , elem ents in the political oppos ition have cons pired with
authoritarians of the extreme Left repres ented by the NDF-CPP-NPA and the extreme Right,
repres ented by military adventuris ts —the his torical enemies of the democratic Philippine State—who
a re now in a ta ctical a llia nce a nd engaged in a concerted a nd s ys tema tic cons pira cy, over a broa d front,
to bring down the duly cons tituted Governm ent elected in Ma y 2004;

WHEREAS, thes e cons pira tors ha ve repea tedly tried to bring down the Pres ident;

WHEREAS, the claims of thes e elem e nts have been re ckles s ly magnified by certain s e gments of the
national media;

WHEREAS, this s eries of a ctions is hurting the Philippine State—by obs tructing governa nce
including hindering the growth of the economy and s abotaging the people’s confidence in government
and their faith in the future of this country;

WHEREAS, thes e actions are advers ely affecting the economy;

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

WHEREAS, Article 2, Section 4 of the our Cons titution m a kes the defens e a nd pres ervation of the
dem ocra tic ins titutions a nd the Sta te the prim a ry duty of Governm ent;

WHEREAS, the a ctivities above-des cribed, their cons equences , ra m ifica tions a nd colla teral effects
cons titute a clear and pres ent danger to the s a fety a nd the integrity of the Philippine Sta te a nd of the
Filipino people;

On the s a m e da y, the Pres ident is s ued G. O. No. 5 im plem enting PP 1017, thus :

WHEREAS, over thes e pa s t m onths , elem ents in the political oppos ition ha ve cons pired with
a uthorita ria ns of the extreme Left, repres ented by the NDF-CPP-NPA a nd the extreme Right,
repres ented by m ilita ry a dventuris ts – the his torica l enem ies of the dem ocra tic Philippine Sta te—a nd
who a re now in a ta ctica l a llia nce a nd enga ged in a concerted a nd s ys tem atic cons pira cy, over a broa d
front, to bring down the duly-cons tituted Governm ent elected in Ma y 2004;

WHEREAS, thes e cons pira tors ha ve repea tedly tried to bring down our republica n governm ent;

WHEREAS, the cla im s of thes e elem ents ha ve been reckles s ly m agnified by certa in s egm ents of the
na tiona l m edia ;

WHEREAS, thes e s eries of a ctions is hurting the Philippine State by obs tructing governa nce, including
hindering the growth of the econom y a nd s a botaging the people’s confidence in the governm ent a nd
their faith in the future of this country;

WHEREAS, thes e a ctions a re a dvers ely a ffecting the econom y;

WHEREAS, thes e a ctivities give tota lita ria n forces ; of both the extrem e Left a nd extrem e Right the
opening to intens ify their a vowed a ims to bring down the dem ocra tic Philippine Sta te;

WHEREAS, Article 2, Section 4 of our Cons titution m a kes the defens e a nd pres ervation of the
dem ocra tic ins titutions a nd the Sta te the prim a ry duty of Governm ent;
WHEREAS, the a ctivities above-des cribed, their cons equences , ra m ifica tions a nd colla teral effects
cons titute a clea r a nd pres ent da nger to the s a fety a nd the integrity of the Philippine Sta te a nd of the
Filipino people;

WHEREAS, Procla m a tion 1017 da te Februa ry 24, 2006 ha s been is s ued decla ring a State of National
Em ergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powe rs ves ted in m e under the
Cons titution a s Pres ident of the Republic of the Philippines , a nd Comm a nder-in-Chief of the Republic
of the Philippines , a nd purs ua nt to Procla m a tion No. 1017 da ted Februa ry 24, 2006, do hereby ca ll upon
the Arm ed Forces of the Philippines (AFP) a nd the Philippine National Police (PNP), to prevent a nd
s uppres s a cts of terroris m a nd la wles s violence in the country;

I hereby direct the Chief of Sta ff of the AFP a nd the Chief of the PNP, a s well a s the officers a nd m en
of the AFP a nd PNP, to immediately carry out the neces s ary and appropriate actions and meas ures to
s uppres s and prevent acts of terroris m and lawles s violence.

On Ma rch 3, 2006, exa ctly one week a fter the decla ration of a s tate of na tiona l em ergency a nd a fter a ll
thes e petitions ha d been filed, the Pres ident lifted PP 1017. She is s ued Procla ma tion No. 1021 which
rea ds :

WHEREAS, purs ua nt to Section 18, Article VII a nd Section 17, Article XII of the Cons titution,
Procla m a tion No. 1017 dated Februa ry 24, 2006, wa s is s ued decla ring a s tate of na tiona l em ergency;

WHEREAS, by virtue of General Order No.5 a nd No.6 da ted Februa ry 24, 2006, which were is s ued on
the ba s is of Procla m a tion No. 1017, the Arm ed Forces of the Philippines (AFP) a nd the Philippine
Na tional Police (PNP), were directed to m a inta in la w a nd order throughout the Philippines , prevent a nd
s uppres s all form of la wles s violence a s well a s a ny a ct of rebellion a nd to underta ke s uch a ction a s
m a y be neces s a ry;

WHEREAS, the AFP a nd PNP ha ve effectively prevented, s uppres s ed a nd quelled the a cts la wles s
violence a nd rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, Pres ident of the Republic of the Philippines , by
virtue of the powers ves ted in m e by la w, hereby declare that the s tate of national emergency has
ceas ed to exis t.

In their pres enta tion of the fa ctual ba s es of PP 1017 a nd G.O. No. 5, res pondents s ta ted that the
proxim ate ca us e behind the executive is s ua nces wa s the cons pira cy a m ong s om e milita ry officers ,
leftis t ins urgents of the New People’s Arm y (NPA), a nd s om e m embers of the political oppos ition in a
plot to uns ea t or a s s a s s ina te Pres ident Arroyo.4 They cons idered the aim to ous t or a s s a s s ina te the
Pres ident a nd ta ke-over the reigns of governm ent a s a clea r a nd pres ent danger.

During the ora l a rgum ents held on March 7, 2006, the Solicitor Genera l s pecified the fa cts lea ding to
the is s ua nce of PP 1017 a nd G.O. No. 5. Significantly, there was no refutation from petitioners ’
couns els .

The Solicitor Genera l a rgued tha t the intent of the Cons titution is to give full dis cretionary powers to
the Pres ident in determining the neces s ity of calling out the a rm ed forces . He empha s ized that none
of the petitioners ha s s hown tha t PP 1017 wa s without fa ctual ba s es . While he explained tha t it is not
res pondents ’ ta s k to s tate the fa cts behind the ques tioned Procla m ation, however, they a re pres enting
the s a me, na rra ted hereunder, for the elucida tion of the is s ues .

On J a nua ry 17, 2006, Capta in Natha niel Rabonza a nd Firs t Lieutena nts Sonny Sa rm iento, La wrence
Sa n J ua n a nd Patricio Bumida ng, mem bers of the Ma gda lo Group indicted in the Oa kwood m utiny,
es ca ped their detention cell in Fort Bonifa cio, Ta guig City. In a public s ta tement, they vowed to rem ain
defia nt a nd to elude a rres t at all cos ts . They ca lled upon the people to “s how and proclaim our
dis pleas ure at the s ham regime. Let us demons trate our dis gus t, not only by going to the s treets in protes t,
but als o by wearing red bands on our left arms .” 5
On Februa ry 17, 2006, the a uthorities got hold of a docum ent entitled “Oplan Hackle I ” which detailed
pla ns for bom bings a nd a tta cks during the Philippine Milita ry Aca dem y Alum ni Hom ecom ing in Ba guio
City. The plot wa s to a s s a s s ina te s elected ta rgets including s om e ca binet m em bers a nd Pres ident
Arroyo hers elf. 6 Upon the a dvice of her s ecurity, Pres ident Arroyo decided not to a ttend the Alum ni
Hom ecom ing. The next da y, a t the height of the celebration, a bomb wa s found a nd detona ted a t the
PMA pa ra de ground.

On Februa ry 21, 2006, Lt. Sa n J ua n wa s reca ptured in a com m unis t s a fehous e in Ba ta nga s province.
Found in his pos s es s ion were two (2) fla s h dis ks containing m inutes of the m eetings between
m em bers of the Ma gda lo Group a nd the Na tional People’s Arm y (NPA), a tape recorder, a udio ca s s ette
ca rtridges , dis kettes , a nd copies of s ubvers ive docum ents . 7 Prior to his a rres t, Lt. Sa n J ua n a nnounced
through DZRH tha t the “Magdalo’s D-Day would be on February 24, 2006, the 20th Annivers ary of Eds a I.”

On Februa ry 23, 2006, PNP Chief Arturo Lom iba o intercepted inform a tion tha t mem bers of the PNP-
Special Action Force were pla nning to defect. Thus , he im m ediately ordered SAF Com m a nding General
Ma rcelino Fra nco, J r. to “dis avow” a ny defection. The latter prom ptly obeyed a nd is s ued a public
s ta tem ent: “All SAF units are under the effective control of res pons ible and trus tworthy officers with
proven integrity and unques tionable loyalty.“

On the s am e da y, at the hous e of form er Congres s m a n Peping Cojua ngco, Pres ident Cory Aquino’s
brother, bus ines s m en a nd m id-level governm ent officials plotted m oves to bring down the Arroyo
a dm inis tra tion. Nelly Sinda yen of TIME Ma ga zine reported that Pa s tor Sa ycon, longtim e Arroyo critic,
ca lled a U.S. governm ent official a bout his group’s pla ns if Pres ident Arroyo is ous ted. Sa ycon a ls o
phoned a m a n code-na m ed Delta . Saycon identified him a s B/ Gen. Da nilo Lim , Com ma nder of the
Arm y’s elite Scout Ra nger. Lim s aid “it was all sys tems go for the planned movement agains t Arroyo.“8

B/ Gen. Da nilo Lim a nd Briga de Com ma nder Col. Ariel Querubin confided to Gen. Generos o Senga, Chief
of Sta ff of the Armed Forces of the Philippines (AFP), tha t a huge num ber of s oldiers would join the
ra llies to provide a critica l m a s s a nd a rm ed com ponent to the Anti-Arroyo protes ts to be held on
Februa ry 24, 2005. According to thes e two (2) officers , there wa s no wa y they could pos s ibly s top the
s oldiers beca us e they too, were brea king the cha in of com m a nd to join the forces fois t to uns ea t the
Pres ident. However, Gen. Senga ha s rem a ined faithful to his Comm a nder-in-Chief a nd to the chain of
com m a nd. He im m ediately took cus tody of B/ Gen. Lim a nd directed Col. Querubin to return to the
Philippine Ma rines Hea dqua rters in Fort Bonifa cio.

Ea rlier, the CPP-NPA ca lled for intens ifica tion of political a nd revolutiona ry work within the milita ry a nd
the police es tablis hm ents in order to forge a llia nces with its m embers a nd key officials . NPA
s pokes m a n Gregorio “Ka Roger” Ros a l decla red: “The Communis t Party and revolutionary movement
and the entire people look forward to the pos s ibility in the coming year of accomplis hing its immediate
tas k 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 ha nd, Ces a r Renerio, s pokes m a n for the Na tional Dem ocra tic Front (NDF) a t North Central
Minda na o, publicly a nnounced: “Anti-Arroyo groups within the military and police are growing rapidly,
has tened by the economic difficulties suffered by the families of AFP officers and enlis ted pers onnel who
undertake counter-ins urgency operations in the field.” He cla im ed that with the forces of the na tiona l
dem ocra tic m ovem ent, the a nti-Arroyo cons erva tive politica l pa rties , coa litions , plus the groups that
ha ve been reinforcing s ince J une 2005, it is proba ble that the Pres ident’s ous ter is nea ring its
concluding s ta ge in the firs t half of 2006.

Res pondents further cla im ed tha t the bom bing of telecom m unica tion towers a nd cell s ites in Bula ca n
a nd Ba taa n wa s als o cons idered a s additiona l fa ctua l ba s is for the is s ua nce of PP 1017 a nd G.O. No.
5. So is the ra id of a n a rm y outpos t in Benguet res ulting in the death of three (3) s oldiers . And als o the
directive of the Com m unis t Pa rty of the Philippines ordering its front orga niza tions to join 5,000 Metro
Ma nila ra dica ls a nd 25,000 m ore from the provinces in ma s s protes ts .10

By m idnight of Februa ry 23, 2006, the Pres ident convened her s ecurity a dvis ers a nd s evera l ca binet
m em bers to a s s es s the gra vity of the ferm enting pea ce a nd order s itua tion. She directed both the AFP
a nd the PNP to a ccount for a ll their m en a nd ens ure tha t the cha in of com m a nd rem ains s olid a nd
undivided. To protect the young s tudents from a ny pos s ible trouble tha t m ight brea k loos e on the
s treets , the Pres ident s us pended cla s s es in all levels in the entire Na tiona l Ca pita l Region.

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

Im m edia tely, the Office of the Pres ident a nnounced the ca ncella tion of a ll progra m s a nd a ctivities
rela ted to the 20th a nnivers a ry celebra tion of Eds a People Power I; a nd revoked the perm its to hold
ra llies is s ued ea rlier by the loca l governm ents . J us tice Secreta ry Ra ul Gonza les s ta ted tha t politica l
ra llies , which to the Pres ident’s m ind were orga nized for purpos es of des ta biliza tion, a re
ca ncelled.Pres identia l Chief of Staff Micha el Defens or a nnounced tha t “warrantles s arres ts and take-
over of facilities , including media, can already be implemented.”11

Undeterred by the a nnouncem ents that ra llies a nd public a s s em blies would not be a llowed, groups of
protes ters (m em bers of Kilus ang Mayo Uno [KMU] a nd Na tiona l Federa tion of La bor Unions -Kilus ang
Mayo Uno [NAFLU-KMU]), m a rched from va rious pa rts of Metro Ma nila with the intention of converging
a t the EDSA s hrine. Thos e who were a lrea dy nea r the EDSA s ite were violently dis pers ed by huge
clus ters of a nti-riot police. The well-tra ined policem en us ed truncheons , big fiber gla s s s hields , wa ter
ca nnons , a nd tea r ga s to s top a nd brea k up the m a rching groups , a nd s ca tter the m a s s ed pa rticipa nts .
The s a m e police a ction wa s us ed a ga ins t the protes ters m a rching forwa rd to Cuba o, Quezon City a nd
to the corner of Sa ntola n Street a nd EDSA. Tha t s a m e evening, hundreds of riot policem en broke up a n
EDSA celebra tion rally held a long Ayala Avenue a nd Pa s eo de Roxa s Street in Ma ka ti City.12

According to petitioner Kilus ang Mayo Uno, the police cited PP 1017 a s the ground for the dis pers a l of
their a s s em blies .

During the dis pers a l of the ra llyis ts a long EDSA, police a rres ted (without wa rra nt) petitioner Ra ndolf S.
Da vid, a profes s or at the Univers ity of the Philippines a nd news paper columnis t. Als o a rres ted wa s his
com pa nion, Rona ld Lla ma s , pres ident of pa rty-lis t Akbayan.

At a round 12:20 in the ea rly m orning of Februa ry 25, 2006, opera tives of the Crim ina l Inves tiga tion a nd
Detection Group (CIDG) of the PNP, on the ba s is of PP 1017 a nd G.O. No. 5, ra ided the Daily
Tribune offices in Ma nila . The ra iding tea m confis ca ted news s tories by reporters , docum ents , pictures ,
a nd m ock-ups of the Sa turda y is s ue. Policem en from Ca m p Cra me in Quezon City were s ta tioned ins ide
the editoria l a nd bus ines s offices of the news pa per; while policem en from the Ma nila Police Dis trict
were s ta tioned outs ide the building.13

A few m inutes after the s ea rch a nd s eizure at the Daily Tribune offices , the police s urrounded the
prem is es of a nother pro-oppos ition paper, Ma la ya , a nd its s is ter publica tion, the tabloid Aba nte.

The ra id, a ccording to Pres identia l Chief of Sta ff Micha el Defens or, is “meant to s how a ‘s trong
pres ence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing down
this government.” The PNP wa rned tha t it would ta ke over a ny m edia orga niza tion that would not
follow “s tandards s et by the government during the s tate of national emergency.” Director Genera l
Lom iba o s ta ted tha t “if they do not follow the s tandards —and the s tandards are—if they would contribute
to ins tability in the government, or if they do not s ubs cribe to what is in General Order No. 5 and Proc. No.
1017—we will recommend a ‘takeover.’” Na tiona l Telecom m unica tions ’ Com m is s ioner Rona ld Solis
urged televis ion a nd ra dio networks to “cooperate” with the governm ent for the dura tion of the s tate of
na tiona l em ergency. He a s ked for “balanced reporting” from broa dca s ters when covering the events
s urrounding the coup a ttem pt foiled by the governm ent. He wa rned tha t his a gency will not hes ita te to
recom m end the clos ure of a ny broa dca s t outfit tha t violates rules s et out for m edia covera ge when the
na tiona l s ecurity is threa tened.14

Als o, on Februa ry 25, 2006, the police a rres ted Congres s m a n Cris pin Beltra n, repres enting
the Anakpawis Pa rty a nd Cha irma n of Kilus ang Mayo Uno (KMU), while lea ving his fa rm hous e in
Bula ca n. The police s howed a wa rra nt for his a rres t dated 1985. Beltra n’s la wyer explained tha t the
wa rra nt, which s temm ed from a ca s e of inciting to rebellion filed during the Ma rcos regim e, ha d long
been qua s hed. Beltra n, however, is not a pa rty in a ny of thes e petitions .
When m em bers of petitioner KMU went to Cam p Cram e to vis it Beltra n, they were told they could not
be adm itted beca us e of PP 1017 a nd G.O. No. 5. Two m em bers were a rres ted a nd deta ined, while the
res t were dis pers ed by the police.

Bayan Muna Repres enta tive Satur Oca m po eluded a rres t when the police went a fter him during a public
forum a t the Sulo Hotel in Quezon City. But his two drivers , identified a s Roel a nd Art, were ta ken into
cus tody.

Retired Ma jor Genera l Ram on Monta ño, form er hea d of the Philippine Cons ta bula ry, wa s a rres ted while
with his wife a nd golfm a tes a t the Orcha rd Golf a nd Country Club in Da s ma riña s , Ca vite.

Attem pts were m a de to a rres t Anakpawis Repres enta tive Sa tur Oca m po, Repres enta tive Ra fa el
Ma ria no, Bayan Muna Repres enta tive Teodoro Ca s iño a nd Ga briela Repres enta tive Liza Maza . Bayan
Muna Repres enta tive J os el Virador wa s a rres ted a t the PAL Ticket Office in Da va o City. Later, he wa s
turned over to the cus tody of the Hous e of Repres enta tives where the “Ba ta s a n 5” decided to s ta y
indefinitely.

Let it be s tres s ed a t this point that the a lleged viola tions of the rights of Repres enta tives Beltra n, Sa tur
Oca m po, et al., a re not being rais ed in thes e petitions .

On Ma rch 3, 2006, Pres ident Arroyo is s ued PP 1021 decla ring that the s tate of na tional em ergency ha s
cea s ed to exis t.

In the interim , thes e s even (7) petitions cha llenging the cons titutiona lity of PP 1017 a nd G.O. No. 5
were filed with this Court agains t the above-na m ed res pondents . Three (3) of thes e petitions im plea ded
Pres ident Arroyo a s res pondent.

InG.R. No. 171396, petitioners Ra ndolf S. Da vid, et al. a s s a iled PP 1017 on the grounds that (1) it
encroa ches on the em ergency powers of Congres s ; (2) itis a s ubterfuge to a void the cons titutiona l
requirem ents for the im pos ition of m a rtia l la w; a nd (3) it viola tes the cons titutiona l gua ra ntees of
freedom of the pres s , of s peech a nd of a s s embly.

In G.R. No. 171409, petitioners Ninez Ca cho-Oliva res a nd Tribune Publis hing Co., Inc.cha llenged the
CIDG’s a ct of ra iding the Daily Tribune offices a s a clea r ca s e of “cens ors hip” or “prior res tra int.” They
a ls o cla im ed tha t the term “em ergency” refers only to ts una m i, typhoon, hurrica ne a nd s im ila r
occurrences , hence, there is “abs olutely no emergency” tha t wa rra nts the is s ua nce of PP 1017.

In G.R. No. 171485, petitioners herein a re Repres enta tive Fra ncis J os eph G. Es cudero, a nd twenty one
(21) other m em bers of the Hous e of Repres entatives , including Repres enta tives Sa tur Oca m po, Ra fael
Ma ria no, Teodoro Ca s iño, Liza Ma za, a nd J os el Vira dor. They a s s erted tha t PP 1017 a nd G.O. No. 5
cons titute “us urpation of legis lative powers “; “violation of freedom of expres sion” a nd “a declaration of
martial law.” They a lleged tha t Pres ident Arroyo “gravely abus ed her dis cretion in calling out the armed
forces without clear and verifiable factual bas is of the pos s ibility of lawles s violence and a s howing that
there is neces s ity to do s o.“

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, a nd their mem bers a verred that PP 1017 a nd G.O.
No. 5 a re uncons titutional beca us e (1) they a rroga te unto Pres ident Arroyo the power to ena ct la ws
a nd decrees ; (2) their is s ua nce wa s without fa ctua l ba s is ; a nd (3) they violate freedom of expres s ion
a nd the right of the people to pea cea bly a s s em ble to redres s their grieva nces .

In G.R. No. 171400, petitioner Alternative La w Groups , Inc. (ALGI) a lleged tha t PP 1017 a nd G.O. No. 5
a re uncons titutional beca us e they viola te (a) Section 4 15 of Article II, (b) Sections 1,16 2,17 a nd 4 18 of
Article III, (c) Section 23 19 of Article VI, a nd (d) Section 17 20 of Article XII of the Cons titution.

In G.R. No. 171489, petitioners J os e Ans elm o I. Ca diz et al., a lleged tha t PP 1017 is a n “arbitrary and
unlawful exercis e by the Pres ident of her Martial Law powers .” And a s s uming tha t PP 1017 is not rea lly
a decla ra tion of Ma rtia l La w, petitioners a rgued that “it amounts to an exercis e by the Pres ident of
emergency powers without congres s ional approval.” In a ddition, petitioners as s erted tha t PP 1017 “goes
beyond the nature and function of a proclamation as defined under the Revis ed Adminis trative Code.”
And la s tly, in G.R. No. 171424,petitionerLoren B. Lega rda m a inta ined that PP 1017 a nd G.O. No. 5 a re
“uncons titutional for being violative of the freedom of expres s ion, including its cognate rights s uch as
freedom of the pres s and the right to acces s to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Cons titution.” In this rega rd, s he s ta ted tha t thes e is s ua nces
prevented her from fully pros ecuting her election protes t pending before the Pres idential Electoral
Tribuna l.

In res pondents ’ Cons olida ted Com m ent, the Solicitor General countered that: firs t, the petitions s hould
be dis mis s ed for being m oot; s econd,petitioners in G.R. Nos . 171400 (ALGI), 171424 (Lega rda ), 171483
(KMU et al.), 171485 (Es cudero et al.) a nd 171489 (Ca diz et al.) ha ve no lega l s ta nding; third, it is not
neces s a ry for petitioners to im plea d Pres ident Arroyo a s res pondent; fourth, PP 1017 ha s
cons titutional a nd legal ba s is ; a nd fifth, PP 1017 does not viola te the people’s right to free expres s ion
a nd redres s of grieva nces .

On Ma rch 7, 2006, the Court conducted ora l a rgum ents a nd hea rd the pa rties on the a bove interlocking
is s ues which m a y be s um ma rized a s follows :

A. PROCEDURAL:

1) Whether the is s ua nce of PP 1021 renders the petitions m oot a nd a ca dem ic.

2) Whether petitioners in 171485 (Es cudero et al.), G.R. Nos . 171400 (ALGI), 171483 (KMU et
al.), 171489 (Ca diz et al.), a nd 171424 (Lega rda ) ha ve legal s ta nding.

B. SUBSTANTIVE:

1) Whetherthe Suprem e Court ca n review the fa ctua l ba s es of PP 1017.

2) Whether PP 1017 a nd G.O. No. 5 a re uncons titutional.

a. Fa cia l Cha llenge

b. Cons titutional Ba s is

c. As Applied Challenge

A. PROCEDURAL

Firs t, we m us t res olve the procedura l roa dblocks .

I- Moot and Academic Principle

One of the greates t contributions of the Am erica n s ys tem to this country is the concept of judicia l
review enuncia ted in Marbury v. Madison.21 This concept res ts on the extra ordina ry s im ple foundation—

The Cons titution is the s uprem e la w. It wa s orda ined by the people, the ultim a te s ource of a ll political
a uthority. It confers lim ited powers on the na tional governm ent. x x x If the government cons cious ly or
uncons cious ly overs teps thes e limitations there mus t be s ome authority competent to hold it in
control, to thwart its uncons titutional attempt, and thus to vindicate and pres erve inviolate the will of
the people as expres s ed in the Cons titution. This power the courts exercis e. This is the beginning and
the end of the theory of judicial review.22

But the power of judicia l review does not repos e upon the courts a “s elf-s ta rting ca pa city.”23 Courts
m a y exercis e s uch power only when the following requis ites a re pres ent: firs t, there m us t be a n a ctual
ca s e or controvers y; s econd, petitioners ha ve to ra is e a ques tion of cons titutionality; third, the
cons titutional ques tion m us t be ra is ed at the ea rlies t opportunity; a nd fourth, the decis ion of the
cons titutional ques tion m us t be neces s a ry to the determ ination of the ca s e its elf.24

Res pondents ma inta in that the firs t a nd s econd requis ites a re a bs ent, hence, we s ha ll limit our
dis cus s ion thereon.
An a ctua l ca s e or controvers y involves a conflict of lega l right, a n oppos ite lega l claim s s us ceptible of
judicia l res olution. It is “definite a nd concrete, touching the lega l rela tions of pa rties ha ving a dvers e
legal interes t;” a rea l a nd s ubs ta ntia l controvers y a dm itting of s pecific relief.25 The Solicitor Genera l
refutes the exis tence of s uch a ctua l ca s e or controvers y, contending tha t the pres ent petitions were
rendered “m oot a nd a ca dem ic” by Pres ident Arroyo’s is s ua nce of PP 1021.

Such contention la cks m erit.

A m oot a nd a ca demic ca s e is one tha t cea s es to pres ent a jus ticia ble controvers y by virtue of
s upervening events ,26 s o that a decla ra tion thereon would be of no pra ctica l us e or value.27 Genera lly,
courts decline juris diction over s uch ca s e 28 or dis mis s it on ground of m ootnes s .29

The Court holds tha t Pres ident Arroyo’s is s ua nce of PP 1021 did not render the pres ent petitions m oot
a nd a ca dem ic. During the eight (8) days tha t PP 1017 wa s operative, the police officers , a ccording to
petitioners , com m itted illegal a cts in im plem enting it. Are PP 1017 and G.O. No. 5 cons titutional or
valid? Do they jus tify thes e alleged illegal acts ?Thes e a re the vital is s ues tha t m us t be res olved in the
pres ent petitions . It m us t be s tres s ed tha t “an uncons titutional act is not a law, it confers no rights , it
impos es no duties , it affords no protection; it is in legal contemplation, inoperative.”30

The “m oot a nd a ca demic” principle is not a m a gical form ula tha t ca n a utomatica lly dis s ua de the courts
in res olving a ca s e. Courts will decide ca s es , otherwis e m oot a nd a ca demic, if: firs t, there is a gra ve
viola tion of the Cons titution;31 s econd, the exceptional cha ra cter of the s itua tion a nd the pa ram ount
public interes t is involved;32 third, when cons titutional is s ue rais ed requires form ula tion of controlling
principles to guide the bench, the ba r, a nd the public;33 a nd fourth, the ca s e is ca pa ble of repetition yet
eva ding review.34

All the foregoing exceptions a re pres ent here a nd jus tify this Court’s a s s um ption of juris diction over
the ins ta nt petitions . Petitioners alleged tha t the is s ua nce of PP 1017 and G.O. No. 5 violates the
Cons titution. There is no ques tion that the is s ues being rais ed a ffect the public’s interes t, involving a s
they do the people’s ba s ic rights to freedom of expres s ion, of a s s em bly a nd of the pres s . Moreover,
the Court ha s the duty to form ulate guiding a nd controlling cons titutional precepts , doctrines or rules .
It ha s the s ym bolic function of educa ting the bench a nd the ba r, a nd in the pres ent petitions , the military
and the police, on the extent of the protection given by cons titutiona l gua ra ntees .35 And la s tly,
res pondents ’ contes ted a ctions a re ca pa ble of repetition. Certa inly, the petitions a re s ubject to judicia l
review.

In their attem pt to prove the alleged mootnes s of this ca s e, res pondents cited Chief J us tice Artemio V.
Pa nga niba n’s Sepa ra te Opinion in Sanlakas v. Executive Secretary.36 However, they fa iled to ta ke into
a ccount the Chief J us tice’s very s ta tem ent that a n otherwis e “m oot” ca s e m a y s till be decided “provided
the party rais ing it in a proper cas e has been and/ or continues to be prejudiced or damaged as a direct
res ult of its is s uance.” The pres ent cas e falls right within this exception to the m ootnes s rule pointed
out by the Chief J us tice.

II- Legal Standing

In view of the num ber of petitioners s uing in va rious pers ona lities , the Court deem s it im perative to
ha ve a m ore tha n pa s s ing dis cus s ion on lega l s ta nding or locus s tandi.

Locus s tandi is defined a s “a right of appea ra nce in a court of jus tice on a given ques tion.”37 In priva te
s uits , s ta nding is governed by the “real-pa rties -in interes t” rule a s contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, a s am ended. It provides tha t “every action mus t be pros ecuted or
defended in the name of the real party in interes t.” Accordingly, the “real-pa rty-in interes t” is “the party
who s tands to be benefited or injured by the judgment in the s uit or the party entitled to the avails of
the s uit.“38 Succinctly put, the plaintiff’s s ta nding is ba s ed on his own right to the relief s ought.

The difficulty of determ ining locus s tandi a ris es in public s uits . Here, the pla intiff who a s s erts a “public
right” in a s s ailing a n allegedly illegal officia l a ction, does s o a s a repres entative of the general public.
He m a y be a pers on who is a ffected no differently from a ny other pers on. He could be s uing a s a
“s tra nger,” or in the ca tegory of a “citizen,” or ‘ta xpa yer.” In either ca s e, he ha s to a dequa tely s how tha t
he is entitled to s eek judicia l protection. In other words , he ha s to m a ke out a s ufficient interes t in the
vindica tion of the public order a nd the s ecuring of relief a s a “citizen” or “ta xpa yer.

Ca s e la w in m os t juris dictions now a llows both “citizen” a nd “ta xpa yer” s ta nding in public a ctions . The
dis tinction wa s firs t la id down in Beauchamp v. Silk,39 where it wa s held tha t the pla intiff in a taxpa yer’s
s uit is in a different ca tegory from the pla intiff in a citizen’s s uit. In the former, the plaintiff is affected
by the expenditure of public funds , while in the latter, he is but the m ere ins trument of the public
concern. As held by the New York Suprem e 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 leas t the right, if not the duty, of every
citizen to interfere and s ee that a public offence be properly purs ued and punis hed, and that a public
grievance be rem edied.” With res pect to ta xpa yer’s s uits , Terr v. J ordan41 held tha t “the right of a
citizen and a taxpayer to maintain an action in courts to res train the unlawful us e of public funds to
his injury cannot be denied.“

However, to prevent jus t a bout a ny pers on from s eeking judicial interference in a ny officia l policy or a ct
with which he dis agreed with, a nd thus hinders the a ctivities of governm enta l a gencies enga ged in
public s ervice, the United Sta te Suprem e Court laid down the m ore s tringent “direct injury” tes t in Ex
Parte Levitt,42 later rea ffirm ed in Tiles ton v. Ullman.43 The s a m e Court ruled tha t for a priva te individual
to invoke the judicial power to determine the validity of a n executive or legis la tive a ction, he mus t s how
that he has s us tained a direct injury as a res ult of that action, and it is not s ufficient that he has a
general interes t common to all members of the public.

This Court a dopted the “direct injury” tes t in our juris diction. In People v. Vera,44 it held tha t the pers on
who im pugns the va lidity of a s ta tute m us t ha ve “a pers onal and s ubs tantial interes t in the cas e s uch
that he has s us tained, or will s us tain direct injury as a res ult.” The Vera doctrine wa s upheld in a lita ny
of ca s es , s uch a s , Cus todio v. Pres ident of the Senate,45 Manila Race Hors e Trainers ’ As s ociation v. De la
Fuente,46 Pas cual v. Secretary of Public Works 47 a nd Anti-Chines e League of the Philippines v. Felix.48

However, being a m ere procedura l technica lity, the requirem ent of locus s tandi m a y be wa ived by the
Court in the exercis e of its dis cretion. This wa s done in the 1949 Emergency Powers Cas es ,Araneta v.
Dinglas an,49 where the “trans cendental importance” of the ca s es prom pted the Court to a ct liberally.
Such libera lity wa s neither a ra rity nor a ccidental. In Aquino v. Comelec,50 this Court res olved to pa s s
upon the is s ues rais ed due to the “far-reaching implications ” of the petition notwiths ta nding its
ca tegorica l s ta tem ent tha t petitioner therein ha d no pers ona lity to file the s uit. Indeed, there is a chain
of ca s es where this libera l policy ha s been obs erved, a llowing ordina ry citizens , m embers of Congres s ,
a nd civic orga niza tions to pros ecute a ctions involving the cons titutiona lity or va lidity of la ws ,
regula tions a nd rulings .51

Thus , the Court ha s adopted a rule tha t even where the petitioners ha ve fa iled to s how direct injury,
they ha ve been a llowed to s ue under the principle of “trans cendental importance.” Pertinent a re the
following ca s es :

(1)Chavez v. Public Es tates Authority,52 where the Court ruled tha t the enforcement of the cons titutional
right to information and the equitable diffus ion of natural res ources are matters of trans cendental
importance which clothe the petitioner with locus s tandi;

(2)Bagong Alyans ang Makabayan v. Zamora,53 wherein the Court held tha t “given the trans cendental
importance of the is s ues involved, the Court may relax the s tanding requirements and allow the s uit
to pros per des pite the lack of direct injury to the parties s eeking judicial review” of the Vis iting Forces
Agreem ent;

(3) Lim v. Executive Secretary,54 while the Court noted tha t the petitioners m a y not file s uit in their
ca pa city a s taxpa yers a bs ent a s howing tha t “Ba lika ta n 02-01” involves the exercis e of Congres s ’ ta xing
or s pending powers , it reitera ted its ruling in Bagong Alyansang Makabayan v. Zamora,55 that in cas es of
trans cendental importance, the cas es mus t be s ettled promptly and definitely and s tanding
requirements may be relaxed.

By wa y of s um m a ry, the following rules m a y be culled from the ca s es decided by this Court. Taxpa yers ,
voters , concerned citizens , a nd legis la tors m a y be a ccorded s ta nding to s ue, provided tha t the following
requirem ents a re m et:
(1) the ca s es involve cons titutional is s ues ;

(2) for taxpayers , there m us t be a cla im of illega l dis burs em ent of public funds or tha t the ta x m ea s ure
is uncons titutional;

(3) for voters , there m us t be a s howing of obvious interes t in the va lidity of the election la w in ques tion;

(4) for concerned citizens , there m us t be a s howing tha t the is s ues ra is ed a re of tra ns cendental
im porta nce which m us t be s ettled ea rly; a nd

(5) for legis lators , there m us t be a cla im tha t the officia l a ction com pla ined of infringes upon their
preroga tives a s legis la tors .

Significa ntly, recent decis ions s how a certa in toughening in the Court’s a ttitude towa rd legal s ta nding.

In Kilos bayan, Inc. v. Morato,56 the Court ruled that the s ta tus of Kilos bayan as a people’s orga niza tion
does not give it the requis ite pers onality to ques tion the validity of the on-line lottery contra ct, m ore s o
where it does not ra is e a ny is s ue of cons titutiona lity. Moreover, it ca nnot s ue a s a ta xpa yer a bs ent a ny
a llega tion tha t public funds a re being m is us ed. Nor ca n it s ue a s a concerned citizen a s it does not
a llege a ny s pecific injury it ha s s uffered.

In Telecommunications and Broadcas t Attorneys of the Philippines , Inc. v. Comelec,57 the Court reitera ted
the “direct injury” tes t with res pect to concerned citizens ’ ca s es involving cons titutiona l is s ues . It held
tha t “there m us t be a s howing that the citizen pers ona lly s uffered s om e a ctua l or threa tened injury
a ris ing from the alleged illegal official a ct.”

In Lacs on v. Perez,58 the Court ruled tha t one of the petitioners , Laban ng Demokratikong Pilipino (LDP),
is not a real pa rty-in-interes t a s it ha d not dem ons trated a ny injury to its elf or to its lea ders , m embers
or s upporters .

In Sanlakas v. Executive Secretary,59 the Court ruled tha t only the petitioners who a re m em bers of
Congres s ha ve s ta nding to s ue, a s they cla im tha t the Pres ident’s decla ra tion of a s ta te of rebellion is
a us urpation of the emergency powe rs of Congres s , thus impairing their legis lative powers . As to
petitioners Sanlakas , Partido Manggagawa, and Social J us tice Society, the Court decla red them to be
devoid of s ta nding, equa ting them with the LDP in Lacs on.

Now, the a pplica tion of the a bove principles to the pres ent petitions .

The locus s tandi of petitioners in G.R. No. 171396, pa rticula rly Da vid a nd Llam a s , is beyond doubt. The
s a m e holds true with petitioners in G.R. No. 171409, Ca cho-Oliva res a nd Tribune Publis hing Co. Inc.
They a lleged “direct injury” res ulting from “illegal a rres t” a nd “unla wful s earch” com m itted by police
opera tives purs ua nt to PP 1017. Rightly s o, the Solicitor Genera l does not ques tion their legal s ta nding.

In G.R. No. 171485, the oppos ition Congres s m en alleged there wa s us urpa tion of legis la tive powers .
They a ls o ra is ed the is s ue of whether or not the concurrence of Congres s is neces s a ry whenever the
a la rming powers incident to Ma rtial La w a re us ed. Moreover, it is in the interes t of jus tice tha t thos e
a ffected by PP 1017 ca n be repres ented by their Congres s m en in bringing to the a ttention of the Court
the a lleged viola tions of their ba s ic rights .

In G.R. No. 171400, (ALGI), this Court a pplied the libera lity rule in Philcons a v. Enriquez,60 Kapatiran Ng
Mga Naglilingkod sa Pamahalaan ng Pilipinas , Inc. v. Tan,61 As s ociation of Small Landowners in the
Philippines , Inc. v. Secretary of Agrarian Reform,62 Bas co v. Philippine Amus ement and Gaming
Corporation,63 a nd Tañada v. Tuvera,64 tha t when the is s ue concerns a public right, it is s ufficient that
the petitioner is a citizen a nd ha s a n interes t in the execution of the la ws .

In G.R. No. 171483, KMU’s a s s ertion tha t PP 1017 a nd G.O. No. 5 viola ted its right to pea ceful a s s em bly
m a y be deem ed s ufficient to give it lega l s ta nding. Organizations may be granted s tanding to as s ert
the rights of their members .65 We ta ke judicia l notice of the a nnouncem ent by the Office of the
Pres ident ba nning all ra llies a nd ca nceling all perm its for public a s s em blies following the is s ua nce of
PP 1017 a nd G.O. No. 5.
In G.R. No. 171489, petitioners , Cadiz et al., who a re na tiona l officers of the Integra ted Ba r of the
Philippines (IBP) ha ve no lega l s ta nding, ha ving failed to allege a ny direct or potentia l injury which the
IBP a s a n ins titution or its m em bers ma y s uffer a s a cons equence of the is s ua nce of PP No. 1017 a nd
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held tha t the m ere invoca tion by
the IBP of its duty to pres erve the rule of la w a nd nothing m ore, while undoubtedly true, is not s ufficient
to clothe it with s ta nding in this ca s e. This is too genera l a n interes t which is s ha red by other groups
a nd the whole citizenry. However, in view of the tra ns cendental im porta nce of the is s ue, this Court
decla res that petitioner ha ve locus s tandi.

In G.R. No. 171424, Loren Lega rda has no pers ona lity a s a ta xpa yer to file the ins ta nt petition a s there
a re no a llegations of illega l dis burs em ent of public funds . The fa ct that s he is a form er Senator is of
no cons equence. She ca n no longer s ue a s a legis lator on the a llega tion tha t her preroga tives a s a
la wm a ker ha ve been im paired by PP 1017 a nd G.O. No. 5. Her cla im tha t s he is a m edia pers ona lity will
not likewis e aid her beca us e there wa s no s howing tha t the enforcem ent of thes e is s ua nces prevented
her from purs uing her occupa tion. Her s ubm is s ion that s he ha s pending electora l protes t before the
Pres identia l Electora l Tribuna l is likewis e of no releva nce. She ha s not s ufficiently s hown tha t PP 1017
will a ffect the proceedings or res ult of her ca s e. But cons idering once m ore the tra ns cendenta l
im porta nce of the is s ue involved, this Court m a y rela x the s ta nding rules .

It m us t alwa ys be borne in m ind tha t the ques tion of locus s tandi is but corolla ry to the bigger ques tion
of proper exercis e of judicial power. This is the underlying lega l tenet of the “libera lity doctrine” on legal
s ta nding. It ca nnot be doubted that the va lidity of PP No. 1017 a nd G.O. No. 5 is a judicial ques tion
which is of pa ram ount im porta nce to the Filipino people. To pa ra phra s e J us tice La urel, the whole of
Philippine s ociety now wa its with bated brea th the ruling of this Court on this very critica l m atter. The
petitions thus ca ll for the a pplica tion of the “trans cendental importance ” doctrine, a rela xa tion of the
s ta nding requirem ents for the petitioners in the “PP 1017 ca s es .”

This Court holds tha t a ll the petitioners herein ha ve locus s tandi.

Incidenta lly, it is not proper to im plead Pres ident Arroyo a s res pondent. Settled is the doctrine tha t the
Pres ident, during his tenure of office or a ctua l incum bency,67 m a y not be s ued in any civil or crim inal
ca s e, a nd there is no need to provide for it in the Cons titution or la w. It will degra de the dignity of the
high office of the Pres ident, the Hea d of Sta te, if he ca n be dra gged into court litiga tions while s erving
a s s uch. Furtherm ore, it is importa nt tha t he be freed from a ny form of ha ra s s m ent, hindra nce or
dis tra ction to ena ble him to fully a ttend to the perform a nce of his officia l duties a nd functions . Unlike
the legis la tive a nd judicial bra nch, only one cons titutes the executive bra nch a nd a nything which
im pairs his us efulnes s in the dis cha rge of the m a ny grea t a nd im porta nt duties impos ed upon him by
the Cons titution neces s a rily im pairs the opera tion of the Governm ent. However, this does not m ean
tha t the Pres ident is not a ccounta ble to a nyone. Like a ny other officia l, he rem a ins a ccounta ble to the
people 68 but he m a y be rem oved from office only in the m ode provided by la w a nd that is by
im pea chm ent.69

B. SUBSTANTIVE

I. Review of Factual Bas es

Petitioners m aintain that PP 1017 ha s no fa ctua l ba s is . Hence, it wa s not “neces s a ry” for Pres ident
Arroyo to is s ue s uch Procla m a tion.

The is s ue of whether the Court may review the fa ctua l ba s es of the Pres ident’s exercis e of his
Com m a nder-in-Chief power ha s rea ched its dis tilled point—from the indulgent da ys of Barcelon v.
Baker70 a nd Montenegro v. Cas taneda 71 to the vola tile era of Lans ang v. Garcia,72 Aquino, J r. v.
Enrile,73 a nd Ga rcia-Pa dilla v. Enrile.74 The tug-of-wa r a lwa ys cuts a cros s the line defining “politica l
ques tions ,” pa rticula rly thos e ques tions “in rega rd to which full dis cretiona ry a uthority ha s been
delega ted to the legis la tive or executive bra nch of the governm ent.”75 Barcelon and Montenegro were in
unis on in decla ring that the authority to decide whether an exigency has aris en belongs to the
Pres ident a nd his decis ion is final and conclus ive on the courts . Lans ang took the oppos ite view.
There, the mem bers of the Court were una nim ous in the conviction tha t the Court ha s the a uthority to
inquire into the exis tence of fa ctua l ba s es in order to determine their cons titutiona l s ufficiency. From
the principle of s eparation of powers , it s hifted the focus to the s ys tem of checks and balances ,
“under which the Pres ident is s upreme, x x x only if and when he acts within the s phere allotted to him
by the Bas ic Law, and the authority to determine whether or not he has s o acted is ves ted in the
J udicial Department, which in this res pect, is , in turn, cons titutionally s upreme.“76 In 1973, the
una nim ous Court of Lans ang wa s divided in Aquino v. Enrile.77 There, the Court wa s a lm os t evenly
divided on the is s ue of whether the validity of the im pos ition of Ma rtia l La w is a politica l or jus ticia ble
ques tion.78 Then ca m e Garcia-Padilla v. Enrile which grea tly diluted Lans ang. It decla red that there is a
need to re-exam ine the latter ca s e, ra tiocinating that “in times of war or national emergency, the
Pres ident mus t be given abs olute control for the very life of the nation and the government is in great
peril. The Pres ident, it intoned, is ans werable only to his cons cience, the People, and God.”79

The Integrated Bar of the Philippines v. Zamora 80 —a recent ca s e m os t pertinent to thes e ca s es a t ba r—

echoed a principle s imila r to Lans ang. While the Court cons idered the Pres ident’s “ca lling-out” power
a s a dis cretiona ry power s olely ves ted in his wis dom , it s tres s ed that “this does not prevent an
examination of whether s uch power was exercis ed within permis s ible cons titutional limits or whether
it was exercis ed in a manner cons tituting grave abus e of dis cretion.”This ruling is ma inly a res ult of
the Court’s relia nce on Section 1, Article VIII of 1987 Cons titution which fortifies the a uthority of the
courts to determ ine in a n a ppropriate a ction the validity of the a cts of the politica l depa rtm ents . Under
the new definition of judicia l power, the courts a re a uthorized not only “to s ettle a ctua l controvers ies
involving rights which a re legally dema nda ble a nd enforcea ble,” but a ls o “to determine whether or not
there has been a grave abus e of dis cretion amounting to lack or exces s of juris diction on the part of
any branch or ins trumentality of the government.” The la tter pa rt of the a uthority repres ents a
broa dening of judicial power to ena ble the courts of jus tice to review what wa s before a forbidden
territory, to wit, the dis cretion of the politica l depa rtm ents of the government.81 It s pea ks of judicia l
preroga tive not only in term s of power but als o of duty.82

As to how the Court m a y inquire into the Pres ident’s exercis e of power, Lans ang a dopted the tes t tha t
“judicia l inquiry ca n go no further tha n to s a tis fy the Court not tha t the Pres ident’s decis ion is correct,”
but that “the Pres ident did not a ct arbitrarily.” Thus , the s ta nda rd la id down is not correctnes s , but
a rbitra rines s .83 In Integrated Bar of the Philippines , this Court further ruled tha t “it is incumbent upon
the petitioner to s how that the Pres ide nt’s decis ion is totally bereft of factual bas is ” a nd tha t if he fails ,
by wa y of proof, to s upport his a s s ertion, then “this Court cannot undertake an independent
inves tigation beyond the pleadings .”

Petitioners fa iled to s how tha t Pres ident Arroyo’s exercis e of the ca lling-out power, by is s uing PP 1017,
is tota lly bereft of fa ctua l ba s is . A rea ding of the Solicitor General’s Cons olida ted Comm ent a nd
Mem ora ndum s hows a detailed na rra tion of the events lea ding to the is s ua nce of PP 1017, with
s upporting reports form ing pa rt of the records . Mentioned a re the es cape of the Ma gda lo Group, their
a uda cious threat of the Magdalo D-Day, the defections in the m ilita ry, pa rticula rly in the Philippine
Ma rines , a nd the reproving s tatem ents from the com m unis t leaders . There wa s a ls o the Minutes of the
Intelligence Report a nd Security Group of the Philippine Arm y s howing the growing a llia nce between
the NPA a nd the m ilita ry. Petitioners pres ented nothing to refute s uch events . Thus , a bs ent a ny contra ry
a llega tions , the Court is convinced tha t the Pres ident wa s jus tified in is s uing PP 1017 calling for m ilita ry
a id.

Indeed, judging the s erious nes s of the incidents , Pres ident Arroyo wa s not expected to s imply fold her
a rm s a nd do nothing to prevent or s uppres s wha t s he believed wa s la wles s violence, inva s ion or
rebellion. However, the exercis e of s uch power or duty m us t not s tifle liberty.

II. Cons titutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theoris ts
on the Power of the Pres ident in Times of Emergency

This ca s e brings to fore a contentious s ubject—the power of the Pres ident in tim es of em ergency. A
glim ps e a t the va rious politica l theories rela ting to this s ubject provides a n adequa te ba ckdrop for our
ens uing dis cus s ion.

J ohn Locke, des cribing the a rchitecture of civil governm ent, called upon the Englis h doctrine of
preroga tive to cope with the problem of em ergency. In tim es of da nger to the na tion, pos itive la w
ena cted by the legis la ture might be ina dequa te or even a fata l obs ta cle to the prom ptnes s of a ction
neces s a ry to a vert ca ta s trophe. In thes e s itua tions , the Crown reta ined a preroga tive “power to act
according to dis cretion for the public good, without the pros cription of the law and s ometimes even
agains t it.”84 But Locke recognized tha t this m oral res traint might not s uffice to a void abus e of
preroga tive powers . Who s hall judge the need for res orting to the prerogative and how may its abus e
be avoided? Here, Locke rea dily a dm itted defea t, s ugges ting tha t “the people have no other rem edy in
this , as in all other cas es where they have no judge on earth, but to appeal to Heaven.”85

J ea n-J a cques Rous s ea u a ls o a s s um ed the need for tempora ry s us pens ion of dem ocra tic proces s es
of governm ent in tim e of em ergency. According to him:

The inflexibility of the la ws , which prevents them from a dopting them s elves to circum s ta nces , m a y, in
certa in ca s es , render them dis a s trous a nd m a ke them bring a bout, at a time of cris is , the ruin of the
Sta te…

It is wrong therefore to wis h to ma ke political ins titutions a s s trong a s to render it impos s ible to
s us pend their opera tion. Even Spa rta a llowed its la w to la ps e…

If the peril is of s uch a kind that the para pherna lia of the la ws a re a n obs ta cle to their pres erva tion, the
m ethod is to nom ina te a s upreme la wyer, who s ha ll s ilence all the la ws a nd s us pend for a m om ent the
s overeign a uthority. In s uch a ca s e, there is no doubt a bout the genera l will, a nd it clea r tha t the people’s
firs t intention is that the State s hall not peris h.86

Ros s ea u did not fea r the a bus e of the em ergency dicta tors hip or “s upreme magis tracy” a s he term ed
it. For him , it would m ore likely be chea pened by “indis creet us e.” He wa s unwilling to rely upon a n
“appeal to heaven.” Ins tea d, he relied upon a tenure of office of pres cribed dura tion to a void
perpetuation of the dictators hip.87

J ohn Stua rt Mill concluded his a rdent defens e of repres enta tive governm ent: “I am far from
condemning, in cas es of extreme neces s ity, the as s umption of abs olute power in the form of a
temporary dictators hip.”88

Nicollo Ma chia velli’s view of em ergency powers , a s one elem ent in the whole s chem e of lim ited
governm ent, furnis hed a n ironic contra s t to the Lockea n theory of preroga tive. He recognized a nd
a ttem pted to bridge this cha s m in dem ocra tic politica l theory, thus :

Now, in a well-ordered s ociety, it s hould never be neces s a ry to res ort to extra -cons titutiona l m ea s ures ;
for a lthough they ma y for a tim e be beneficia l, yet the precedent is pernicious , for if the pra ctice is once
es ta blis hed for good objects , they will in a little while be dis rega rded under tha t pretext but for evil
purpos es . Thus , no republic will ever be perfect if s he ha s not by la w provided for everything, ha ving a
rem edy for every em ergency a nd fixed rules for a pplying it.89

Ma chia velli—in contra s t to Locke, Ros s ea u a nd Mill—s ought to incorpora te into the cons titution a
regula rized s ys tem of s ta ndby em ergency powers to be invoked with s uitable checks a nd controls in
tim e of national da nger. He attem pted forthrightly to m eet the problem of com bining a ca pa cious
res erve of power a nd s peed a nd vigor in its a pplica tion in tim e of em ergency, with effective
cons titutional res tra ints .90

Contem pora ry politica l theoris ts , a ddres s ing them s elves to the problem of res pons e to em ergency by
cons titutional dem ocra cies , ha ve employed the doctrine of cons titutiona l dicta tors hip.91 Frederick M.
Wa tkins s a w “no reas on why abs olutis m s hould not be us ed as a means for the defens e of liberal
ins titutions ,” provided it “s erves to protect es tablis hed ins titutions 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 elem ents of the problem of em ergency governa nce,
a s well a s all cons titutiona l governa nce: increas ing adminis trative powers of the executive, while at
the s ame time”impos ing limitation upon that power.”93 Watkins pla ced his rea l faith in a s chem e of
cons titutional dicta tors hip. Thes e a re the conditions of s ucces s of s uch a dicta tors hip: “The period of
dictators hip mus t be relatively s hort…Dictators hip s hould always be s trictly le gitimate in
character…Final authority to determine the need for dictators hip in any given cas e mus t never res t
with the dictator hims elf…”94 a nd the objective of s uch a n em ergency dictators hip s hould be “s trict
political cons ervatis m.”
Ca rl J . Friedrich ca s t his a na lys is in term s s im ila r to thos e of Wa tkins .95 “It is a problem of
concentra ting power—in a governm ent where power ha s cons cious ly been divided—to cope with…
s itua tions of unprecedented ma gnitude a nd gra vity. There m us t be a broa d gra nt of powers , s ubject to
equa lly s trong limita tions a s to who s ha ll exercis e s uch powers , when, for how long, a nd to wha t
end.”96 Friedrich, too, offered criteria for judging the a dequa cy of a ny of s chem e of em ergency powers ,
to wit: “The emergency executive m us t be appointed by cons titutional means —i.e., he mus t be
legitimate; he s hould not enjoy power to determine the exis tence of an emergency; emergency
powers s hould be exercis ed under a s trict time limitation; and las t, the objective of emergency a ction
mus t be the defens e of the cons titutional order.”97

Clinton L. Ros s iter, after s urveying the his tory of the em ploym ent of em ergency powers in Grea t Brita in,
Fra nce, Weim a r, Germ a ny a nd the United States , reverted to a des cription of a s cheme of
“cons titutiona l dicta tors hip” a s s olution to the vexing problem s pres ented by em ergency. 98 Like
Wa tkins a nd Friedrich, he s ta ted a priori the conditions of s ucces s of the “cons titutiona l dicta tors hip,”
thus :

1) No genera l regim e or pa rticula r ins titution of cons titutiona l dicta tors hip s hould be initia ted unles s it
is neces s a ry or even indis pens a ble to the pres erva tion of the State a nd its cons titutiona l order…

2) …the decis ion to ins titute a cons titutiona l dicta tors hip s hould never be in the ha nds of the m a n or
m en who will cons titute the dicta tor…

3) No governm ent s hould initia te a cons titutiona l dicta tors hip without ma king s pecific provis ions for
its term ination…

4) …a ll us es of emergency powers a nd a ll rea djus tm ents in the orga niza tion of the governm ent s hould
be effected in purs uit of cons titutiona l or lega l requirem ents …

5) …no dicta toria l ins titution s hould be a dopted, no right inva ded, no regula r procedure a ltered a ny
m ore tha n is a bs olutely neces s a ry for the conques t of the pa rticula r cris is . . .

6) The m ea s ures a dopted in the pros ecution of the a cons titutiona l dicta tors hip s hould never be
perm a nent in cha ra cter or effect…

7) The dicta tors hip s hould be ca rried on by pers ons repres entative of every pa rt of the citizenry
interes ted in the defens e of the exis ting cons titutiona l order. . .

8.) Ultim ate res pons ibility s hould be m a inta ined for every a ction ta ken under a cons titutiona l
dicta tors hip. . .

9) The decis ion to term inate a cons titutiona l dicta tors hip, like the decis ion to ins titute one s hould never
be in the ha nds of the ma n or m en who cons titute the dictator. . .

10) No cons titutiona l dicta tors hip s hould extend beyond the term ination of the cris is for which it wa s
ins tituted…

11) …the term ination of the cris is m us t be followed by a com plete return as pos s ible to the politica l
a nd governm ental conditions exis ting prior to the initia tion of the cons titutiona l dicta tors hip…99

Ros s iter a ccorded to legis lature a fa r grea ter role in the overs ight exercis e of em ergency powers tha n
did Wa tkins . He would s ecure to Congres s fina l res pons ibility for decla ring the exis tence or term ination
of a n emergency, a nd he pla ces grea t fa ith in the effectivenes s of congres s iona l inves tigating
com m ittees .100

Scott a nd Cotter, in a nalyzing the a bove contem pora ry theories in light of recent experience, were one
in s a ying tha t, “the s ugges tion that democracies s urrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not bas ed upon s ound cons titutional theory.”
To a ppra is e em ergency power in term s of cons titutiona l dictators hip s erves m erely to dis tort the
problem a nd hinder rea lis tic a nalys is . It m a tters not whether the term “dictator” is us ed in its norm a l
s ens e (a s applied to a uthorita ria n rulers ) or is em ployed to em bra ce a ll chief executives a dm inis tering
em ergency powers . However us ed, “cons titutiona l dicta tors hip” ca nnot be divorced from the
im plica tion of s us pens ion of the proces s es of cons titutiona lis m . Thus , they fa vored ins tea d the
“concept of cons titutiona lis m ” a rticulated by Cha rles H. McIlwa in:

A concept of cons titutiona lis m which is les s m is lea ding in the a na lys is of problem s of em ergency
powers , a nd which is cons is tent with the findings of this s tudy, is tha t form ula ted by Cha rles H.
McIlwa in. While it does not by a ny m eans neces s a rily exclude s om e indetermina te limita tions upon the
s ubs ta ntive powers of governm ent, full em pha s is is pla ced upon procedural limitations , a nd political
res pons ibility. McIlwa in clea rly recognized the need to repos e a dequate power in governm ent. And in
dis cus s ing the m ea ning of cons titutiona lis m , he ins is ted tha t the his torical and proper tes t of
cons titutionalis m was the exis tence of adequate proces s es for keeping government res pons ible. He
refus ed to equa te cons titutiona lis m with the enfeebling of governm ent by a n exaggera ted em pha s is
upon s epa ra tion of powers a nd s ubs tantive limitations on governm enta l power. He found tha t the really
effective checks on des potis m ha ve cons is ted not in the wea kening of governm ent but, but ra ther in
the limiting of it; between which there is a great a nd very s ignifica nt difference. In as s ociating
cons titutionalis m with “limited” as dis tinguis hed from “weak” government, McIlwain meant
government limited to the orderly procedure of law as oppos ed to the proces s es of force. The two
fundamental correlative elements of cons titutionalis m for which all lovers of liberty mus t yet fight
are the legal limits to arbitrary power and a complete political res pons ibility of government to the
governed.101

In the fina l a na lys is , the va rious a pproa ches to em ergency of the a bove politica l theoris ts —from Lock’s
“theory of preroga tive,” to Watkins ’ doctrine of “cons titutional dicta tors hip” a nd, eventua lly, to
McIlwa in’s “principle of cons titutionalis m ”—ultima tely a im to s olve one rea l problem in em ergency
governa nce, i.e., that of allotting increas ing areas of dis cretionary power to the Chief Executive, while
ins uring that s uch powers will be exercis ed with a s ens e of political res pons ibility and under effective
limitations and checks .

Our Cons titution ha s fa irly coped with this problem . Fres h from the fetters of a repres s ive regim e, the
1986 Cons titutiona l Comm is s ion, in dra fting the 1987 Cons titution, endea vored to crea te a governm ent
in the concept of J us tice J a cks on’s “ba la nced power s tructure.”102 Executive, legis lative, a nd judicia l
powers a re dis pers ed to the Pres ident, the Congres s , a nd the Suprem e Court, res pectively. Ea ch is
s uprem e within its own s phere. But none has the monopoly of power in times of emergency. Each
branch is given a role to s erve as limitation or check upon the other. This s ys tem does not weaken the
Pres ident, it jus t limits his power, us ing the la ngua ge of McIlwa in. In other words , in tim es of em ergency,
our Cons titution rea s ona bly dema nds that we repos e a certa in a m ount of fa ith in the ba s ic integrity
a nd wis dom of the Chief Executive but, a t the s a m e tim e, it obliges him to operate within carefully
pres cribed procedural limitations .

a. “Facial Challenge ”

Petitioners contend that PP 1017 is void on its fa ce beca us e of its “overbrea dth.” They claim that its
enforcem ent encroa ched on both unprotected a nd protected rights under Section 4, Article III of the
Cons titution a nd s ent a “chilling effect” to the citizens .

A fa cia l review of PP 1017, us ing the overbrea dth doctrine, is unca lled for.

Firs t and foremos t, the overbrea dth doctrine is a n a na lytica l tool developed for tes ting “on their fa ces ”
s ta tutes in free s peech cas es , a ls o known under the Am erica n La w a s Firs t Am endm ent ca s es .103

A plain rea ding of PP 1017 s hows tha t it is not prima rily directed to s peech or even s peech-rela ted
conduct. It is a ctua lly a call upon the AFP to prevent or s uppres s a ll form s of lawles s violence. In United
States v. Salerno,104 the US Suprem e Court held that “we have not recognized an ‘overbreadth’ doctrine
outs ide the limited context of the Firs t Amendment” (freedom of s peech).

Moreover, the overbrea dth doctrine is not intended for tes ting the validity of a la w tha t “reflects
legitima te s ta te interes t in m aintaining com prehens ive control over ha rm ful, cons titutiona lly
unprotected conduct.” Undoubtedly, la wles s violence, ins urrection a nd rebellion a re cons idered
“ha rm ful” a nd “cons titutiona lly unprotected conduct.” In Broadrick v. Oklahoma,105 it wa s held:
It rem a ins a ‘ma tter of no little difficulty’ to determ ine when a la w ma y properly be held void on its fa ce
a nd when ‘s uch s um m a ry a ction’ is inappropria te. But the plain import of our cas es is , at the very leas t,
that facial overbreadth adjudication is an exception to our traditional rules of practice and that its
function, a limited one at the outs et, attenuates as the otherwis e unprotecte d behavior that it forbids
the State to s anction moves from ‘pure s peech’ toward conduct a nd that conduct—even if
expres s ive—falls within the s cope of otherwis e valid criminal laws that reflect legitimate s ta te
interes ts in maintaining comprehens ive controls over harmful, cons titutionally unprotected conduct.

Thus , cla im s of fa cial overbreadth a re enterta ined in ca s es involving s ta tutes which, by their terms ,
s eek to regula te only “s poken words ” a nd a ga in, that “overbreadth claims , if entertained at all, have
been curtailed when invoked a gains t ordinary criminal laws that are s ought to be applied to protected
conduct.”106 Here, the incontrovertible fa ct rem a ins that PP 1017 pertains to a s pectrum of conduct,
not free s peech, which is m a nifes tly s ubject to s tate regula tion.

Second, fa cial inva lidation of la ws is cons idered a s “manifes tly s trong medicine,” to be us ed “s paringly
and only as a las t res ort,” a nd is “generally dis favored;”107 The rea s on for this is obvious . Embedded in
the tra ditiona l rules governing cons titutiona l a djudica tion is the principle tha t a pers on to whom a la w
m a y be a pplied will not be hea rd to cha llenge a la w on the ground tha t it ma y conceiva bly be a pplied
uncons titutiona lly to others , i.e., in other s ituations not before the Court. 108 A writer a nd s chola r in
Cons titutional La w expla ins further:

The mos t dis tinctive feature of the overbreadth te chnique is that it marks an exception to s ome of
the us ual rules of cons titutional litigation. Ordinarily, a particular litigant claims that a s tatute is
uncons titutional as applied to him or her; if the litigant prevails , the courts carve away the
uncons titutional as pects of the law by invalidating its improper applications on a cas e to cas e bas is .
Moreover, challengers to a law are not permitted to rais e the rights of third parties and can only as s ert
their own interes ts . In overbreadth analys is , thos e rules give way; challenges are permitted to rais e
the rights of third parties ; a nd the court inva lida tes the entire s ta tute “on its fa ce,” not m erely “a s
a pplied for” s o tha t the overbroa d la w becom es unenforcea ble until a properly a uthorized court
cons trues it m ore na rrowly. The fa ctor tha t m otivates courts to depa rt from the norm al adjudica tory
rules is the concern with the “chilling;” deterrent effect of the overbroa d s ta tute on third pa rties not
coura geous enough to bring s uit. The Court a s s umes tha t a n overbroa d la w’s “very exis tence m a y
ca us e others not before the court to refra in from cons titutiona lly protected s peech or expres s ion.” An
overbrea dth ruling is des igned to remove tha t deterrent effect on the s peech of thos e third pa rties .

In other words , a fa cial cha llenge us ing the overbreadth doctrine will require the Court to exa mine PP
1017 a nd pinpoint its fla ws a nd defects , not on the ba s is of its a ctual operation to petitioners , but on
the a s s um ption or prediction that its very exis tence m a y ca us e others not before the Court to refra in
from cons titutionally protected s peech or expres s ion. In Younger v. Harris ,109 it wa s held that:

[T]he ta s k of a na lyzing a propos ed s tatute, pinpointing its deficiencies , a nd requiring correction of thes e
deficiencies before the s ta tute is put into effect, is ra rely if ever a n a ppropria te ta s k for the judicia ry.
The com bina tion of the relative remotenes s of the controvers y, the impact on the legis lative proces s
of the relief s ought, a nd above all the s peculative and amorphous nature of the required line-by-line
analys is of detailed s tatutes ,…ordina rily res ults in a kind of ca s e tha t is wholly uns atis factory for
deciding cons titutional ques tions , whichever wa y they m ight be decided.

And third, a fa cia l cha llenge on the ground of overbrea dth is the m os t difficult challenge to m ount
s ucces s fully, s ince the challenger m us t es ta blis h tha t there can be no ins tance when the as s ailed law
may be valid. Here, petitioners did not even a ttem pt to s how whether this s itua tion exis ts .

Petitioners likewis e s eek a fa cia l review of PP 1017 on the ground of va guenes s . This , too, is
unwa rra nted.

Rela ted to the “overbrea dth” doctrine is the “void for va guenes s doctrine” which holds tha t “a law is
facially invalid if men of common intelligence mus t neces s arily gues s at its meaning and differ as to
its application.“110 It is s ubject to the s a m e principles governing overbrea dth doctrine. For one, it is a ls o
a n a na lytica l tool for tes ting “on their fa ces ” s tatutes in free s peech cas es . And like overbrea dth, it is
s a id that a litiga nt ma y cha llenge a s tatute on its fa ce only if it is vague in all its pos s ible applications .
Again, petitioners did not even attem pt to s how that PP 1017 is vague in all its application. They als o
fa iled to es ta blis h tha t m en of com mon intelligence ca nnot unders ta nd the m ea ning a nd a pplica tion
of PP 1017.

b. Cons titutional Bas is of PP 1017

Now on the cons titutiona l foundation of PP 1017.

The opera tive portion of PP 1017 ma y be divided into three im porta nt provis ions , thus :

Firs t provis ion:

“by virtue of the power ves ted upon m e by Section 18, Artilce VII …do he reby com m a nd the Arm ed
Forces of the Philippines , to ma inta in la w a nd order throughout the Philippines , prevent or s uppres s a ll
form s of la wles s violence as well a ny a ct of ins urrection or rebellion”

Second provis ion:

“a nd to enforce obedience to a ll the laws a nd to a ll decrees , orders a nd regula tions prom ulga ted by m e
pers ona lly or upon m y direction;”

Third provis ion:

“a s provided in Section 17, Article XII of the Cons titution do hereby decla re a State of Na tional
Em ergency.”

Firs t Provis ion: Calling-out Power

The firs t provis ion perta ins to the Pres ident’s ca lling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. J us tice Da nte O. Tinga , held tha t Section 18, Article VII of the
Cons titution reproduced a s follows :

Sec. 18. The Pres ident s ha ll be the Com m a nder-in-Chief of all a rm ed forces of the Philippines
a nd whenever it becom es neces s ary, he may call out s uch armed force s to prevent or s uppres s
lawles s violence, invas ion or rebellion. In ca s e of inva s ion or rebellion, when the public s a fety requires
it, he m a y, for a period not exceeding s ixty da ys , s us pend the privilege of the writ of habeas corpus or
pla ce the Philippines or a ny pa rt thereof under m a rtia l la w. Within forty-eight hours from the
procla m a tion of ma rtial la w or the s us pens ion of the privilege of the writ of habeas corpus , the
Pres ident s hall s ubm it a report in pers on or in writing to the Congres s . The Congres s , voting jointly, by
a vote of at lea s t a m a jority of all its Mem bers in regula r or s pecial s es s ion, ma y revoke s uch
procla m a tion or s us pens ion, which revoca tion s ha ll not be s et a s ide by the Pres ident. Upon the
initia tive of the Pres ident, the Congres s m a y, in the s am e ma nner, extend s uch procla m a tion or
s us pens ion for a period to be determ ined by the Congres s , if the inva s ion or rebellion s hall pers is t a nd
public s afety requires it.

The Congres s , if not in s es s ion, s ha ll within twenty-four hours following s uch procla ma tion or
s us pens ion, convene in a ccorda nce with its rules without need of a ca ll.

The Suprem e Court m a y review, in a n a ppropriate proceeding filed by a ny citizen, the s ufficiency of the
fa ctua l ba s es of the proclam a tion of m a rtia l la w or the s us pens ion of the privilege of the writ or the
extens ion thereof, a nd m us t prom ulgate its decis ion thereon within thirty days from its filing.

A s ta te of ma rtial la w does not s us pend the opera tion of the Cons titution, nor s uppla nt the functioning
of the civil courts or legis la tive a s s em blies , nor a uthorize the conferm ent of juris diction on m ilita ry
courts a nd a gencies over civilia ns where civil courts a re a ble to function, nor a utom a tica lly s us pend
the privilege of the writ.

The s us pens ion of the privilege of the writ s ha ll apply only to pers ons judicially cha rged for rebellion or
offens es inherent in or directly connected with inva s ion.
During the s us pens ion of the privilege of the writ, a ny pers on thus a rres ted or deta ined s ha ll be judicia lly
cha rged within three da ys , otherwis e he s ha ll be relea s ed.

gra nts the Pres ident, a s Comm a nder-in-Chief, a “s equence” of gra dua ted powers . From the m os t to the
lea s t benign, thes e a re: the ca lling-out power, the power to s us pend the privilege of the writ of habeas
corpus , a nd the power to decla re Ma rtia l La w. Citing Integrated Bar of the Philippines v. Zamora,112 the
Court ruled tha t the only criterion for the exercis e of the calling-out power is tha t “whenever it becomes
neces s ary,” the Pres ident m a y ca ll the a rm ed forces “to prevent or s uppres s lawles s violence, invas ion
or rebellion.” Are thes e conditions pres ent in the ins tant cas es ? As s ta ted ea rlier, cons idering the
circum s ta nces then preva iling, Pres ident Arroyo found it neces s a ry to is s ue PP 1017. Owing to her
Office’s va s t intelligence network, s he is in the bes t pos ition to determine the a ctua l condition of the
country.

Under the ca lling-out power, the Pres ident ma y s um m on the a rm ed forces to a id him in
s uppres s ing lawles s violence, invas ion and rebellion. This involves ordina ry police a ction. But every
a ct tha t goes beyond the Pres ident’s ca lling-out power is cons idered illega l or ultra vires . For this rea s on,
a Pres ident m us t be ca reful in the exercis e of his powers . He ca nnot invoke a greater power when he
wis hes to a ct under a les s er power. There lies the wis dom of our Cons titution, the grea ter the power,
the greater a re the lim ita tions .

It is pertinent to s tate, however, that there is a dis tinction between the Pres ident’s a uthority to decla re
a “s tate of rebellion” (in Sanlakas ) a nd the a uthority to procla im a s ta te of na tional em ergency. While
Pres ident Arroyo’s a uthority to de cla re a “s ta te of rebellion” em a nates from her powers a s Chief
Executive, the s ta tutory a uthority cited in Sanlakas wa s Section 4, Cha pter 2, Book II of the Revis ed
Adm inis tra tive Code of 1987, which provides :

SEC. 4. – Procla m ations . – Acts of the Pres ident fixing a da te or decla ring a s ta tus or condition of
public m om ent or interes t, upon the exis tence of which the opera tion of a s pecific la w or regula tion is
m a de to depend, s ha ll be prom ulgated in procla m ations which s ha ll ha ve the force of a n executive
order.

Pres ident Arroyo’s decla ra tion of a “s ta te of rebellion” wa s m erely a n a ct decla ring a s ta tus or condition
of public m om ent or interes t, a decla ra tion allowed under Section 4 cited above. Such decla ration, in
the words of Sanlakas , is ha rm les s , without lega l s ignifica nce, a nd deemed not written. In thes e ca s es ,
PP 1017 is m ore tha n tha t. In decla ring a s ta te of na tional em ergency, Pres ident Arroyo did not only
rely on Section 18, Article VII of the Cons titution, a provis ion ca lling on the AFP to prevent or s uppres s
la wles s violence, inva s ion or rebellion. She a ls o relied on Section 17, Article XII, a provis ion on the
Sta te’s extra ordina ry power to ta ke over priva tely-owned public utility a nd bus ines s a ffected with public
interes t. Indeed, PP 1017 ca lls for the exercis e of a n awes ome power. Obvious ly, s uch Procla m ation
ca nnot be deemed ha rmles s , without lega l s ignifica nce, or not written, a s in the ca s e of Sanlakas .

Som e of the petitioners vehem ently ma intain tha t PP 1017 is a ctually a declara tion of Ma rtia l La w. It is
no s o. Wha t defines the cha ra cter of PP 1017 a re its wordings . It is plain therein tha t what the Pres ident
invoked wa s her ca lling-out power.

The decla ra tion of Ma rtia l La w is a “wa rn[ing] to citizens that the m ilita ry power ha s been ca lled upon
by the executive to a s s is t in the m aintena nce of la w a nd order, a nd tha t, while the em ergency la s ts ,
they m us t, upon pain of a rres t a nd punis hm ent, not com m it a ny a cts which will in a ny wa y render m ore
difficult the res tora tion of order a nd the enforcem ent of la w.”113

In his “Statement before the Senate Committee on J us tice” on Ma rch 13, 2006, Mr. J us tice Vicente V.
Mendoza ,114 a n a uthority in cons titutiona l la w, s a id that of the three powers of the Pres ident a s
Com m a nder-in-Chief, the power to decla re Ma rtia l La w pos es the m os t s evere threa t to civil liberties .
It is a s trong m edicine which s hould not be res orted to lightly. It ca nnot be us ed to s tifle or pers ecute
critics of the governm ent. It is pla ced in the keeping of the Pres ident for the purpos e of ena bling him
to s ecure the people from ha rm a nd to res tore order s o tha t they ca n enjoy their individual freedom s .
In fa ct, Section 18, Art. VII, provides :

A s ta te of ma rtial la w does not s us pend the opera tion of the Cons titution, nor s uppla nt the functioning
of the civil courts or legis la tive a s s em blies , nor a uthorize the conferm ent of juris diction on m ilita ry
courts a nd a gencies over civilia ns where civil courts a re a ble to function, nor a utom a tica lly s us pend
the privilege of the writ.

J us tice Mendoza als o s tated tha t PP 1017 is not a decla ration of Ma rtia l Law. It is no m ore tha n a ca ll
by the Pres ident to the a rm ed forces to prevent or s uppres s la wles s violence. As s uch, it ca nnot be
us ed to jus tify a cts that only under a va lid decla ra tion of Ma rtia l La w ca n be done. Its us e for a ny other
purpos e is a pervers ion of its nature a nd s cope, a nd a ny a ct done contra ry to its com m a nd is ultra vires .

J us tice Mendoza further s ta ted that s pecifica lly, (a ) a rres ts a nd s eizures without judicia l wa rra nts ; (b)
ba n on public a s s em blies ; (c) ta ke-over of news m edia a nd a gencies a nd pres s cens ors hip; a nd (d)
is s ua nce of Pres identia l Decrees , a re powers which ca n be exercis ed by the Pres ident a s Com ma nder-
in-Chief only where there is a va lid decla ra tion of Ma rtia l La w or s us pens ion of the writ of habeas
corpus .

Ba s ed on the a bove dis quis ition, it is clea r that PP 1017 is not a decla ration of Ma rtial La w. It is merely
an exercis e of Pres ident Arroyo’s calling-out power for the a rm ed forces to a s s is t her in preventing or
s uppres s ing la wles s violence.

Second Provis ion: “Take Care” Power

The s econd provis ion perta ins to the power of the Pres ident to ens ure tha t the la ws be fa ithfully
executed. This is ba s ed on Section 17, Article VII which rea ds :

SEC. 17. The Pres ident s ha ll ha ve control of a ll the executive depa rtm ents , burea us , a nd offices . He
s hall ens ure that the laws be faithfully executed.

As the Executive in whom the executive power is ves ted,115 the prim a ry function of the Pres ident is to
enforce the la ws a s well a s to form ulate policies to be em bodied in exis ting la ws . He s ees to it tha t a ll
la ws a re enforced by the officials a nd em ployees of his depa rtm ent. Before a s s um ing office, he is
required to ta ke a n oa th or a ffirma tion to the effect tha t a s Pres ident of the Philippines , he will, a m ong
others , “execute its la ws .”116 In the exercis e of s uch function, the Pres ident, if needed, m a y em ploy the
powers a tta ched to his office a s the Com m a nder-in-Chief of all the a rm ed forces of the
country,117 including the Philippine Na tional Police 118 under the Depa rtm ent of Interior a nd Loca l
Governm ent.119

Petitioners , es pecially Repres entatives Fra ncis J os eph G. Es cudero, Sa tur Oca m po, Ra fa el Ma ria no,
Teodoro Ca s iño, Liza Ma za , a nd J os el Vira dor a rgue that PP 1017 is uncons titutiona l a s it a rroga ted
upon Pres ident Arroyo the power to ena ct la ws a nd decrees in violation of Section 1, Article VI of the
Cons titution, which ves ts the power to ena ct la ws in Congres s . They a s s ail the cla us e “to enforce
obedience to all the laws and to all decrees , orders and regulations promulgated by me pers onally or
upon my direction.”

Petitioners ’ contention is unders ta nda ble. A rea ding of PP 1017 operative cla us e s hows tha t it wa s
lifted 120 from Form er Pres ident Ma rcos ’ Procla m a tion No. 1081, which pa rtly rea ds :

NOW, THEREFORE, I, FERDINAND E. MARCOS, Pres ident of the Philippines by virtue of the powers
ves ted upon me by Article VII, Section 10, Pa ragra ph (2) of the Cons titution, do hereby pla ce the entire
Philippines a s defined in Article 1, Section 1 of the Cons titution under ma rtia l la w a nd, in m y ca pa city
a s their Com ma nder-in-Chief, do hereby command the Armed Forces of the Philippines , to maintain
law and order throughout the Philippines , prevent or s uppres s all forms of lawles s violence as well as
any act of ins urrection or rebellion and to enforce obedience to all the laws and decrees , orders and
regulations promulgated by me pers onally or upon my direction.

We a ll know that it wa s PP 1081 which gra nted Pres ident Ma rcos legis la tive power. Its ena bling cla us e
s ta tes : “to enforce obedience to all the laws and decre es , orders and regulations promulgated by me
pers onally or upon my direction.” Upon the other ha nd, the ena bling cla us e of PP 1017 is s ued by
Pres ident Arroyo is : to enforce obedience to all the laws and to all de cree s , orders and regulations
promulgated by me pers onally or upon my direction.”

Is it within the domain of Pres ident Arroyo to promulgate “decrees “?

PP 1017 s tates in pa rt: “to enforce obedience to all the la ws a nd decrees x x x promulgated by me
pers onally or upon my direction.“

The Pres ident is gra nted a n Ordina nce Power under Cha pter 2, Book III of Executive Order No. 292
(Adm inis tra tive Code of 1987). She ma y is s ue a ny of the following:

Sec. 2. Executive Orders . —Acts of the Pres ident providing for rules of a genera l or perma nent cha ra cter
in implem entation or execution of cons titutiona l or s tatutory powers s ha ll be prom ulgated in executive
orders .

Sec. 3. Adminis trative Orders. —Acts of the Pres ident which rela te to pa rticula r a s pect of governm ental
opera tions in purs ua nce of his duties a s a dm inis trative hea d s ha ll be prom ulgated in a dm inis trative
orders .

Sec. 4. Proclamations . — Acts of the Pres ident fixing a da te or decla ring a s ta tus or condition of public
m om ent or interes t, upon the exis tence of which the opera tion of a s pecific la w or regula tion is m a de
to depend, s ha ll be prom ulgated in procla m a tions which s ha ll ha ve the force of a n executive order.

Sec. 5. Memorandum Orders . — Acts of the Pres ident on m a tters of adm inis tra tive detail or of
s ubordina te or tem pora ry interes t which only concern a pa rticula r officer or office of the Governm ent
s ha ll be embodied in mem ora ndum orders .

Sec. 6. Memorandum Circulars . — Acts of the Pres ident on ma tters rela ting to interna l a dminis tration,
which the Pres ident des ires to bring to the a ttention of a ll or s om e of the depa rtm ents , a gencies ,
burea us or offices of the Governm ent, for inform ation or com plia nce, s hall be embodied in
m em ora ndum circula rs .

Sec. 7. General or Special Orders . — Acts a nd com m a nds of the Pre s ident in his ca pa city a s
Com m a nder-in-Chief of the Arm ed Forces of the Philippines s ha ll be is s ued as genera l or s pecia l orders .

Pres ident Arroyo’s ordina nce power is lim ited to the foregoing is s ua nces . She ca nnot
is s ue decrees s im ila r to thos e is s ued by Form er Pres ident Ma rcos under PP 1081. Pres identia l
Decrees a re la ws which a re of the s am e ca tegory a nd binding force a s s tatutes beca us e they were
is s ued by the Pres ident in the exercis e of his legis la tive power during the period of Ma rtia l La w under
the 1973 Cons titution.121

This Court rules that the as s ailed PP 1017 is uncons titutional ins ofar as it grants Pres ident Arroyo
the authority to promulgate “decre e s .” Legis la tive power is peculia rly within the province of the
Legis lature. Section 1, Article VI ca tegorica lly s ta tes tha t “[t]he legis lative power s hall be ves ted in the
Congres s of the Philippines which s hall cons is t of a Senate and a Hous e of Repres entatives .” To be
s ure, neither Ma rtial La w nor a s ta te of rebellion nor a s ta te of em ergency ca n jus tify Pres ident Arroyo’s
exercis e of legis la tive power by is s uing decrees .

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

As this Court s ta ted ea rlier, Pres ident Arroyo ha s no a uthority to ena ct decrees . It follows tha t thes e
decrees a re void a nd, therefore, ca nnot be enforced. With res pect to “la ws ,” s he ca nnot call the m ilita ry
to enforce or im plem ent certa in la ws , s uch a s cus tom s la ws , la ws governing fa m ily a nd property
rela tions , la ws on obligations a nd contra cts a nd the like. She ca n only order the m ilita ry, under PP 1017,
to enforce la ws pertinent to its duty to s uppres s lawles s violence.

Third Provis ion: Power to Take Over

The pertinent provis ion of PP 1017 s tates :

x x x a nd to enforce obedience to a ll the la ws a nd to a ll decrees , orders , a nd regula tions prom ulga ted
by m e pers ona lly or upon m y direction; and as provided in Section 17, Article XII of the Cons titution
do hereby declare a s tate of national emergency.
The import of this provis ion is that Pres ident Arroyo, during the s tate of nationa l em ergency under PP
1017, ca n ca ll the milita ry not only to enforce obedience “to a ll the la ws a nd to a ll decrees x x x” but
a ls o to a ct purs ua nt to the provis ion of Section 17, Article XII which rea ds :

Sec. 17. In tim es of national emergency, when the public interes t s o requires , the Sta te ma y, during the
em ergency a nd under rea s onable term s pres cribed by it, tem pora rily ta ke over or direct the operation
of a ny priva tely-owned public utility or bus ines s a ffected with public interes t.

What could be the reas on of Pres ident Arroyo in invoking the above provis ion when s he is s ued PP 1017?

The a ns wer is s imple. During the exis tence of the s ta te of na tiona l em ergency, PP 1017 purports to
gra nt the Pres ident, without a ny a uthority or delega tion from Congres s , to ta ke over or direct the
opera tion of a ny priva tely-owned public utility or bus ines s a ffected with public interes t.

This provis ion wa s firs t introduced in the 1973 Cons titution, a s a product of the “m a rtia l la w” thinking
of the 1971 Cons titutiona l Convention.122 In effect a t the tim e of its a pprova l wa s Pres ident Ma rcos ’
Letter of Ins truction No. 2 da ted Septem ber 22, 1972 ins tructing the Secreta ry of National Defens e to
ta ke over “the management, control and operation of the Manila Electric Company, the Philippine Long
Dis tance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways , the Philippine Air Lines , Air Manila (and) Filipinas Orient Airways . . . for the s ucces s ful
pros ecution by the Government of its effort to contain, s olve and end the pres ent national emergency.“

Petitioners , pa rticula rly the mem bers of the Hous e of Repres enta tives , claim tha t Pres ident Arroyo’s
inclus ion of Section 17, Article XII in PP 1017 is a n encroa chm ent on the legis lature’s em ergency
powers .

This is a n a rea tha t needs delinea tion.

A dis tinction m us t be dra wn between the Pres ident’s a uthority to declare “a s ta te of nationa l
em ergency” a nd to exercis e em ergency powers . To the firs t, a s elucidated by the Court, Section 18,
Article VII gra nts the Pres ident s uch power, hence, no legitim ate cons titutiona l objection ca n be ra is ed.
But to the s econd, ma nifold cons titutiona l is s ues a ris e.

Section 23, Article VI of the Cons titution rea ds :

SEC. 23. (1) The Congres s , by a vote of two-thirds of both Hous es in joint s es s ion a s s em bled, voting
s epa ra tely, s hall ha ve the s ole power to declare the exis tence of a s tate of war.

(2) In tim es of wa r or other national emergency, the Congres s m a y, by la w, a uthorize the Pres ident, for
a lim ited period a nd s ubject to s uch res trictions a s it ma y pres cribe, to exercis e powers neces s a ry a nd
proper to ca rry out a decla red na tiona l policy. Unles s s ooner withdra wn by res olution of the Congres s ,
s uch powers s ha ll cea s e upon the next a djournm ent thereof.

It m a y be pointed out tha t the s econd pa ra gra ph of the above provis ion refers not only to wa r but a ls o
to “other national emergency.” If the intention of the Fram ers of our Cons titution wa s to withhold from
the Pres ident the a uthority to decla re a “s ta te of na tional em ergency” purs ua nt to Section 18, Article
VII (ca lling-out power) a nd gra nt it to Congres s (like the decla ra tion of the exis tence of a s ta te of wa r),
then the Fra mers could ha ve provided s o. Clea rly, they did not intend tha t Congres s s hould firs t
a uthorize the Pres ident before he ca n decla re a “s ta te of nationa l em ergency.” The logica l conclus ion
then is tha t Pres ident Arroyo could va lidly decla re the exis tence of a s ta te of na tional em ergency even
in the abs ence of a Congres s ional enactm ent.

But the exercis e of em ergency powers , s uch a s the ta king over of priva tely owned public utility or
bus ines s a ffected with public interes t, is a different m atter. This requires a delegation from Congres s .

Courts ha ve often s a id tha t cons titutiona l provis ions in pari materia a re to be cons trued together.
Otherwis e s tated, different cla us es , s ections , a nd provis ions of a cons titution which rela te to the s a me
s ubject m a tter will be cons trued together a nd cons idered in the light of ea ch other.123 Cons idering
tha tSection 17 of Article XII a nd Section 23 of Article VI, previous ly quoted, relate to na tiona l
em ergencies , they m us t be rea d together to determ ine the lim itation of the exercis e of emergency
powers .

Generally, Congres s is the repos itory of emergency powers . This is evident in the tenor of Section 23
(2), Article VI a uthorizing it to delegate s uch powers to the Pres ident. Certainly, a body cannot delegate
a power not repos ed upon it. However, knowing that during gra ve em ergencies , it ma y not be pos s ible
or pra ctica ble for Congres s to m eet and exercis e its powers , the Fra m ers of our Cons titution deem ed
it wis e to allow Congres s to gra nt emergency powers to the Pres ident, s ubject to certa in conditions ,
thus :

(1) There m us t be a war or other emergency.

(2) The delega tion m us t be for a limited period only.

(3) The delega tion m us t be s ubject to s uch res trictions as the Congres s may pres cribe.

(4) The em ergency powers m us t be exercis ed to carry out a national policy decla red by Congres s .124

Section 17, Article XII m us t be unders tood a s a n a s pect of the em ergency powers cla us e. The ta king
over of priva te bus ines s a ffected with public interes t is jus t a nother fa cet of the em ergency powers
genera lly repos ed upon Congres s . Thus , when Section 17 s ta tes tha t the “the State may, during the
emergency and under reas onable terms pres cribed by it, temporarily take over or direct the operation
of any privately owned public utility or bus ines s affected with public intere s t,” it refers to Congres s ,
not the Pres ident. Now, whether or not the Pres ident ma y exercis e s uch power is dependent on whether
Congres s m a y delega te it to him purs ua nt to a la w pres cribing the rea s ona ble term s
thereof. Youngs town Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clea r tha t if the Pres ident ha d a uthority to is s ue the order he did, it m us t be found in s om e provis ion
of the Cons titution. And it is not claimed that expres s cons titutiona l la ngua ge gra nts this power to the
Pres ident. The contention is tha t pres identia l power s hould be im plied from the a ggrega te of his
powers under the Cons titution. Pa rticula r relia nce is pla ced on provis ions in Article II which s a y tha t
“The executive Power s ha ll be ves ted in a Pres ident . . . .;” tha t “he s ha ll take Ca re tha t the La ws be
fa ithfully executed;” a nd tha t he “s ha ll be Com m a nder-in-Chief of the Arm y a nd Na vy of the United
Sta tes .

The order ca nnot properly be s us ta ined a s a n exercis e of the Pres ident’s m ilita ry power a s Com m a nder-
in-Chief of the Arm ed Forces . The Governm ent a ttempts to do s o by citing a num ber of ca s es upholding
broa d powers in milita ry com m a nders enga ged in da y-to-da y fighting in a thea ter of wa r. Such ca s es
need not concern us here. Even though “theater of war” be an expanding concept, we cannot with
faithfulnes s to our cons titutional s ys tem hold that the Commander-in-Chief of the Armed Forces has
the ultimate power as s uch to take pos s es s ion of private property in order to keep labor dis putes from
s topping production. This is a job for the nation’s lawmakers , not for its military authorities .

Nor can the s eizure order be s us tained becaus e of the s e veral cons titutional provis ions that grant
executive power to the Pres ident. In the framework of our Cons titution, the Pres ident’s power to s e e
that the laws are faithfully executed refutes the idea that he is to be a lawmaker.The Cons titution
limits his functions in the lawmaking proces s to the recommending of laws he thinks wis e and the
vetoing of laws he thinks bad. And the Cons titution is neither s ilent nor equivocal about who s hall
make laws which the Pres ident is to execute. The firs t s ection of the firs t article s ays that “All
legis lative Powers herein granted s ha ll be ves ted in a Congres s of the United States . . .”126

Petitioner Cacho-Olivares, et al. contends tha t the term “em ergency” under Se ction 17, Article XII refers
to “ts unami,” “typhoon,” “hurricane” a nd “s imilar occurrences .”This is a lim ited view of “em ergency.”

Em ergency, a s a generic term , connotes the exis tence of conditions s uddenly intens ifying the degree
of exis ting da nger to life or well-being beyond tha t which is a ccepted as norm a l. Im plicit in this
definitions a re the elements of intens ity, va riety, a nd perception.127 Emergencies , a s perceived by
legis la ture or executive in the United Sa tes s ince 1933, ha ve been occa s ioned by a wide ra nge of
s itua tions , cla s s ifia ble under three (3) principal heads : a)economic,128 b)natural
dis as ter,129 a nd c)national s ecurity.130
“Em ergency,” a s contem plated in our Cons titution, is of the s am e breadth. It m a y include rebellion,
econom ic cris is , pes tilence or epidem ic, typhoon, flood, or other s im ila r ca ta s trophe of na tionwide
proportions or effect.131 This is evident in the Records of the Cons titutional Com m is s ion, thus :

MR. GASCON. Yes . Wha t is the Com m ittee’s definition of “na tional emergency” which a ppea rs in
Section 13, page 5? It rea ds :

When the com m on good s o requires , the Sta te m a y tempora rily ta ke over or direct the opera tion of a ny
priva tely owned public utility or bus ines s a ffected with public interes t.

MR. VILLEGAS. Wha t I m ea n is threa t from external aggres s ion, for exam ple, calamities or natural
dis as ters .

MR. GASCON. There is a ques tion by Com m is s ioner de los Reyes . What a bout s trikes a nd riots ?

MR. VILLEGAS. Strikes , no; thos e would not be covered by the term “na tiona l em ergency.”

MR. BENGZON. Unles s they a re of s uch proportions s uch that they would pa ra lyze governm ent
s ervice.132

xxxxxx

MR. TINGSON. Ma y I a s k the com m ittee if “na tiona l emergency” refers to military national
emergency or could this be economic emergency?”

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

MR. TINGSON. Tha nk you very m uch.133

It m a y be a rgued tha t when there is na tional em ergency, Congres s m a y not be a ble to convene a nd,
therefore, una ble to delega te to the Pres ident the power to ta ke over priva tely-owned public utility or
bus ines s a ffected with public interes t.

In Araneta v. Dinglas an,134 this Court em pha s ized that legis la tive power, through which extra ordina ry
m ea s ures a re exercis ed, rema ins in Congres s even in tim es of cris is .

“x x x

After a ll the criticis m s tha t ha ve been m a de a ga ins t the efficiency of the s ys tem of the s epa ration of
powers , the fa ct rem ains that the Cons titution ha s s et up this form of governm ent, with a ll its defects
a nd s hortcom ings , in preference to the com m ingling of powers in one m a n or group of m en. The Filipino
people by adopting pa rlia menta ry governm ent ha ve given notice that they s ha re the faith of other
dem ocra cy-loving peoples in this s ys tem , with a ll its fa ults , a s the idea l. The point is , under this
fra m ework of governm ent, legis lation is pres erved for Congres s a ll the tim e, not excepting periods of
cris is no ma tter how s erious . Never in the his tory of the United States , the ba s ic fea tures of whos e
Cons titution ha ve been copied in ours , ha ve s pecific functions of the legis la tive bra nch of ena cting
la ws been s urrendered to a nother depa rtm ent—unles s we rega rd a s legis la ting the ca rrying out of a
legis la tive policy a ccording to pres cribed s ta nda rds ; no, not even when that Republic wa s fighting a
tota l wa r, or when it wa s enga ged in a life-a nd-dea th s truggle to pres erve the Union. The truth is that
under our concept of cons titutional governm ent, in tim es of extrem e perils m ore tha n in norm a l
circum s ta nces ‘the va rious bra nches , executive, legis lative, a nd judicial,’ given the a bility to a ct, a re
ca lled upon ‘to perform the duties a nd dis cha rge the res pons ibilities com mitted to them res pectively.”

Following our interpreta tion of Section 17, Article XII, invoked by Pres ident Arroyo in is s uing PP 1017,
this Court rules that s uch Procla m ation does not a uthorize her during the em ergency to tem pora rily
ta ke over or direct the opera tion of a ny priva tely owned public utility or bus ines s a ffected with public
interes t without a uthority from Congres s .

Let it be em pha s ized that while the Pres ident a lone ca n decla re a s tate of na tiona l em ergency, however,
without legis la tion, he ha s no power to ta ke over priva tely-owned public utility or bus ines s a ffected with
public interes t. The Pres ident ca nnot decide whether exceptional circum s tances exis t wa rra nting the
ta ke over of priva tely-owned public utility or bus ines s a ffected with public interes t. Nor ca n he
determ ine when s uch exceptional circum s ta nces ha ve cea s ed. Likewis e, without legis lation, the
Pres ident ha s no power to point out the types of bus ines s es a ffected with public interes t tha t s hould
be ta ken over. In s hort, the Pres ident ha s no a bs olute a uthority to exercis e a ll the powers of the Sta te
under Section 17, Article VII in the a bs ence of a n em ergency powers a ct pa s s ed by Congres s .

c. “AS APPLIED CHALLENGE”

One of the m is fortunes of a n em ergency, pa rticula rly, tha t which perta ins to s ecurity, is tha t milita ry
neces s ity a nd the gua ra nteed rights of the individual a re often not compa tible. Our his tory revea ls that
in the crucible of conflict, m a ny rights a re curta iled a nd tra m pled upon. Here, the right agains t
unreas onable s earch and s eizure; the right agains t warrantles s arres t; a nd the freedom of s peech, of
expres s ion, of the pres s , and of as s embly under the Bill of Rights s uffered the grea tes t blow.

Of the s even (7) petitions , three (3) indica te “direct injury.”

In G.R. No. 171396, petitioners Da vid and Lla m a s a lleged tha t, on Februa ry 24, 2006, they were a rres ted
without wa rra nts on their wa y to EDSA to celebra te the 20th Annivers a ry of People Power I. The
a rres ting officers cited PP 1017 a s bas is of the a rres t.

In G.R. No. 171409, petitioners Ca cho-Oliva res a nd Tribune Publis hing Co., Inc. cla im ed tha t on
Februa ry 25, 2006, the CIDG opera tives “ra ided a nd ra ns a cked without wa rra nt” their office. Three
policem en were as s igned to gua rd their office a s a pos s ible “s ource of des ta biliza tion.” Aga in, the ba s is
wa s PP 1017.

And in G.R. No. 171483, petitioners KMU a nd NAFLU-KMU et al. a lleged tha t their mem bers were
“turned a wa y a nd dis pers ed” when they went to EDSA a nd la ter, to Aya la Avenue, to celebra te the 20th
Annivers a ry of People Power I.

A perus a l of the “direct injuries ” a llegedly s uffered by the s a id petitioners s hows that they res ulted from
the implementation, purs ua nt to G.O. No. 5, of PP 1017.

Can this Court adjudge as uncons titutional PP 1017 and G.O. No 5 on the bas is of thes e illegal acts ? In
genera l, does the illegal implementation of a law render it uncons titutional?

Settled is the rule tha t courts a re not at liberty to decla re s ta tutes invalid although they may be abus ed
and mis abus ed 135 a nd may afford an opportunity for abus e in the manner of application.136 The
va lidity of a s ta tute or ordina nce is to be determ ined from its general purpos e a nd its efficiency to
a ccom plis h the end des ired, not from its effects in a particular cas e.137 PP 1017 is m erely a n
invoca tion of the Pres ident’s ca lling-out power. Its genera l purpos e is to comm a nd the AFP to s uppres s
a ll form s of la wles s violence, inva s ion or rebellion. It ha d a ccom plis hed the end des ired which
prom pted Pres ident Arroyo to is s ue PP 1021. But there is nothing in PP 1017 a llowing the police,
expres s ly or im pliedly, to conduct illega l a rres t, s ea rch or viola te the citizens ’ cons titutional rights .

Now, m a y this Court a djudge a la w or ordina nce uncons titutiona l on the ground tha t its im plem entor
com m itted illegal a cts ? The a ns wer is no. The criterion by which the va lidity of the s ta tute or ordina nce
is to be m ea s ured is the es s entia l bas is for the exercis e of power, and not a mere incidental res ult
aris ing from its exertion.138 This is logica l. J us t im agine the abs urdity of s itua tions when la ws m a ybe
decla red uncons titutional jus t beca us e the officers im plem enting them ha ve a cted a rbitra rily. If this
were s o, judging from the blunders com m itted by policemen in the ca s es pa s s ed upon by the Court,
m a jority of the provis ions of the Revis ed Penal Code would ha ve been decla red uncons titutiona l a long
tim e a go.

Pres ident Arroyo is s ued G.O. No. 5 to ca rry into effect the provis ions of PP 1017. Genera l orders a re
“a cts a nd com ma nds of the Pres ident in his ca pa city a s Comm a nder-in-Chief of the Arm ed Forces of
the Philippines .” They a re interna l rules is s ued by the executive officer to his s ubordina tes precis ely for
the proper a nd efficient adminis tration of law. Such rules a nd regula tions crea te no rela tion except
between the official who is s ues them a nd the officia l who receives them .139 They a re ba s ed on a nd a re
the product of, a relations hip in which power is their s ource, a nd obedience, their object.140 For thes e
rea s ons , one requirem ent for thes e rules to be va lid is that they m us t be reas onable, not arbitrary or
capricious .

G.O. No. 5 m a ndates the AFP a nd the PNP to im mediately ca rry out the “neces s ary and appropriate
actions and meas ures to s uppres s and prevent acts of terroris m and lawles s violence.”

Unlike the term “la wles s violence” which is una rgua bly exta nt in our s ta tutes a nd the Cons titution, a nd
which is inva ria bly a s s ociated with “inva s ion, ins urrection or rebellion,” the phra s e “a cts of terroris m ”
is s till a n am orphous a nd vague concept. Congres s ha s yet to ena ct a la w defining a nd punis hing a cts
of terroris m .

In fa ct, this “definitional predicam ent” or the “a bs ence of a n a greed definition of terroris m ” confronts
not only our country, but the interna tiona l com m unity a s well. The following obs erva tions a re quite
a propos :

In the a ctua l unipola r context of interna tiona l relations , the “fight a ga ins t terroris m ” ha s becom e one
of the ba s ic s loga ns when it com es to the jus tifica tion of the us e of force a ga ins t certa in s tates a nd
a ga ins t groups operating internationa lly. Lis ts of s ta tes “s pons oring terroris m ” a nd of terroris t
orga niza tions a re s et up a nd cons ta ntly being updated a ccording to criteria tha t a re not a lwa ys known
to the public, but a re clea rly determ ined by s tra tegic interes ts .

The ba s ic problem underlying a ll thes e m ilita ry a ctions —or threa ts of the us e of force a s the m os t
recent by the United Sta tes a ga ins t Iraq—cons is ts in the a bs ence of a n a greed definition of terroris m .

Rem a rka ble confus ion pers is ts in regard to the lega l ca tegorization of a cts of violence either by s ta tes ,
by a rm ed groups s uch a s libera tion movem ents , or by individuals .

The dilem m a ca n by s umm a rized in the s a ying “One country’s terroris t is a nother country’s freedom
fighter.” The a ppa rent contra diction or la ck of cons is tency in the us e of the term “terroris m ” m a y further
be dem ons tra ted by the his torical fa ct that lea ders of na tiona l libera tion movem ents s uch a s Nels on
Ma ndela in South Africa, Habib Bourgouiba in Tunis ia , or Ahm ed Ben Bella in Algeria , to m ention only
a few, were originally la beled a s terroris ts by thos e who controlled the territory a t the tim e, but later
beca m e interna tiona lly res pected s ta tes m en.

Wha t, then, is the defining criterion for terroris t a cts —the differentia s pecifica dis tinguis hing thos e a cts
from eventua lly legitim ate a cts of na tiona l res is ta nce or s elf-defens e?

Since the tim es of the Cold Wa r the United Na tions Orga niza tion ha s been trying in va in to rea ch a
cons ens us on the ba s ic is s ue of definition. The orga niza tion ha s intens ified its efforts recently, but ha s
been una ble to bridge the gap between thos e who a s s ocia te “terroris m ” with a ny violent a ct by non-
s ta te groups a ga ins t civilia ns , s ta te functiona ries or infra s tructure or m ilita ry ins ta lla tions , a nd thos e
who believe in the concept of the legitim ate us e of force when res is ta nce aga ins t foreign occupa tion
or a ga ins t s ys tem atic oppres s ion of ethnic a nd/ or religious groups within a s ta te is concerned.

The dilem m a fa cing the interna tiona l com m unity ca n bes t be illus tra ted by reference to the
contra dicting ca tegoriza tion of orga nizations a nd m ovem ents s uch a s Pa les tine Liberation
Orga niza tion (PLO)—which is a terroris t group for Is ra el a nd a libera tion m ovem ent for Ara bs a nd
Mus lim s —the Ka s hmiri res is ta nce groups —who a re terroris ts in the perception of India , libera tion
fighters in tha t of Pa kis ta n—the ea rlier Contra s in Nica ra gua —freedom fighters for the United Sta tes ,
terroris ts for the Socia lis t ca mp—or, m os t dra s tica lly, the Afgha ni Muja hedeen (la ter to becom e the
Ta liba n m ovem ent): during the Cold Wa r period they were a group of freedom fighters for the Wes t,
nurtured by the United States , a nd a terroris t ga ng for the Soviet Union. One could go on a nd on in
enum era ting exa m ples of conflicting ca tegorizations tha t ca nnot be reconciled in a ny wa y—beca us e
of oppos ing politica l interes ts tha t a re a t the roots of thos e perceptions .

How, then, ca n thos e contra dicting definitions a nd conflicting perceptions and evalua tions of one a nd
the s a m e group a nd its a ctions be explained? In our a na lys is , the ba s ic rea s on for thes e s triking
incons is tencies lies in the divergent interes t of s ta tes . Depending on whether a s ta te is in the pos ition
of a n occupying power or in that of a riva l, or a dvers a ry, of a n occupying power in a given territory, the
definition of terroris m will “fluctuate” a ccordingly. A s ta te ma y eventually s ee its elf a s protector of the
rights of a certa in ethnic group outs ide its territory a nd will therefore s pea k of a “libera tion s truggle,”
not of “terroris m ” when a cts of violence by this group a re concerned, a nd vice-vers a .

The United Nations Orga niza tion ha s been una ble to rea ch a decis ion on the definition of terroris m
exa ctly beca us e of thes e conflicting interes ts of s overeign s ta tes tha t determ ine in ea ch a nd every
ins ta nce how a pa rticula r a rm ed m ovem ent (i.e. a non-s ta te a ctor) is labeled in rega rd to the terroris ts -
freedom fighter dichotom y. A “policy of double s ta nda rds ” on this vita l is s ue of interna tiona l a ffa irs
ha s been the una voida ble cons equence.

This “definitiona l predica ment” of a n orga niza tion cons is ting of s overeign s ta tes —a nd not of peoples ,
in s pite of the em pha s is in the Pream ble to the United Na tions Cha rter!—ha s becom e even m ore s erious
in the pres ent globa l power cons tella tion: one s uperpower exercis es the decis ive role in the Security
Council, form er grea t powers of the Cold Wa r era a s well a s medium powers a re increa s ingly being
m a rginalized; a nd the problem ha s becom e even m ore a cute s ince the terroris t a tta cks of 11
Septem ber 2001 I the United Sta tes .141

The a bs ence of a la w defining “a cts of terroris m ” m a y res ult in a bus e a nd oppres s ion on the pa rt of the
police or milita ry. An illus tra tion is when a group of pers ons a re m erely enga ged in a drinking s pree.
Yet the m ilita ry or the police m a y cons ider the a ct a s a n a ct of terroris m a nd im media tely a rres t them
purs ua nt to G.O. No. 5. Obvious ly, this is a bus e a nd oppres s ion on their pa rt. It m us t be rem em bered
tha t a n a ct ca n only be cons idered a crim e if there is a la w defining the s am e a s s uch a nd im pos ing the
corres ponding pena lty thereon.

So fa r, the word “terroris m ” a ppea rs only once in our crim ina l la ws , i.e., in P.D. No. 1835 da ted J a nua ry
16, 1981 ena cted by Pres ident Ma rcos during the Ma rtial La w regime. This decree is entitled “Codifying
The Va rious La ws on Anti-Subvers ion a nd Increa s ing The Penalties for Mem bers hip in Subvers ive
Orga niza tions .” The word “terroris m ” is m entioned in the following provis ion: “That one who cons pires
with a ny other pers on for the purpos e of overthrowing the Governm ent of the Philippines x x x by force,
violence, terroris m, x x x s hall be punis hed by reclus ion temporal x x x.”

P.D. No. 1835 wa s repea led by E.O. No. 167 (which outla ws the Com m unis t Pa rty of the Philippines )
ena cted by Pres ident Cora zon Aquino on Ma y 5, 1985. Thes e two (2) la ws , however, do not define “a cts
of terroris m .” Since there is no la w defining “a cts of terroris m ,” it is Pres ident Arroyo a lone, under G.O.
No. 5, who ha s the dis cretion to determ ine wha t a cts cons titute terroris m . Her judgm ent on this a s pect
is a bs olute, without res trictions . Cons equently, there ca n be indis crim inate a rres t without wa rra nts ,
brea king into offices a nd res idences , ta king over the m edia enterpris es , prohibition a nd dis pers al of a ll
a s s em blies a nd gatherings unfriendly to the a dm inis tra tion. All thes e ca n be effected in the nam e of
G.O. No. 5. Thes e a cts go fa r beyond the ca lling-out power of the Pres ident. Certa inly, they viola te the
due proces s cla us e of the Cons titution. Thus , this Court decla res that the “a cts of terroris m ” portion of
G.O. No. 5 is uncons titutional.

Significa ntly, there is nothing in G.O. No. 5 a uthorizing the milita ry or police to com m it a cts beyond
wha t a re neces s ary and appropriate to s uppres s and prevent lawles s violence, the lim ita tion of their
a uthority in purs uing the Order. Otherwis e, s uch a cts a re cons idered illega l.

We firs t exa m ine G.R. No. 171396(David et al.)

The Cons titution provides tha t “the right of the people to be s ecured in their pers ons , hous es , pa pers
a nd effects a gains t unrea s ona ble s ea rch a nd s eizure of whatever nature a nd for a ny purpos e s ha ll
be inviolable, a nd no s ea rch wa rra nt or warrant of arres t s ha ll is s ue except upon proba ble ca us e to be
determ ined pers ona lly by the judge a fter exa m ina tion under oa th or a ffirma tion of the com plaina nt a nd
the witnes s es he ma y produce, a nd particula rly des cribing the pla ce to be s ea rched a nd the pers ons or
things to be s eized.”142 The pla in im port of the la ngua ge of the Cons titution is tha t s ea rches , s eizures
a nd a rres ts a re normally unrea s onable unles s a uthorized by a va lidly is s ued s ea rch wa rra nt or wa rra nt
of a rres t. Thus , the funda mental protection given by this provis ion is tha t between pers on a nd police
m us t s ta nd the protective a uthority of a m a gis trate clothed with power to is s ue or refus e to is s ue
s ea rch wa rra nts or wa rra nts of a rres t.143

In the Brief Account 144 s ubm itted by petitioner Da vid, certa in fa cts a re es ta blis hed: firs t, he wa s
a rres ted without wa rra nt; s econd, the PNP opera tives a rres ted him on the ba s is of PP 1017; third, he
wa s brought a t Ca mp Ka ringa l, Quezon City where he wa s fingerprinted, photogra phed a nd booked like
a crim inal s us pect; fourth,he wa s treated brus quely by policem en who “held his hea d a nd tried to pus h
him ” ins ide a n unm a rked ca r; fifth, he wa s cha rged with Viola tion of Batas Pambans a Bilang No.
880 145 a nd Inciting to Sedition; s ixth, he wa s deta ined for s even (7) hours ; a nd s eventh,he wa s
eventua lly relea s ed for ins ufficiency of evidence.

Section 5, Rule 113 of the Revis ed Rules on Crim inal Procedure provides :

Sec. 5. Arres t without warrant; when lawful. – A pea ce officer or a priva te pers on m a y, without a wa rra nt,
a rres t a pers on:

(a) When, in his pres ence, the pers on to be a rres ted ha s com m itted, is a ctua lly com mitting, or is
a ttem pting to com mit a n offens e.

(b) When a n offens e ha s jus t been com m itted a nd he ha s proba ble ca us e to believe bas ed on pers onal
knowledge of fa cts or circum s ta nces tha t the pers on to be a rres ted ha s comm itted it; a nd

x x x.

Neither of the two (2) exceptions m entioned a bove jus tifies petitioner Da vid’s wa rra ntles s a rres t.
During the inques t for the cha rges of inciting to s editiona nd violation of BP 880, a ll tha t the a rres ting
officers could invoke was their obs erva tion tha t s om e ra llyis ts were wea ring t-s hirts with the
invective “Ous t Gloria Now” a nd their erroneous a s s um ption tha t petitioner Da vid wa s the lea der of the
ra lly.146 Cons equently, the Inques t Pros ecutor ordered his imm edia te relea s e on the ground of
ins ufficiency of evidence. He noted tha t petitioner Da vid wa s not wea ring the s ubject t-s hirt a nd even
if he wa s wea ring it, s uch fa ct is ins ufficient to cha rge him with inciting to s edition. Further, he als o
s ta ted that there is ins ufficient evidence for the cha rge of violation of BP 880 a s it was not even known
whether petitioner Da vid wa s the lea der of the ra lly.147

But wha t m a de it doubly wors e for petitioners Da vid et al. is tha t not only wa s their right a ga ins t
wa rra ntles s a rres t violated, but als o their right to pea ceably a s s em ble.

Section 4 of Article III gua ra ntees :

No la w s ha ll be pa s s ed abridging the freedom of s peech, of expres s ion, or of the pres s , or the right of
the people pea cea bly to a s s em ble a nd petition the governm ent for redres s of grieva nces .

“As s em bly” m ea ns a right on the pa rt of the citizens to m eet pea cea bly for cons ulta tion in res pect to
public a ffairs . It is a neces s a ry cons equence of our republica n ins titution and com plements the right
of s peech. As in the ca s e of freedom of expres s ion, this right is not to be lim ited, m uch les s denied,
except on a s howing of a clear and pres ent danger of a s ubs ta ntive evil that Congres s ha s a right to
prevent. In other words , like other rights em bra ced in the freedom of expres s ion, the right to a s s em ble
is not s ubject to previous res traint or cens ors hip. It ma y not be conditioned upon the prior is s ua nce of
a perm it or a uthoriza tion from the governm ent a uthorities except, of cours e, if the a s s em bly is intended
to be held in a public pla ce, a perm it for the us e of s uch pla ce, a nd not for the a s s em bly its elf, m a y be
va lidly required.

The ringing truth here is that petitioner Da vid, et al. were a rres ted while they were exercis ing their right
to pea ceful a s s em bly. They were not com m itting a ny crim e, neither wa s there a s howing of a clea r a nd
pres ent da nger that wa rra nted the limitation of tha t right. As ca n be glea ned from circum s ta nces , the
cha rges of inciting to s edition a nd violation of BP 880 were m ere a fterthought. Even the Solicitor
Genera l, during the ora l a rgum ent, fa iled to jus tify the a rres ting officers ’ conduct. In De J onge v.
Oregon,148 it wa s held tha t pea cea ble a s s em bly ca nnot be ma de a crim e, thus :

Pea cea ble a s s em bly for la wful dis cus s ion ca nnot be m a de a crime. The holding of m eetings for
pea cea ble politica l a ction ca nnot be pros cribed. Thos e who a s s is t in the conduct of s uch m eetings
ca nnot be bra nded a s crim ina ls on tha t s core. The ques tion, if the rights of free s peech a nd pea ceful
a s s em bly a re not to be pres erved, is not a s to the a us pices under which the m eeting wa s held but a s
to its purpos e; not a s to the relations of the s pea kers , but whether their uttera nces tra ns cend the
bounds of the freedom of s peech which the Cons titution protects . If the pers ons a s s em bling ha ve
com m itted crim es els ewhere, if they ha ve form ed or a re enga ged in a cons pira cy a ga ins t the public
pea ce a nd order, they m a y be pros ecuted for their cons pira cy or other viola tions of va lid la ws . But it is
a different matter when the State, ins tead of pros ecuting them for s uch offens es , s eizes upon mere
participation in a peaceable as s embly and a lawful public dis cus s ion as the bas is for a criminal charge.

On the ba s is of the a bove principles , the Court likewis e cons iders the dis pers a l a nd a rres t of the
m em bers of KMU et al. (G.R. No. 171483) unwa rra nted. Appa rently, their dis pers a l wa s done m erely on
the ba s is of Ma la ca ña ng’s directive canceling a ll permits previous ly is s ued by loca l governm ent units .
This is a rbitra ry. The wholes ale ca ncella tion of a ll perm its to ra lly is a blata nt dis rega rd of the principle
tha t “freedom of as s embly is not to be limited, much les s denied, except on a s howing of a clear and
pres ent danger of a s ubs tantive e vil that the State has a right to prevent.”149 Tolera nce is the rule a nd
limitation is the exception. Only upon a s howing tha t a n a s s embly pres ents a clea r a nd pres ent da nger
tha t the State m a y deny the citizens ’ right to exercis e it. Indeed, res pondents fa iled to s how or convince
the Court tha t the ra llyis ts com m itted a cts a m ounting to la wles s violence, inva s ion or rebellion. With
the bla nket revoca tion of permits , the dis tinction between protected a nd unprotected a s s emblies wa s
elimina ted.

Moreover, under BP 880, the a uthority to regulate a s s emblies a nd rallies is lodged with the loca l
governm ent units . They ha ve the power to is s ue perm its a nd to revoke s uch perm its after due notice
and hearing on the determ ination of the pres ence of clea r a nd pres ent da nger. Here, petitioners were
not even notified a nd hea rd on the revoca tion of their permits .150 The firs t tim e they lea rned of it wa s
a t the tim e of the dis pers a l. Such a bs ence of notice is a fa ta l defect. When a pers on’s right is res tricted
by governm ent a ction, it behooves a dem ocra tic governm ent to s ee to it tha t the res triction is fa ir,
rea s ona ble, a nd a ccording to procedure.

G.R. No. 171409,(Ca cho-Oliva res , et al.) pres ents a nother fa cet of freedom of s peech i.e., the freedom
of the pres s . Petitioners ’ na rra tion of fa cts , which the Solicitor Genera l failed to refute, es ta blis hed the
following: firs t, the Daily Tribune’s offices were s ea rched without wa rra nt;second, the police operatives
s eized s everal m a teria ls for publica tion; third, the s ea rch wa s conducted at a bout 1:00 o’ clock in the
m orning of Februa ry 25, 2006; fourth, the s ea rch wa s conducted in the abs ence of a ny officia l of
the Daily Tribune except the s ecurity gua rd of the building; a nd fifth, policemen s ta tioned them s elves at
the vicinity of the Daily Tribune offices .

Therea fter, a wa ve of wa rning ca m e from governm ent officia ls . Pres identia l Chief of Sta ff Micha el
Defens or wa s quoted a s s a ying tha t s uch ra id wa s “meant to s how a ‘s trong pres ence,’ to tell m edia
outlets not to connive or do anything that would help the rebels in bringing down this
government.” Director Genera l Lom iba o further s ta ted tha t “if they do not follow the s tandards —and
the s tandards are if they would contribute to ins tability in the government, or if they do not s ubs cribe
to what is in General Order No. 5 and Proc. No. 1017—we will recommend a ‘takeover.’” Na tional
Telecom m unications Com m is s ioner Rona ld Solis urged televis ion a nd ra dio networks
to “cooperate“ with the governm ent for the duration of the s ta te of national em ergency. He warned that
his agency will not hes ita te to re commend the clos ure of any broadcas t outfit that violates rules s e t
out for media coverage during times when the national s ecurity is threatened.151

The s ea rch is illegal. Rule 126 of The Revis ed Rules on Crim ina l Procedure la ys down the s teps in the
conduct of s ea rch a nd s eizure. Section 4 requires tha t a s earch warrant be is s ued upon proba ble
ca us e in connection with one s pecific offence to be determ ined pers ona lly by the judge a fter
exa mina tion under oa th or a ffirm ation of the com pla ina nt a nd the witnes s es he m a y produce. Section
8 m a nda tes that the s ea rch of a hous e, room , or a ny other prem is e be m ade in the pres ence of the
lawful occupant thereof or a ny m ember of his fam ily or in the abs ence of the la tter, in the pres ence of
two (2) witnes s es of s ufficient age a nd dis cretion res iding in the s a m e locality. And Section 9 s ta tes
tha t the wa rra nt m us t direct tha t it be s erved in the daytime, unles s the property is on the pers on or in
the pla ce ordered to be s ea rched, in which ca s e a direction m a y be ins erted tha t it be s erved a t a ny
tim e of the da y or night. All thes e rules were viola ted by the CIDG opera tives .

Not only that, the s ea rch violated petitioners ’ freedom of the pres s . The bes t ga uge of a free a nd
dem ocra tic s ociety res ts in the degree of freedom enjoyed by its m edia . In the Burgos v. Chief of
Staff152 this Court held tha t—
As heretofore s tated, the prem is es s earched were the bus ines s a nd printing offices of the “Metropolitan
Mail” a nd the “We Forum” news pa pers . As a cons equence of the s ea rch a nd s eizure, thes e premis es
were padlocked and s ealed, with the further res ult that the printing and publication of s aid
news papers were dis continued.

Such clos ure is in the nature of previous res traint or cens ors hip abhorrent to the freedom of the pres s
guaranteed under the fundamental law, and cons titutes a virtual denial of petitioners ’ freedom to
expres s thems elves in print. This s tate of being is patently anathema tic to a democratic framework
where a free, alert and even militant pres s is es s ential for the political enlightenment and growth of
the citizenry.

While a dmittedly, the Daily Tribune was not pa dlocked a nd s ea led like the “Metropolitan Mail” a nd “We
Forum” news pa pers in the above ca s e, yet it ca nnot be denied tha t the CIDG opera tives exceeded their
enforcem ent duties . The s ea rch a nd s eizure of m aterials for publica tion, the s ta tioning of policem en in
the vicinity of the The Daily Tribune offices , a nd the a rroga nt wa rning of governm ent officials to m edia,
a re pla in cens ors hip. It is tha t officious functiona ry of the repres s ive governm ent who tells the citizen
tha t he m a y s pea k only if a llowed to do s o, a nd no m ore a nd no les s tha n wha t he is perm itted to s a y
on pa in of punis hm ent s hould he be s o ra s h a s to dis obey.153 Undoubtedly, the The Daily Tribune wa s
s ubjected to thes e a rbitra ry intrus ions beca us e of its a nti-governm ent s entim ents . This Court ca nnot
tolera te the bla ta nt dis rega rd of a cons titutiona l right even if it involves the mos t defia nt of our citizens .
Freedom to com m ent on public a ffairs is es s ential to the vita lity of a repres enta tive dem ocra cy. It is
the duty of the courts to be wa tchful for the cons titutional rights of the citizen, a nd a gains t a ny s tea lthy
encroa chm ents thereon. The m otto s hould a lwa ys be obs ta principiis .154

Incidenta lly, during the ora l a rgum ents , the Solicitor General a dmitted that the s ea rch of
the Tribune’s offices a nd the s eizure of its m a teria ls for publica tion a nd other pa pers a re illega l; a nd
tha t the s am e a re ina dmis s ible “for a ny purpos e,” thus :

J USTICE CALLEJ O:

You m a de quite a m outhful of a dmis s ion when you s a id that the policem en, when ins pected the Tribune
for the purpos e of gathering evidence a nd you a dm itted that the policemen were a ble to get the
clippings . Is that not in adm is s ion of the a dm is s ibility of thes e clippings tha t were ta ken from the
Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the la w they would s eem to be, if they were illega lly s eized, I think a nd I know, Your Honor, a nd
thes e a re ina dmis s ible for a ny purpos e.155

xxxxxxxxx

SR. ASSO. J USTICE PUNO:

Thes e ha ve been publis hed in the pa s t is s ues of the Da ily Tribune; a ll you ha ve to do is to get thos e
pa s t is s ues . So why do you ha ve to go there a t 1 o’clock in the m orning a nd without a ny s ea rch wa rra nt?
Did they becom e s uddenly pa rt of the evidence of rebellion or inciting to s edition or wha t?

SOLGEN BENIPAYO:

Well, it wa s the police tha t did tha t, Your Honor. Not upon m y ins tructions .

SR. ASSO. J USTICE PUNO:

Are you s a ying tha t the a ct of the policem a n is illega l, it is not ba s ed on a ny la w, a nd it is not ba s ed on
Procla m a tion 1017.

SOLGEN BENIPAYO:
It is not ba s ed on Procla ma tion 1017, Your Honor, beca us e there is nothing in 1017 which s a ys that the
police could go a nd ins pect a nd ga ther clippings from Da ily Tribune or a ny other news pa per.

SR. ASSO. J USTICE PUNO:

Is it ba s ed on a ny la w?

SOLGEN BENIPAYO:

As fa r a s I know, no, Your Honor, from the fa cts , no.

SR. ASSO. J USTICE PUNO:

So, it ha s no ba s is , no lega l ba s is wha ts oever?

SOLGEN BENIPAYO:

Ma ybe s o, Your Honor. Ma ybe s o, tha t is why I s a id, I don’t know if it is premature to s a y this , we do not
condone this . If the people who have been injured by this would want to s ue them, they can s ue and
there are rem edies for this .156

Likewis e, the wa rra ntles s a rres ts a nd s eizures executed by the police were, a ccording to the Solicitor
Genera l, illegal a nd ca nnot be condoned, thus :

CHIEF J USTICE PANGANIBAN:

There s eem s to be s om e confus ions if not contra diction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will cla rify. The a cts , the s uppos ed illegal or unla wful a cts com m itted on the
occa s ion of 1017, a s I s a id, it cannot be condoned. You ca nnot bla m e the Pres ident for, a s you s a id, a
m is a pplica tion of the la w. Thes e a re acts of the police officers , tha t is their res pons ibility.157

The Dis s enting Opinion s ta tes tha t PP 1017 a nd G.O. No. 5 a re cons titutiona l in every a s pect a nd
“s hould res ult in no cons titutional or s ta tutory brea ches if a pplied a ccording to their letter.”

The Court ha s pa s s ed upon the cons titutiona lity of thes e is s ua nces . Its ra tiocination ha s been
exha us tively pres ented. At this point, s uffice it to reitera te that PP 1017 is lim ited to the ca lling out by
the Pres ident of the m ilita ry to prevent or s uppres s la wles s violence, invas ion or rebellion. When in
im plem enting its provis ions , purs ua nt to G.O. No. 5, the milita ry a nd the police com m itted a cts which
viola te the citizens ’ rights under the Cons titution, this Court ha s to decla re s uch a cts uncons titutional
a nd illega l.

In this connection, Chief J us tice Artem io V. Pa nga niba n’s concurring opinion, a tta ched hereto, is
cons idered a n integra l pa rt of this ponencia.

S UMMAT ION

In s um , the lifting of PP 1017 through the is s ua nce of PP 1021—a s upervening event—would ha ve

norm a lly rendered this ca s e m oot a nd a ca dem ic. However, while PP 1017 wa s s till operative, illega l
a cts were com m itted a llegedly in purs ua nce thereof. Bes ides , there is no gua ra ntee tha t PP 1017, or
one s im ila r to it, ma y not a ga in be is s ued. Alrea dy, there ha ve been m edia reports on April 30, 2006 that
a llegedly PP 1017 would be reim pos ed “if the Ma y 1 ra llies ” becom e “unruly a nd violent.” Cons equently,
the tra ns cendenta l is s ues ra is ed by the pa rties s hould not be “eva ded;” they m us t now be res olved to
prevent future cons titutional a berration.

The Court finds a nd s o holds tha t PP 1017 is cons titutiona l ins ofa r a s it cons titutes a call by the
Pres ident for the AFP to prevent or s uppres s lawles s violence. The procla m a tion is s us ta ined by
Section 18, Article VII of the Cons titution a nd the releva nt juris prudence dis cus s ed ea rlier. However, PP
1017’s extra neous provis ions giving the Pres ident expres s or im plied power (1) to is s ue decrees ; (2) to
direct the AFP to enforce obedience to all laws even thos e not rela ted to lawles s violence a s well a s
decrees prom ulgated by the Pres ident; a nd (3) to im pos e s ta nda rds on media or a ny form of prior
res tra int on the pres s , a re ultra vires and uncons titutional. The Court als o rules tha t under Section 17,
Article XII of the Cons titution, the Pres ident, in the a bs ence of a legis la tion, ca nnot ta ke over priva tely-
owned public utility a nd priva te bus ines s a ffected with public interes t.

In the s a m e vein, the Court finds G.O. No. 5 va lid. It is a n Order is s ued by the Pres ident—a cting a s
Com m a nder-in-Chief—a ddres s ed to s uba lterns in the AFP to ca rry out the provis ions of PP 1017.
Significa ntly, it als o provides a va lid s ta nda rd—tha t the m ilita ry a nd the police s hould ta ke only the
“neces s ary and appropriate actions and meas ures to s uppres s and prevent acts of lawles s
violence.”But the words “a cts of terroris m” found in G.O. No. 5 ha ve not been lega lly defined a nd ma de
punis ha ble by Congres s a nd s hould thus be deem ed deleted from the s a id G.O. While “terroris m ” ha s
been denounced genera lly in m edia, no la w ha s been ena cted to guide the m ilita ry, a nd eventua lly the
courts , to determ ine the limits of the AFP’s a uthority in ca rrying out this portion of G.O. No. 5.

On the ba s is of the releva nt a nd uncontes ted fa cts na rra ted ea rlier, it is a ls o pris tine clea r tha t (1) the
wa rra ntles s a rres t of petitioners Ra ndolf S. Da vid a nd Rona ld Llam a s ; (2) the dis pers a l of the ra llies
a nd wa rra ntles s a rres t of the KMU a nd NAFLU-KMU m em bers ; (3) the im pos ition of s ta nda rds on m edia
or a ny prior res tra int on the pres s ; a nd (4) the wa rra ntles s s ea rch of the Tribune offices a nd the
whim s ica l s eizures of s om e a rticles for publica tion a nd other m a teria ls , are not a uthorized by the
Cons titution, the la w a nd juris prudence. Not even by the valid provis ions of PP 1017 a nd G.O. No. 5.

Other tha n this decla ration of invalidity, this Court ca nnot im pos e a ny civil, crim ina l or a dm inis tra tive
s a nctions on the individua l police officers concerned. They ha ve not been individually identified a nd
given their da y in court. The civil com pla ints or ca us es of a ction a nd/ or releva nt crim inal Inform a tions
ha ve not been pres ented before this Court. Elem enta ry due proces s ba rs this Court from m a king a ny
s pecific pronouncem ent of civil, crim ina l or a dminis trative lia bilities .

It is well to remember that military power is a means to an end and s ubs tantive civil rights are ends
in thems elves . How to give the military the power it needs to protect the Republic without
unneces s arily trampling individual rights is one of the eternal balancing tas ks of a democratic
s tate.During em ergency, governm ental a ction m a y va ry in brea dth a nd intens ity from norm al times , yet
they s hould not be a rbitra ry a s to unduly res tra in our people’s liberty.

Perha ps , the vital les s on that we m us t lea rn from the theoris ts who s tudied the va rious com peting
politica l philos ophies is that, it is pos s ible to gra nt governm ent the a uthority to cope with cris es without
s urrendering the two vital principles of cons titutionalis m: the maintenance of legal limits to arbitrary
power, a nd political res pons ibility of the government to the governed.158

WHEREFORE, the Petitions a re pa rtly gra nted. The Court rules tha t PP 1017
is CONSTITUTIONAL ins ofa r a s it cons titutes a ca ll by Pres ident Gloria Ma ca pa gal-Arroyo on the
AFP to prevent or s uppres s lawles s violence. However, the provis ions of PP 1017 comm a nding the
AFP to enforce la ws not rela ted to la wles s violence, a s well a s decrees promulga ted by the Pres ident,
a re decla red UNCONSTITUTIONAL. In a ddition, the provis ion in PP 1017 decla ring national em ergency
under Section 17, Article VII of the Cons titution is CONSTITUTIONAL, but s uch decla ra tion does not
a uthorize the Pres ident to ta ke over priva tely-owned public utility or bus ines s a ffected with public
interes t without prior legis la tion.

G.O. No. 5 is CONSTITUTIONAL s ince it provides a s ta nda rd by which the AFP a nd the PNP s hould
im plem ent PP 1017, i.e. wha tever is “neces s ary and appropriate actions and meas ures to s uppres s
and prevent acts of lawles s violence .“ Cons idering tha t “a cts of terroris m ” ha ve not yet been defined
a nd m a de punis ha ble by the Legis la ture, s uch portion of G.O. No. 5 is decla red UNCONSTITUTIONAL.

The wa rra ntles s a rres t of Ra ndolf S. Da vid a nd Ronald Llam a s ; the dis pers a l a nd wa rra ntles s a rres t of
the KMU a nd NAFLU-KMU m em bers during their ra llies , in the a bs ence of proof tha t thes e petitioners
were com m itting a cts cons tituting lawles s violence, inva s ion or rebellion a nd viola ting BP 880; the
im pos ition of s ta nda rds on m edia or any form of prior res tra int on the pres s , a s well a s the wa rra ntles s
s ea rch of the Tribune offices a nd whim s ica l s eizure of its a rticles for publica tion a nd other ma teria ls ,
a re decla red UNCONSTITUTIONAL.
No cos ts .

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
As s ocia te J us tice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief J us tice

(On leave)
LEONARDO A. QUISUMBING
REYNATO S. PUNO
Asscociate Justice
Associate Justice
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Asscociate Justice
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Asscociate Justice
CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.
Associate Justice Asscociate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Asscociate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Asscociate Justice

PRESBITERO J . VELASCO, J R.
As s ocia te J us tice

C ERT IF IC AT ION

Purs ua nt to Section 13, Article VIII of the Cons titution, it is hereby certified tha t the conclus ions in the
a bove Decis ion were rea ched in cons ultation before the ca s e wa s a s s igned to the writer of the opinion
of the Court.

ARTEMIO V. PANGANIBAN
Chief J us tice