David Vs Arroyo

9/16/22, 10:26 PM [ G.R. NO.
171396, May 03, 2006 ]
522 Phil. 705
EN BANC
[ G.R. NO. 171396, May 03, 2006 ]
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL 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, RESPONDENTS.
G.R. NO. 171409
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
PETITIONERS, VS. HONORABLE SECRETARY EDUARDO ERMITA
AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO,
RESPONDENTS.
G.R. NO. 171485
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO
A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN
MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C.
NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, PETITIONERS, VS.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ,
JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO,
CHIEF PNP, RESPONDENTS.
G.R. NO. 171483
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS - KILUSANG MAYO
UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., 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, RESPONDENTS.
G.R. NO. 171400
ALTERNATIVE LAW GROUPS, INC. (ALG), PETITIONER, VS.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
https://elibrary.judiciary.gov.ph/search 1/65
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO,

RESPONDENTS.
G.R. NO. 171489
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY 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, RESPONDENTS.
G.R. NO. 171424
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,
RESPONDENTS.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1]
Superior strength - the use of force - cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government and
in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws
and actions that restrict fundamental rights come to the courts "with a heavy presumption
against their constitutional validity."[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of

the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by
virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes necessary, . . .
may call out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby declare a State
of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-
CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State - who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by

certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State - by obstructing

governance including hindering the growth of the economy and sabotaging the
people's confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists - the historical enemies
of the democratic Philippine State - and who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing

governance, including hindering the growth of the economy and sabotaging the
people's confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and

preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the

powers vested in me under the Constitution as President of the Republic of the
Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring
a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006,
which were issued on the basis of Proclamation No. 1017, the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), were directed to
maintain law and order throughout the Philippines, prevent and suppress all form of
lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled
the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the

Republic of the Philippines, by virtue of the powers vested in me by law, hereby
declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People's Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.[4] They considered the aim to
oust or assassinate the President and take-over the reigns of government as a clear and present
danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation
from petitioners' counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents' task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of
the issues.
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On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." [5]
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People's Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to his
arrest, Lt. San Juan announced through DZRH that the "Magdalo's D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino's brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group's plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army's elite Scout Ranger. Lim said "it was all systems
go for the planned movement against Arroyo."[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-
Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was
no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at
North Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and
police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the President's ouster is nearing its concluding stage in the first half of 2006.
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Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017
and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."
[11]
Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila
with the intention of converging at the EDSA shrine. Those who were already near the EDSA
site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen
used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used against
the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and
EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist.
Also arrested was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded
the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid
Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the standards - and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 - we will recommend a
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'takeover.'" National Telecommunications' Commissioner Ronald Solis urged television and

radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran's lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during
a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that
(1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or
"prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom
of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis
of the possibility of lawless violence and a showing that there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power
to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
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freedom of expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections
1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of
Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming
that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, including its
cognate rights such as freedom of the press and the right to access to information on matters of
public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this
regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents' Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people's right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),

171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal
standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
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The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps
these limitations there must be some authority competent to hold it in control,
to thwart its unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a "self-starting capacity."[23]
Courts may exercise such power only when the following requisites are present: first, there must
be an actual case or controversy; second, petitioners have to raise a question of constitutionality;
third, the constitutional question must be raised at the earliest opportunity; and fourth, the
decision of the constitutional question must be necessary to the determination of the case itself.
[24]
Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo's
issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,[26] so that a declaration thereon would be of no practical use or value.[27]
Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No.
5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an unconstitutional act
is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."[30]
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;[31] second, the exceptional character of the situation and
the paramount public interest is involved;[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;[33] and fourth,
the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public's
interest, involving as they do the people's basic rights to freedom of expression, of assembly and
of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the extent of the
protection given by constitutional guarantees.[35] And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary.[36] However,
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they failed to take into account the Chief Justice's very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.
II-Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question."[37] In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must
be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."[38] Succinctly put, the plaintiff's standing is
based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:[40] "In matter of mere public right, however...the people are
the real parties...It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan[41] held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43]
The same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,[44] it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result." The
Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,[45]
Manila Race Horse Trainers' Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,[49] where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec,[50] this Court resolved to pass upon the issues raised due to the "far-reaching
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implications" of the petition notwithstanding its categorical statement that petitioner therein
had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has
been observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that "given
the transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01"
involves the exercise of Congress' taxing or spending powers, it reiterated its ruling
in Bagong Alyansang Makabayan v. Zamora,[55] that in cases of transcendental
importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's attitude toward legal
standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a people's
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the

Court reiterated the "direct injury" test with respect to concerned citizens' cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.
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In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP in
Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful
search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest
of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60]
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of
Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v.
Philippine Amusement and Gaming Corporation,[63] and Tañada v. Tuvera,[64] that when the
issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.
In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential
injury which the IBP as an institution or its members may suffer as a consequence of the
issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the
Court held that the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case.
This is too general an interest which is shared by other groups and the whole citizenry.
However, in view of the transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition
as there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she
is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No.
5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
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Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,[67] may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from
any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only
one constitutes the executive branch and anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people[68] but he
may be removed from office only in the mode provided by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President's exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72]
Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the
line defining "political questions," particularly those questions "in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the
government."[75] Barcelon and Montenegro were in unison in declaring that the authority to
decide whether an exigency has arisen belongs to the President and his decision is final
and conclusive on the courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of checks and balances,
"under which the President is supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally
supreme."[76] In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77]
There, the Court was almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.[78] Then came Garcia-Padilla v.
Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter
case, ratiocinating that "in times of war or national emergency, the President must be given
absolute control for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and God."[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar to Lansang. While the Court considered the President's
"calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion." This ruling is mainly a result of the Court's reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in an appropriate
action the validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies involving rights which
are legally demandable and enforceable," but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
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any branch or instrumentality of the government." The latter part of the authority represents
a broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government.[81] It
speaks of judicial prerogative not only in terms of power but also of duty.[82]
As to how the Court may inquire into the President's exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President's
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down
is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the President's decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive
law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."[84] But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to
the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State...
It is wrong therefore to wish to make political institutions as strong as to render it

impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
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doubt about the general will, and it clear that the people's first intention is that the
State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."[88]
Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative. He
recognized and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-

constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.[89]
Machiavelli - in contrast to Locke, Rosseau and Mill - sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw "no reason why absolutism should not be used as
a means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life."[92] He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power."[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short...Dictatorship should always be strictly
legitimate in character...Final authority to determine the need for dictatorship in any
given case must never rest with the dictator himself..."[94] and the objective of such an
emergency dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] "It is a problem of
concentrating power - in a government where power has consciously been divided - to cope
with... situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."[96] Friedrich, too, offered criteria for judging the adequacy of any
of scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means - i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of the
constitutional order."[97]
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in
Great Britain, France, Weimar, Germany and the United States, reverted to a description of a
scheme of "constitutional dictatorship" as solution to the vexing problems presented by
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emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of success of the
"constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be

initiated unless it is necessary or even indispensable to the preservation of the State
and its constitutional order...
2) ...the decision to institute a constitutional dictatorship should never be in the

hands of the man or men who will constitute the dictator...
3) No government should initiate a constitutional dictatorship without making

specific provisions for its termination...
4) ...all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements...
5) ... no dictatorial institution should be adopted, no right invaded, no regular

procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship

should never be permanent in character or effect...
7) The dictatorship should be carried on by persons representative of every part of

the citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to

institute one should never be in the hands of the man or men who constitute the
dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was instituted...
11) ...the termination of the crisis must be followed by a complete return as possible
to the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship...[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence
or termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems

of emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive powers of government,
full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And
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in discussing the meaning of constitutionalism, he insisted that the historical and

proper test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government
but, but rather in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism with "limited" as
distinguished from "weak" government, McIlwain meant government limited
to the orderly procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete
political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists - from
Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and,
eventually, to McIlwain's "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson's "balanced power structure."[102]
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic integrity
and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim
that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,[104] the US Supreme Court held that "we have not
recognized an "overbreadth' doctrine outside the limited context of the First Amendment"
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,[105] it was
held:
It remains a 'matter of no little difficulty' to determine when a law may properly be

held void on its face and when 'such summary action' is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is
an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it
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forbids the State to sanction moves from 'pure speech' toward conduct and that
conduct -even if expressive - falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"[107] The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects
of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad law's "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those
third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever
an appropriate task for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt to show whether this situation
exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its meaning
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and differ as to its application."[110] It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII ... do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State
of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII
of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
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civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most
to the least benign, these are: the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-
out power is that "whenever it becomes necessary," the President may call the armed forces
"to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office's vast intelligence network, she
is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President's calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President's authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo's authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of
a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State's extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been
called upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."[113]
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot
be used to stifle or persecute critics of the government. It is placed in the keeping of the
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President for the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo's calling-out power for the armed forces to assist her
in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws."[116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,[117] including the Philippine National Police[118] under
the Department of Interior and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

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

was lifted[120] from Former President Marcos' Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines

by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of
the Constitution, do hereby place the entire Philippines as defined in Article 1,
Section 1 of the Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
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We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. --- Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. --- Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.
Sec. 4. Proclamations. --- Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of
a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative

detail or of subordinate or temporary interest which only concern a particular officer
or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to

internal administration, which the President desires to bring to the attention of all or
some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. --- Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and
a House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a
state of emergency can justify President Arroyo's exercise of legislative power by issuing
decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call
the military to enforce or implement certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over

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The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports
to grant the President, without any authority or delegation from Congress, to take over or direct
the operation of any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval was
President Marcos' Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over "the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President's authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection
can be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of
a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of
the existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare
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the existence of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution which
relate to the same subject matter will be construed together and considered in the light of each
other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy
declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate it
to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co.
et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President's military

power as Commander-in-Chief of the Armed Forces. The Government attempts to
do so by citing a number of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here. Even though "theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job
for the nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the President's power to see that the laws are faithfully executed
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refutes the idea that he is to be a lawmaker. The Constitution limits his

functions in the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to execute. The first
section of the first article says that "All legislative Powers herein granted shall
be vested in a Congress of the United States. . ."[126]
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a limited
view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b)
natural disaster,[129] and c) national security.[130]
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

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

which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or business affected with public
interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example,
calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about

strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.[132]
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned public
utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of
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the separation of powers, the fact remains that the Constitution has set up this form
of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by
adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The
point is, under this framework of government, legislation is preserved for Congress
all the time, not excepting periods of crisis no matter how serious. Never in the
history of the United States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department - unless we regard as legislating the carrying
out of a legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances "the
various branches, executive, legislative, and judicial,' given the ability to act, are
called upon "to perform the duties and discharge the responsibilities committed to
them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing
PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon.
Here, the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill
of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they
were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of
People Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that
on February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?
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Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused[135] and may afford an opportunity for abuse in the manner of
application.[136] The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the President's calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens' constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of
the statute or ordinance is to be measured is the essential basis for the exercise of power, and
not a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are "acts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism"
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of
states "sponsoring terrorism" and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions - or threats of the use of
force as the most recent by the United States against Iraq - consists in the absence of
an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of

violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying "One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the
use of the term "terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
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few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts - the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or
self-defense?
Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
who associate "terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe in
the concept of the legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference
to the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) - which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims - the Kashmiri resistance groups - who are
terrorists in the perception of India, liberation fighters in that of Pakistan - the earlier
Contras in Nicaragua - freedom fighters for the United States, terrorists for the
Socialist camp - or, most drastically, the Afghani Mujahedeen (later to become the
Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the
Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way - because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the definition
of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this
group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of sovereign
states that determine in each and every instance how a particular armed movement
(i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A "policy of double standards" on this vital issue of international affairs
has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states -

and not of peoples, in spite of the emphasis in the Preamble to the United Nations
Charter! - has become even more serious in the present global power constellation:
one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.[141]
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
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entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by
reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it
is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized."[142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he
was arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017;
third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by policemen who "held
his head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of
Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless
arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all
that the arresting officers could invoke was their observation that some rallyists were wearing t-
shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner
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David was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that petitioner David
was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition. Further, he also stated that there is insufficient evidence
for the charge of violation of BP 880 as it was not even known whether petitioner David was
the leader of the rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the

press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers' conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly
cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly are not to be preserved,
is not as to the auspices under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects. If the persons assembling
have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a
right to prevent."[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the
citizens' right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.
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Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.[150] The first
time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect.
When a person's right is restricted by government action, it behooves a democratic government
to see to it that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners' narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune's offices were searched without warrant;
second, the police operatives seized several materials for publication; third, the search was
conducted at about 1:00 o' clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a "strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do not
follow the standards -and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 - we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the duration
of the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.
Not only that, the search violated petitioners' freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to

the freedom of the press guaranteed under the fundamental law, and constitutes
a virtual denial of petitioners' freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that officious functionary of
the repressive government who tells the citizen that he may speak only if allowed to do so, and
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
no more and no less than what he is permitted to say on pain of punishment should he be so rash
as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these arbitrary
intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to
comment on public affairs is essential to the vitality of a representative democracy. It is the duty
of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.[154]
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the
Tribune's offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and
I know, Your Honor, and these are inadmissible for any purpose.[155]
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 o'clock in
the morning and without any search warrant? Did they become suddenly part
of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any
law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in

1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
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Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is
premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are
remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a misapplication of
the law. These are acts of the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens' rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached hereto,
is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 - a supervening event - would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1
rallies" become "unruly and violent." Consequently, the transcendental issues raised by the
parties should not be "evaded;" they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017's extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting
as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard - that the military and the police should
take only the "necessary and appropriate actions and measures to suppress and prevent
acts of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed deleted from the
said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to
guide the military, and eventually the courts, to determine the limits of the AFP's authority in
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carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of
the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition
of standards on media or any prior restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary
due process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state. During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our people's liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance
of legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision
in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the
PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Panganiban, C. J., please see concurring opinion.

Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario, and Garcia, JJ., concur.
Puno, J., on leave.
Ynares-Santiago, J., please see concurring opinion.
Carpio, Carpio-Morales, and Callejo, Sr., JJ., join dissenting opinion of C. J. Panganiban.
Tinga, J., please see dissenting opinion.
Corona, and Velasco, Jr., JJ., join dissenting opinion of J. Tinga.
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
[1]Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark - Lecturer,
Volume XIX, 1971, p. 29.
[2] Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
[3]
Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C.,
who propounded universal impermanence and that all things, notably opposites are interrelated.
[4] Respondents' Comment dated March 6, 2006.
[5] Ibid.
[6] Ibid.
[7]Minutes of the Intelligence Report and Security Group, Philippine Army, Annex "I" of
Respondents' Consolidated Comment.
[8] Respondents' Consolidated Comment.
[9] Ibid.
[10] Ibid.
[11] Petition in G.R. No. 171396, p. 5.
[12]Police action in various parts of Metro Manila and the reactions of the huge crowds being
dispersed were broadcast as "breaking news" by the major television stations of this country.
[14] Ibid.
[15] The prime duty of the Government is to serve and protect the people. The Government may
call upon the people to defend the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal military or civil service.
[16] Noperson shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
[17]The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
[18]No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances.
[19](1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
[20]In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
[21] 1 Cranch 137 [1803].
[22]Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on the

Constitution of the United States (Boston: Boston University Heffernan Press, 1939), pp. 376-
77.
[23]The Court has no self-starting capacity and must await the action of some litigant so
aggrieved as to have a justiciable case. (Shapiro and Tresolini, American Constitutional Law,
Sixth Edition, 1983, p. 79).
[24] Cruz, Philippine Political Law, 2002 Ed., p. 259.
[25] Ibid.
[26] Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
[27] Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10,
2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426
SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA
590.
[28]Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26,
2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.
[29] Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
[30] Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.
[31] Province of Batangas v. Romulo, supra.
[32] Lacson v. Perez, supra.
[33] Province of Batangas v. Romulo, supra.
[34]
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v.
Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary,
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[35] Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
[36] G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[37] Black's Law Dictionary, 6th Ed. 1991, p. 941.
[38] Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
[39] 275 Ky 91, 120 SW2d 765 (1938).
[40] 19 Wend. 56 (1837).

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[41] 232 NC 48, 59 SE2d 359 (1950).
[42] 302 U.S. 633.
[43] 318 U.S. 446.
[44] 65 Phil. 56 (1937).
[45] G.R. No. 117, November 7, 1945 (Unreported).
[46] G.R. No. 2947, January 11, 1959 (Unreported).
[47] 110 Phil. 331 (1960).
[48] 77 Phil. 1012 (1947).
[49] 84Phil. 368 (1949) The Court held: "Above all, the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure."
[50] L-No. 40004, January 31, 1975, 62 SCRA 275.
[51]Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held
that where the question is one of public duty and the enforcement of a public right, the people
are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the
execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where
the Court held that in cases involving an assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public
which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June
30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers' lack of personality
to sue may be disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that
while no expenditure of public funds was involved under the questioned contract, nonetheless
considering its important role in the economic development of the country and the magnitude of
the financial consideration involved, public interest was definitely involved and this clothed
petitioner with the legal personality under the disclosure provision of the Constitution to
question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R.
No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are
strictly speaking, not covered by the definition of a "proper party," nonetheless, it has the
discretion to waive the requirement, in determining the validity of the implementation of the
CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the
Court held that it enjoys the open discretion to entertain taxpayer's suit or not and that a member
of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held
that petitioner as a taxpayer, has the personality to file the instant petition, as the issues
involved, pertains to illegal expenditure of public money;
Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750,
where the Court held that where serious constitutional questions are involved, the
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"transcendental importance" to the public of the cases involved demands that they be settled
promptly and definitely, brushing aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that
the importance of the issues involved concerning as it does the political exercise of qualified
voters affected by the apportionment, necessitates the brushing aside of the procedural
requirement of locus standi.
[52] G.R. No. 133250, July 9, 2002, 384 SCRA 152.
[53] G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
[54] G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[55] Supra.
[56] G.R. No. 118910, November 16, 1995, 250 SCRA 130.
[57] G.R. No. 132922, April 21, 1998, 289 SCRA 337.
[58] G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
[59] G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[60] 235 SCRA 506 (1994).
[61] Supra.
[62] Supra.
[63] 197 SCRA 52, 60 (1991).
[64] Supra.
[65] See NAACP v. Alabama, 357 U.S. 449 (1958).
[66] G.R. No. 141284, August 15, 2000, 338 SCRA 81.
[67] From the deliberations of the Constitutional Commission, the intent of the framers is clear
that the immunity of the President from suit is concurrent only with his tenure and not his term.
(De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
[68] Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest
lives.
[69] Ibid., Sec. 2.
[70] No. 2908, September 30, 2005, 471 SCRA 87.
[71] 91 Phil. 882 (1952).
[72] No. L-33964, December 11, 1971, 42 SCRA 448.
[73] No. L-35546, September 17, 1974, 59 SCRA 183.

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[74] No. L-61388, April 20, 1983, 121 SCRA 472.
[75] Tañada v. Cuenco, 103 Phil. 1051 (1957).
[76] Lansang v. Garcia, supra, pp. 473 and 481.
[77] Supra.
[78] "Five Justices - Antonio, Makasiar, Esguerra, Fernandez, and Aquino - took the position
that the proclamation of martial law and the arrest and detention orders accompanying the
proclamation posed a "political question" beyond the jurisdiction of the Court. Justice Antonio,
in a separate opinion concurred in by Makasiar, Fernandez, and Aquino, argued that the
Constitution had deliberately set up a strong presidency and had concentrated powers in times
of emergency in the hands of the President and had given him broad authority and discretion
which the Court was bound to respect. He made reference to the decision in Lansang v. Garcia
but read it as in effect upholding the "political question" position. Fernandez, in a separate
opinion, also argued Lansang, even understood as giving a narrow scope of review authority to
the Court, affirmed the impossible task of "checking' the action taken by the President. Hence,
he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment of
Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muñoz- Palma,
and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x
Barredo, however, wanted to have the best of both worlds and opted for the view that "political
questions are not per se beyond the Court's jurisdiction ... but that as a matter of policy implicit
in the Constitution itself the Court should abstain from interfering with the Executive's
Proclamation." (Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, 1996 Edition, p. 794.)
[79] See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.
[80] Supra.
[81] Cruz, Philippine Political Law, 2002 Ed., p. 247.
[82] Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
[83] Supra, 481-482.
[84] Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
[85] Ibid.
[86] The Social Contract (New York: Dutton, 1950), pp. 123-124.
[87] Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
[88] Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
[89] The Discourses, Bk. 1, Ch. XXXIV.
[90] Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
[91] Ibid.
[92] See The Problem of Constitutional Dictatorship, p. 328.
[93] Ibid., p. 353.

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[94] Ibid., pp. 338-341.
[95] Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
[96]Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949,
p. 580.
[97] Ibid, pp. 574-584.
[99]Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-
306.
[102]
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153
(1952), See Concurring Opinion J. Jackson.
[103]
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No.
148560, November 19, 2001, 369 SCRA 393.
[104] 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
[105] Supra.
[106] See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.
[107] Broadrick v. Oklahoma, 413 U.S. 601 (1973).
[108] Ibid.
[109]401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4
L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d
388 (1989).
[110]Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July
31, 1967, 20 SCRA 849 (1967).
[111] G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained
President Arroyo's declaration of a "state of rebellion" pursuant to her calling-out power.
[112] Supra.
[113]
Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in
Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].
[114] Retired Associate Justice of the Supreme Court.
[115] Section 1, Article VII of the Constitution.
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[118] Section 6, Article XVI of the Constitution.
[119] See Republic Act No. 6975.
[120] Ironically,
even the 7th Whereas Clause of PP 1017 which states that "Article 2, Section 4
of our Constitution makes the defense and preservation of the democratic institutions and the
State the primary duty of Government" replicates more closely Section 2, Article 2 of the 1973
Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, "[t[he prime
duty of the Government is to serve and protect the people."
[121]Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of

Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission
on Election, supra.
[122]Section 17, Article XIV of the 1973 Constitution reads: "In times of national emergency
when the public interest so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest."
[123] Antieau, Constitutional Construction, 1982, p.21.
[124] Cruz, Philippine Political Law, 1998, p. 94.
[125] 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
[126] Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.
[127] Smith and Cotter, Powers of the President During Crises, 1972, p. 14
[128] The Federal Emergency Relief Act of 1933 opened with a declaration that the economic
depression created a serious emergency, due to wide-spread unemployment and the inadequacy
of State and local relief funds, . . . making it imperative that the Federal Government cooperate
more effectively with the several States and Territories and the District of Columbia in
furnishing relief to their needy and distressed people. President Roosevelt in declaring a bank
holiday a few days after taking office in 1933 proclaimed that "heavy and unwarranted
withdrawals of gold and currency from - banking institutions for the purpose of hoarding; ...
resulting in "sever drains on the Nation's stocks of gold - have created a national emergency,"
requiring his action. Enacted within months after Japan's attack on Pearl Harbor, the Emergency
Price Control Act of 1942 was designed to prevent economic dislocations from endangering the
national defense and security and the effective prosecution of the war. (Smith and Cotter,
Powers of the President During Crises, 1972, p.18)
[129] The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the
emergency and necessity for relief in stricken agricultural areas and in another section referred
to "the present drought emergency."[129] The India Emergency Food Aid Act of 1951
provided for emergency shipments of food to India to meet famine conditions then ravaging the
great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the
President certain powers in time of "public peril or disaster." The other statutes provide for
existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone,
hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April 1937. It
made "funds available for the control of incipient or emergency outbreaks of insect pests or
plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1,
1952, Sec. 2 [a]) Supra.
[130]National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3)
Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950
contemplated an attack or series of attacks by an enemy of the United States which conceivably
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would cause substantial damage or injury to civilian property or persons in the United States by
any one of several means; sabotage, the use of bombs, shellfire, or atomic, radiological,
chemical, bacteriological means or other weapons or processes. Such an occurrence would
cause a "National Emergency for Civil Defense Purposes," or "a state of civil defense
emergency," during the term which the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact
supplies an illustration in this context for emergency cooperation. "Emergency" as used in this
compact shall mean and include invasion, or other hostile action, disaster, insurrection or
imminent danger thereof. ( Id., p.15-16)
[131] Cruz, Philippine Political Law, 1998, p. 95.
[132] Record of the Constitutional Commission, Vol. III, pp. 266-267.
[133] Record of the Constitutional Convention, pp. 648-649.
[134] 84 Phil. 368 (1949).
[135] Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
[136] Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261,
cert den 280 US 610, 74 L ed 653, 50 S Ct 158.
[137]
Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309,
105 NE 548.
[138] Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
[139] De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
[140] Ibid.
[141] Ina Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture
Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and
President of the International Progress Organization, speaking on "The United Nations, The
International Rule of Law and Terrorism" cited in the Dissenting Opinion of Justice Kapunan in
Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[142] Section 2, Article III of the 1987 Constitution.
[143] Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p.
51.
[144] Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
[145] An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and
Petition the Government for Other Purposes.
[146] Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
[147] Ibid.
[148] 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
[149] Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
[150] Section 5. Application requirements - All applications for a permit shall comply with the
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following guidelines:
xxxxxx
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
[152] No. L-64161, December 26, 1984, 133 SCRA 816.
[153]
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos.
102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
[154] Boyd v. United States, 116 U.S. 616 (1886).
[155] Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
[156] Ibid., pp. 432-433.
[157] Ibid, pp. 507-508.
[158] Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.
CONCURRING OPINION
PANGANIBAN, CJ:
I was hoping until the last moment of our deliberations on these consolidated cases that the
Court would be unanimous in its Decision. After all, during the last two weeks, it decided with
one voice two equally contentious and nationally significant controversies involving Executive
Order No. 464[1] and the so-called Calibrated Preemptive Response policy.[2]
However, the distinguished Mr. Justice Dante O. Tinga's Dissenting Opinion has made that hope
an impossibility. I now write, not only to express my full concurrence in the thorough and
elegantly written ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but
more urgently to express a little comment on Justice Tinga's Dissenting Opinion (DO).
The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong
with PP 1017. It labels the PP a harmless pronouncement -- "an utter superfluity" -- and
denounces the ponencia as an "immodest show of brawn" that "has imprudently placed the
Court in the business of defanging paper tigers."
Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017
under its present language and nuance. I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to some minds" --
"may have flirted with power." With due respect, this is a masterful understatement. PP 1017
may be a paper tiger, but -- to borrow the colorful words of an erstwhile Asian leader -- it has
nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives
and the perseverance of this Court in safeguarding the people's constitutionally enshrined
liberty. They are playing with fire, and unless prudently restrained, they may one day wittingly
or unwittingly burn down the country. History will never forget, much less forgive, this Court if
it allows such misadventure and refuses to strike down abuse at its inception. Worse, our people
will surely condemn the misuse of legal hocus pocus to justify this trifling with constitutional
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sanctities.
And even for those who deeply care for the President, it is timely and wise for this Court to set
down the parameters of power and to make known, politely but firmly, its dogged determination
to perform its constitutional duty at all times and against all odds. Perhaps this country would
never have had to experience the wrenching pain of dictatorship; and a past President would not
have fallen into the precipice of authoritarianism, if the Supreme Court then had the moral
courage to remind him steadfastly of his mortality and the inevitable historical damnation of
despots and tyrants. Let not this Court fall into that same rut.
[1] Senate v. Ermita, GR No. 169777, April 20, 2006.
[2] Bayan v. Ermita, GR No. 169838, April 25, 2006.
DISSENTING OPINION
TINGA, J:
I regret to say that the majority, by its ruling today, has imprudently placed the Court in the
business of defanging paper tigers. The immodest show of brawn unfortunately comes at the
expense of an exhibition by the Court of a fundamental but sophisticated understanding of the
extent and limits of executive powers and prerogatives, as well as those assigned to the judicial
branch. I agree with the majority on some points, but I cannot join the majority opinion, as it
proceeds to rule on non-justiciable issues based on fears that have not materialized, departing as
they do from the plain language of the challenged issuances to the extent of second-guessing the
Chief Executive. I respectfully dissent.
The key perspective from which I view these present petitions is my own ponencia in Sanlakas
v. Executive Secretary,[1] which centered on Presidential Proclamation No. 427 (PP 427),
declaring a "state of rebellion" in 2003. The Court therein concluded that while the declaration
was constitutional, such declaration should be regarded as both regarded as "an utter
superfluity", which "only gives notice to the nation that such a state exists and that the armed
forces may be called to prevent or suppress it", and "devoid of any legal significance", and
"cannot diminish or violate constitutionally protected rights." I submit that the same conclusions
should be reached as to Proclamation No. 1017 (PP 1017). Following the cardinal precept that
the acts of the executive are presumed constitutional is the equally important doctrine that to
warrant unconstitutionality, there must be a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative implication.[2] Also well-settled as a rule of construction is
that where thee are two possible constructions of law or executive issuance one of which is in
harmony with the Constitution, that construction should be preferred.[3] The concerns raised by
the majority relating to PP 1017 and General Order Nos. 5 can be easily disquieted by applying
this well-settled principle.
I.
PP 1017Has No Legal Binding
Effect; Creates No Rights and
Obligations; and Cannot Be
Enforced or Invoked in a Court
Of Law
First, the fundamentals. The President is the Chief of State and Foreign Relations, the chief of
the Executive Branch,[4] and the Commander-in-Chief of the Armed Forces.[5] The Constitution
vests on the President the executive power.[6] The President derives these constitutional
mandates from direct election from the people. The President stands as the most recognizable
representative symbol of government and of the Philippine state, to the extent that foreign
leaders who speak with the President do so with the understanding that they are speaking to the
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Philippine state.
Yet no matter the powers and prestige of the presidency, there are significant limitations to the
office of the President. The President does not have the power to make or legislate laws,[7] or
disobey those laws passed by Congress.[8] Neither does the President have to power to create
rights and obligations with binding legal effect on the Filipino citizens, except in the context of
entering into contractual or treaty obligations by virtue of his/her position as the head of State.
The Constitution likewise imposes limitations on certain powers of the President that are
normally inherent in the office. For example, even though the President is the administrative
head of the Executive Department and maintains executive control thereof,[9] the President is
precluded from arbitrarily terminating the vast majority of employees in the civil service whose
right to security of tenure is guaranteed by the Constitution.[10]
The President has inherent powers,[11] powers expressly vested by the Constitution, and powers
expressly conferred by statutes. The power of the President to make proclamations, while
confirmed by statutory grant, is nonetheless rooted in an inherent power of the presidency and
not expressly subjected to constitutional limitations. But proclamations, as they are, are a
species of issuances of extremely limited efficacy. As defined in the Administrative Code,
proclamations are merely "acts of the President fixing a date or declaring a status or condition of
public moment or interest upon the existence of which the operation of a specific law or
regulation is made to depend".[12] A proclamation, on its own, cannot create or suspend any
constitutional or statutory rights or obligations. There would be need of a complementing law or
regulation referred to in the proclamation should such act indeed put into operation any law or
regulation by fixing a date or declaring a status or condition of a public moment or interest
related to such law or regulation. And should the proclamation allow the operationalization of
such law or regulation, all subsequent resultant acts cannot exceed or supersede the law or
regulation that was put into effect.
Under Section 18, Article VII of the Constitution, among the constitutional powers of the
President, as Commander-in-Chief, is to "call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion".[13] The existence of invasion or rebellion could allow
the President to either suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law, but there is a fairly elaborate constitutional
procedure to be observed in such a case, including congressional affirmation or revocation of
such suspension or declaration, as well as the availability of judicial review. However, the
existence of lawless violence, invasion or rebellion does not ipso facto cause the "calling out" of
the armed forces, the suspension of habeas corpus or the declaration of martial law â”€ it
remains within the discretion of the President to engage in any of these three acts should said
conditions arise.
Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such
declaration could ostensibly predicate the suspension of the privilege of the writ of habeas
corpus or the declaration of martial law, but the President did not do so. Instead, PP 427, and the
accompanying General Order No. 4, invoked the "calling out" of the Armed Forces to prevent
lawless violence, invasion and rebellion. Appreciably, a state of lawless violence, invasion or
rebellion could be variable in scope, magnitude and gravity; and Section 18, Article VII allows
for the President to respond with the appropriate measured and proportional response.
Indeed, the diminution of any constitutional rights through the suspension of the privilege of the
writ or the declaration of martial law is deemed as "strong medicine" to be used sparingly and
only as a last resort, and for as long as only truly necessary. Thus, the mere invocation of the
"calling out" power stands as a balanced means of enabling a heightened alertness in dealing
with the armed threat, but without having to suspend any constitutional or statutory rights or
cause the creation of any new obligations. For the utilization of the "calling out" power alone
cannot vest unto the President any new constitutional or statutory powers, such as the enactment
of new laws. At most, it can only renew emphasis on the duty of the President to execute
already existing laws without extending a corresponding mandate to proceed extra-
constitutionally or extra-legally. Indeed, the "calling out" power does not authorize the President
or the members of the Armed Forces to break the law.
These were the premises that ultimately informed the Court's decision in Sanlakas, which
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affirmed the declaration of a "state of rebellion" as within the "calling out" power of the
President, but which emphasized that for legal intents and purposes, it should be both regarded
as "an utter superfluity", which "only gives notice to the nation that such a state exists and that
the armed forces may be called to prevent or suppress it," and "devoid of any legal
significance," as it could not "cannot diminish or violate constitutionally protected rights." The
same premises apply as to PP 1017.
A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in order.
PP 427 PP 1017
NOW, THEREFORE, I, GLORIA NOW, THEREFORE, I Gloria

MACAPAGAL-ARROYO, by virtue Macapagal-Arroyo, President of
of the powers vested in me by law, the Republic of the Philippines
hereby confirm the existence of an and Commander-in-Chief of the
actual and on-going rebellion, Armed Forces of the
compelling me to declare a state of Philippines, by virtue of the
rebellion. powers vested upon me by
Section 18, Article 7 of the
In view of the foregoing, I am Philippine Constitution which
issuing General Order No. 4 in states that: "The President. . .
accordance with Section 18, Article whenever it becomes necessary,
VII of the Constitution, calling out . . . may call out (the) armed
the Armed Forces of the Philippines forces to prevent or suppress. . .
and the Philippine National Police to rebellion. . .," and in my
immediately carry out the necessary capacity as their Commander-in-
actions and measures to suppress and Chief, do hereby command the
quell the rebellion with due regard to Armed Forces of the
constitutional rights. Philippines, to maintain law and
order throughout the
Philippines, prevent or suppress
all forms of lawless violence as
well any act of insurrection or
rebellion and to enforce
obedience to all the laws and to
all decrees, orders and
regulations promulgated by me
personally or upon my direction;
and as provided in Section 17,
Article 12 of the Constitution do
hereby declare a State of
National Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two distinct
phases. The first is the declaration itself of a status or condition, a "state of rebellion" in PP 437,
and a "state of national emergency" under PP 1017. Both "state of rebellion" and "state of
national emergency" are terms within constitutional contemplation. Under Section 18, Article
VII, the existence of a "state of rebellion" is sufficient premise for either the suspension of the
privilege of the writ of habeas corpus or the declaration of martial law, though in accordance
with the strict guidelines under the same provision. Under Section 17, Article XII, the existence
of a state of national emergency is sufficient ground for the State, during the emergency, under
reasonable terms prescribed by it, and when the public interest so requires, to temporarily take
over or direct the operation of any privately-owned public utility or business affected with
public interest. Under Section 23(2), Article VI, the existence of a state of national emergency
may also allow Congress to authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy.
Certainly, the declaration could stand as the first step towards constitutional authorization for
the exercise by the President, the Congress or the State of extraordinary powers and
prerogatives. However, the declaration alone cannot put into operation these extraordinary
powers and prerogatives, as the declaration must be followed through with a separate act
providing for the actual utilization of such powers. In the case of the "state of rebellion," such
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act involves the suspension of the writ or declaration of martial law. In the case of the "state of
national emergency," such act involves either an order for the takeover or actual takeover by the
State of public utilities or businesses imbued with public interest or the authorization by
Congress for the President to exercise emergency powers.
In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the writ or
the declaration of martial law. In PP 1017, the declaration of a "state of national emergency" did
not lead to an authorization for the takeover or actual takeover of any utility or business, or the
grant by Congress to the President of emergency powers. Instead, both declarations led to the
invocation of the calling out power of the President under Section 18, Article VII, which the
majority correctly characterizes as involving only "ordinary police action."
I agree with the ponencia's holding that PP 1017 involves the exercise by the President of the
"calling out" power under Section 18, Article VII. In Integrated Bar v. Zamora,[14] the Court
was beseeched upon to review an order of President Estrada commanding the deployment of the
Marines in patrols around Metro Manila, in view of an increase in crime.[15] The Court,
speaking through Justice Santiago Kapunan, affirmed the President's order, asserting that "it is
the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of
the Armed Forces, full discretion to call forth the military when in his judgment it is necessary
to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the
petitioner can show that the exercise of such discretion was gravely abused, the President's
exercise of judgment deserves to be accorded respect from this Court."[16] Tellingly, the order
of deployment by President Estrada was affirmed by the Court even though we held the view
that the power then involved was not the "calling out" power, but "the power involved may be
no more than the maintenance of peace and order and promotion of the general welfare."[17]
It was also maintained in Integrated Bar that while Section 18, Article VII mandated two
conditions â”€ actual rebellion or invasion and the requirement of public safety â”€ before the
suspension of the privilege of the writ of habeas corpus or the declaration of martial law could
be declared, "these conditions are not required in the case of the power to call out the armed
forces. The only criterion is that "whenever it becomes necessary", the President may call the
armed forces "to suppress lawless violence, invasion or rebellion."[18] The Court concluded that
the implication was "that the President is given full discretion and wide latitude in the exercise
of the power to call as compared to the two other powers."[19]
These propositions were affirmed in Sanlakas, wherein the invocation of the calling out power
was expressly made by President Arroyo. The Court noted that for the purpose of exercising the
calling out power, the Constitution did not require the President to make a declaration of a state
of rebellion.[20] At the same time, the Court in Sanlakas acknowledged that "the President's
authority to declare a state of rebellion springs in the main from her powers as chief executive
and, at the same time, draws strength from her Commander-in-Chief powers."[21]
For still unclear reasons, the majority attempts to draw a distinction between Sanlakas and the
present petitions by that the statutory authority to declare a "state of rebellion" emanates from
the Administrative Code of 1987, particularly the provision authorizing the President to make
proclamations. As such, the declaration of a "state of rebellion," pursuant to statutory authority,
"was merely an act declaring a status or condition of public moment or interest." The majority
grossly misreads Sanlakas, which expressly roots the declaration of a state of rebellion from the
wedded powers of the Chief Executive, under Section 1, Article VII, and as Commander-in-
Chief, under Section 18, Article VII.
Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the
directive to the Armed Forces of the Philippines to "suppress all forms of lawless violence". But
there are nuances to the calling out power invoked in PP 1017 which the majority does not
discuss. The directive "to suppress all forms of lawless violence" is addressed not only to the
Armed Forces but to the police as well. The "calling out" of the police does not derive from
Section 17, Article VII, or the commander-in-chief clause, our national police being civilian in
character. Instead, the calling out of the police is sourced from the power of the President as
Chief Executive under Section 1, Article VII, and the power of executive control under Section
18, Article VII. Moreover, while the permissible scope of military action is limited to acts in
furtherance of suppressing lawless violence, rebellion, invasion, the police can be commanded
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by the President to execute all laws without distinction in light of the presidential duty to
execute all laws.[22]
Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the discretion
of the Chief Executive in the exercise of the "calling out" power due to a recognition that the
said power is of limited import, directed only to the Armed Forces of the Philippines, and
incapable of imposing any binding legal effect on the citizens and other branches of the
Philippines. Indeed, PP 1017 does not purport otherwise. Nothing in its operative provisions
authorize the President, the Armed Forces of the Philippines, or any officer of the law, to
perform any extra-constitutional or extra-legal acts. PP 1017 does not dictate the suspension of
any of the people's guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a state of emergency under PP
1017 nor the invocation of the calling out power therein authorizes warrantless arrests,
searches or seizures; the infringement of the right to free expression, peaceable assembly
and association and other constitutional or statutory rights. Any public officer who
nonetheless engaged or is engaging in such extra-constitutional or extra-legal acts in the
name of PP 1017 may be subjected to the appropriate civil, criminal or administrative
liability.
To prove this point, let us now compare PP 1017 with a different presidential issuance, one that
was intended to diminish constitutional and civil rights of the people. The said issuance,
Presidential Proclamation No. 1081, was issued by President Marcos in 1972 as the instrument
of declaring martial law. The operative provisions read:
PD. 1081 PP 1017
Now, thereof, I, Ferdinand E. NOW, THEREFORE, I Gloria

Marcos, President Of the Macapagal-Arroyo, President of the
Philippines, by virtue of the Republic of the Philippines and
powers vested upon me by Commander-in-Chief of the Armed
article VII, Section 10, Forces of the Philippines, by virtue of
Paragraph (2) of the the powers vested upon me by Section
Constitution, do hereby place 18, Article 7 of the Philippine
the entire Philippines as Constitution which states that: "The
defined in the article I, Section President. . . whenever it becomes
1, of the Constitution under necessary, . . . may call out (the)
martial law, and in my armed forces to prevent or suppress. .
capacity as their commander- . rebellion. . .," and in my capacity as
in-chief, do hereby command their Commander-in-Chief, do hereby
the arned forces of the command the Armed Forces of the
Philippines, to maintain law Philippines, to maintain law and order
and order throughout the throughout the Philippines, prevent or
Philippines, prevent or suppress all forms of lawless violence
suppress all forms of lawless as well any act of insurrection or
violence as well as any act of rebellion and to enforce obedience to
insurrection or rebellion and to all the laws and to all decrees, orders
enforce obedience to all the and regulations promulgated by me
laws and decrees, orders and personally or upon my direction; and
regulations promulgated by me as provided in Section 17, Article 12
personally or upon my of the Constitution do hereby declare
direction. a State of National Emergency.
In addition, I do hereby
order that all persons
presently detained, as well as
others who may hereafter be
similarly detained for the
crimes of insurrection or
rebellion, and all other
crimes and offenses
committed in furtherance or
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on the occasion thereof, or

incident thereto, or in
connection therewith, for
crimes against national
security and the law of
nations, crimes, against the
fundamental laws of the
state, crimes against public
order, crimes involving
usurpation of authority,
rank, title and improper use
of names, uniforms and
insignia, crimes committed
by public officers, and for
such other crimes as will be
enumerated in Orders that I
shall subsequently
promulgate, as well as crimes
as a consequence of any
violation of any decree, order
or regulation promulgated by
me personally or
promulgated upon my
direction shall be kept under
detention until otherwise
ordered released by me or by
my duly designated
representative. (emphasis
supplied)
Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017 merely
declared the existence of a state of rebellion, an act ultimately observational in character, PP
1081 "placed the entire Philippines under martial law," an active implement[23] that, by itself,
substituted civilian governmental authority with military authority. Unlike in the 1986
Constitution, which was appropriately crafted with an aversion to the excesses of Marcosian
martial rule, the 1935 Constitution under which PP 1081 was issued left no intervening
safeguards that tempered or limited the declaration of martial law. Even the contrast in the verbs
used, "place" as opposed to "declare," betrays some significance. To declare may be simply to
acknowledge the existence of a particular condition, while to place ineluctably goes beyond
mere acknowledgement, and signifies the imposition of the actual condition even if it did not
exist before.
Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts of
such power are wildly distaff in light of PP 1081's accompanying declaration of martial law.
Since martial law involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is significantly greater than the one
involved in PP 1017, which could only contemplate the enforcement of existing laws in relation
to the suppression of lawless violence, rebellion or invasion and the maintenance of general
peace and order.
Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner that
PP 1017 does not even ponder upon is the subsequent paragraph cited, which authorizes the
detention and continued detention of persons for a plethora of crimes not only directly related to
the rebellion or lawless violence, but of broader range such as those "against national security,"
or "public order." The order of detention under PP 1081 arguably includes every crime in the
statute book. And most alarmingly, any person detained by virtue of PP 1081 could remain in
perpetual detention unless otherwise released upon order of President Marcos or his duly
authorized representative.
Another worthy point of contrast concerns how the Supreme Court, during the martial law era,
dealt with the challenges raised before it to martial law rule and its effects on civil liberties.
While martial law stood as a valid presidential prerogative under the 1935 Constitution, a ruling
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committed to safeguard civil rights and liberties could have stood ground against even the most
fundamental of human rights abuses ostensibly protected under the 1935 and 1973 constitutions
and under international declarations and conventions. Yet a perusal of Aquino v. Enrile,[24] the
case that decisively affirmed the validity of martial law rule, shows that most of the Justices
then sitting exhibited diffidence guised though as deference towards the declaration of martial
law. Note these few excerpts from the several opinions submitted in that case which stand as
typical for those times:
The present state of martial law in the Philippines is peculiarly Filipino and fits into
no traditional patterns or judicial precedents. xxx In the first place I am convinced
(as are the other Justices), without need of receiving evidence as in an ordinary
adversary court proceeding, that a state of rebellion existed in the country when
Proclamation No. 1081 was issued. It was a matter of contemporary history within
the cognizance not only of the courts but of all observant people residing here at that
time. xxx The state of rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are none in other
regions except in isolated pockets in Luzon, and that therefore there is no need to
maintain martial law all over the country, ignores the sophisticated nature and
ramifications of rebellion in a modern setting. It does not consist simply of armed
clashes between organized and identifiable groups on fields of their own choosing. It
includes subversion of the most subtle kind, necessarily clandestine and operating
precisely where there is no actual fighting. Underground propaganda, through
printed newssheets or rumors disseminated in whispers; recruiting of armed and
ideological adherents, raising of funds, procurement of arms and materiel, fifth-
column activities including sabotage and intelligence â”€ all these are part of the
rebellion which by their nature are usually conducted far from the battle fronts. They
cannot be counteracted effectively unless recognized and dealt with in that context.
[25]
xxx
[T]he fact that courts are open cannot be accepted as proof that the rebellion and
insurrection, which compellingly called for the declaration of martial law, no longer
imperil the public safety. Nor are the many surface indicia adverted to by the
petitioners (the increase in the number of tourists, the choice of Manila as the site of
international conferences and of an international beauty contest) to be regarded as
evidence that the threat to public safety has abated. There is actual armed combat,
attended by the somber panoply of war, raging in Sulu and Cotabato, not to mention
the Bicol region and Cagayan Valley. I am hard put to say, therefore, that the
Government's claim is baseless.
I am not insensitive to the plea made here in the name of individual liberty. But to
paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner Diokno that
is in issue we would probably resolve the doubt in his favor and grant his
application. But the Solicitor General, who must be deemed to represent the
President and the Executive Department in this case, has manifested that in the
President's judgment peace and tranquility cannot be speedily restored in the country
unless the petitioners and others like them meantime remain in military custody. For,
indeed, the central matter involved is not merely the liberty of isolated individuals,
but the collective peace, tranquility and security of the entire nation.[26]
xxx
It may be that the existence or non-existence or imminence of a rebellion of the

magnitude that would justify the imposition of martial law is an objective fact
capable of judicial notice, for a rebellion that is not of general knowledge to the
public cannot conceivably be dangerous to public safety. But precisely because it is
capable of judicial notice, no inquiry is needed to determine the propriety of the
Executive's action.
Again, while the existence of a rebellion may be widely known, its real extent and
the dangers it may actually pose to the public safety are not always easily perceptible
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to the unpracticed eye. In the present day practices of rebellion, its inseparable
subversion aspect has proven to be more effective and important than "the rising (of
persons) publicly and taking arms against the Government" by which the Revised
Penal Code characterizes rebellion as a crime under its sanction. Subversion is such
a covert kind of anti-government activity that it is very difficult even for army
intelligence to determine its exact area of influence and effect, not ot mention the
details of its forces and resources. By subversion, the rebels can extend their field of
action unnoticed even up to the highest levels of the government, where no one can
always be certain of the political complexion of the man next to him, and this does
not exclude the courts. Arms, ammunition and all kinds of war equipment travel and
are transferred in deep secrecy to strategic locations, which can be one's
neighborhood without him having any idea of what is going on. There are so many
insidious ways in which subversives act, in fact too many to enumerate, but the point
that immediately suggests itself is that they are mostly incapable of being proven in
court, so how are We to make a judicial inquiry about them that can satisfy our
judicial conscience.
The Constitution definitely commits it to the Executive to determine the factual

bases and to forthwith act as promptly as possible to meet the emergencies of
rebellion and invasion which may be crucial to the life of the nation. He must do this
with unwavering conviction, or any hesitancy or indecision on his part will surely
detract from the needed precision in his choice of the means he would employ to
repel the aggression. The apprehension that his decision might be held by the
Supreme Court to be a transgression of the fundamental law he has sworn to "defend
and preserve" would deter him from acting when precisely it is most urgent and
critical that he should act, since the enemy is about to strike the mortal blow.[27]
xxx
To start with, Congress was not unaware of the worsening conditions of peace and
order and of, at least, evident insurgency, what with the numerous easily verifiable
reports of open rebellious activities in different parts of the country and the series of
rallies and demonstrations, often bloody, in Manila itself and other centers of
population, including those that reached not only the portals but even the session hall
of the legislature, but the legislators seemed not to be sufficiently alarmed or they
either were indifferent or did not know what to do under the circumstances. Instead
of taking immediate measures to alleviate the conditions denounced and decried by
the rebels and the activists, they debated and argued long on palliatives without
coming out with anything substantial much less satisfactory in the eyes of those who
were seditiously shouting for reforms. In any event, in the face of the inability of
Congress to meet the situation, and prompted by his appraisal of a critical situation
that urgently called for immediate action, the only alternative open to the President
was to resort to the other constitutional source of extraordinary powers, the
Constitution itself.[28]
xxx
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in

ordering detention of persons, the Proclamation pointedly limits arrests and
detention only to those "presently detained, as well as others who may hereafter be
similarly detained for the crimes of insurrection or rebellion, and all other crimes
and offences committed in furtherance or on the occasion thereof, or incident
thereto, or in connection therewith, for crimes against national security and the law
of nations, crimes, against the fundamental laws of the state, crimes against public
order, crimes involving usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public officers, and for such
other crimes as will be enumerated in Orders that I shall subsequently promulgate, as
well as crimes as a consequence of any violation of any decree, order or regulation
promulgated by me personally or promulgated upon my direction." Indeed, even in
the affected areas, the Constitution has not been really suspended much less
discarded. As contemplated in the fundamental law itself, it is merely in a state of
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anaesthesia, to the end that the much needed major surgery to save the nation's life
may be successfully undertaken.[29]
xxx
The quoted lines of reasoning can no longer be sustained, on many levels, in these more
enlightened times. For one, as a direct reaction to the philosophy of judicial inhibition so
frequently exhibited during the Marcos dictatorship, our present Constitution has explicitly
mandated judicial review of the acts of government as part of the judicial function. As if to
rebuff Aquino, the 1987 Constitution expressly allows the Supreme Court to review the
sufficiency of the factual basis of the proclamation of martial law and decide the same within 30
days from the filing of the appropriate case.[30] The Constitution also emphasizes that a state of
martial law did not suspend the operation of the Constitution or supplant the functioning of the
judicial and legislative branches.[31] The expediency of hiding behind the political question
doctrine can no longer be resorted to.
For another, the renewed emphasis within domestic and international society on the rights of
people, as can be seen in worldwide democratic movements beginning with our own in 1986,
makes it more difficult for a government established and governed under a democratic
constitution, to engage in official acts that run contrary to the basic tenets of democracy and
civil rights. If a government insists on proceeding otherwise, the courts will stand in defense of
the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of national governmental
instrumentalities, and the principle of republicanism all ensure that the constitutional
government retains significant powers and prerogatives, for it is through such measures that it
can exercise sovereign will in behalf of the people. Concession to those presidential privileges
and prerogatives should be made if due. The abuses of past executive governments should not
detract from these basic governmental powers, even as they may warrant a greater degree of
wariness from those institutions that balance power and the people themselves. And the rule of
law should prevail above all. The damage done by martial rule was not merely personal but
institutional, and the proper rebuke to the caprices and whims of the iniquitous past is to respect
the confines of the restored rule of law.[32]
Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to
matching PP 1081. It is a rank insult to those of us who suffered or stood by those
oppressed under PP 1081 to even suggest that the innocuous PP 1017 is of equivalent
import.
PP 1017 Does Not Purport or

Pretend that the President Has
The Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017 and PP 1081, harped upon
by some of the petitioners and alluded to by the majority. PP 1017 contains a command to the
Armed Forces "to enforce obedience to all the laws and to all decrees, orders and regulations by
[the President]". A similar command was made under PP 1081. That in itself should not be a
cause of surprise, since both PP 1017 and PP 1081 expressly invoked the "calling out" power,
albeit in different contexts.
The majority however considers that since the President does not have the power to issue
decrees, PP 1017 is unconstitutional insofar as it enforces obedience "to all decrees." For one, it
should be made clear that the President currently has no power to issue decrees, and PP 1017 by
no measure seeks to restore such power to the President. Certainly, not even a single decree was
issued by President Arroyo during the several days PP 1017 was in effect, or during her term
thus far for that matter.
At the same time, such power did once belong to the President during the Marcos era and was
extensively utilized by President Marcos. It has to be remembered that chafed as we may have
under some of the Marcos decrees, per the 1987 Constitution they still remain as part of the law
of the land unless particularly stricken down or repealed by subsequent enactments. Indeed,
when the President calls upon the Armed Forces to enforce the laws, those subsisting
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
presidential decrees issued by President Marcos in the exercise of his legislative powers are
included in the equation.
This view is supported by the rules of statutory construction. The particular passage in PP 1017
reads '"to enforce obedience to all the laws and to all decrees, orders and regulations," with the
phrases "all the laws and to all decrees" separated by a comma from "orders and regulations
promulgated by me." Inherently, laws and those decrees issued by President Marcos in the
exercise of his legislative powers, and even those executive issuances of President Aquino in the
exercise of her legislative powers, belong to the same class, superior in the hierarchy of laws
than "orders and regulations." The use of the conjunction "and" denotes a joinder or union,
"relating the one to the other."[33] The use of "and" establishes an association between laws and
decrees distinct from orders and regulations, thus permitting the application of the doctrine of
noscitur a sociis to construe "decrees" as those decrees which at present have the force of law.
The dividing comma further signifies the segregation of concepts between ""laws and decrees"
on one hand, and "orders and regulations" on the other.
Further proof that "laws and decrees" stand as a class distinct from "orders and regulations" is
the qualifying phrase "promulgated by me," which necessarily refers only to orders and
regulations. Otherwise, PP 1017 would be ridiculous in the sense that the obedience to be
enforced only relates to laws promulgated by President Arroyo since she assumed office in
2001. "Laws and decrees" do not relate only to those promulgated by President Arroyo, but
other laws enacted by past sovereigns, whether they be in the form of the Marcos presidential
decrees, or acts enacted by the American Governor-General such as the Revised Penal Code.
Certainly then, such a qualification sufficiently addresses the fears of the majority that PP 1017
somehow empowers or recognizes the ability of the current President to promulgate decrees.
Instead, the majority pushes an interpretation that, if pursued to its logical end, suggests that the
President by virtue of PP 1017 is also arrogating unto herself, the power to promulgate laws,
which are in the mold of enactments from Congress. Again, in this respect, the grouping of
"laws" and "decrees" separately from "orders" and "regulations" signifies that the President has
not arrogated unto herself the power to issue decrees in the mold of the infamous Marcos
decrees.
Moreover, even assuming that PP 1017 was intended to apply to decrees which the current
President could not very well issue, such intention is of no consequence, since the proclamation
does not intend or pretend to grant the President such power in the first place. By no measure of
contemplation could PP 1017 be interpreted as reinstating to the President the power to issue
decrees.
I cannot see how the phrase "enforce obedience to decrees" can be the source of constitutional
mischief, since the implementation of PP 1017 will not vest on the President the power to issue
such decrees. If the Court truly feels the need to clarify this point, it can do so with the
expediency of one sentence or even a footnote. A solemn declaration that the phrase is
unconstitutional would be like killing a flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of
The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in relation to
the citizenry, the courts or on Congress. Still, there is another purpose and dimension behind PP
1017 that fall within the valid prerogatives of the President.
The President, as head of state, is cast in a unique role in our polity matched by no other
individual or institution. Apart from the constitutional powers vested on the President lie those
powers rooted in the symbolic functions of the office. There is the common expectation that the
President should stand as the political, moral and social leader of the nation, an expectation not
referred to in of the oath of office, but expected as a matter of tradition. In fact, a President may
be cast in crisis even if the Chief Executive has broken no law, and faithfully executed those
laws that exist, simply because the President has failed to win over the hearts and minds of the
citizens. As a Princeton academic, Woodrow Wilson once observed that with the People, the
President is everything, and without them nothing, and the sad decline of his own eventual
presidency is no better proof of the maxim. Such are among the vagaries of the political office,
and generally beyond judicial relief or remedy.
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Justice Robert Jackson's astute observation in Youngstown Sheet & Tube Co. v. Sawyer[34] on
the unique nature of the presidency, has been widely quoted:
Executive power has the advantage of concentration in a single head in whose choice
the whole Nation has a part, making him the focus of public hopes and expectations.
In drama, magnitude, and finality, his decisions so far overshadow any others that
almost alone he fills the public eye and ear. No other personality in public life can
begin to compete with him in access to the public mind through modern methods of
communications. By his prestige as head of state and his influence upon public
opinion he exerts a leverage upon those who are supposed to check and balance his
power which often cancels their effectiveness.[35]
Correspondingly, the unique nature of the office affords the President the opportunity to
profoundly influence the public discourse, not necessarily through the enactment or
enforcement of laws, but specially by the mere expediency of taking a stand on the issues of the
day. Indeed, the President is expected to exercise leadership not merely through the proposal
and enactment of laws, but by making such vital stands. U.S. President Theodore Roosevelt
popularized the notion of the presidency as a "bully pulpit", in line with his belief that the
President was the steward of the people limited only by the specific restrictions and prohibitions
appearing in the Constitution, or impleaded by Congress under its constitutional powers.
Many times, the President exercises such prerogative as a responsive measure, as after a mass
tragedy or calamity. Indeed, when the President issues a declaration or proclamation of a state of
national mourning after a disaster with massive casualties, while perhaps de rigeur, is not the
formalistic exercise of tradition, but a statement that the President, as the representative of the
Filipino people, grieves over the loss of life and extends condolences in behalf of the people to
the bereaved. This is leadership at its most solemn.
Yet the President is not precluded, in the exercise of such role, to be merely responsive. The
popular expectation in fact is of a pro-active, dynamic chief executive with an ability to identify
problems or concerns at their incipience and to respond to them with all legal means at the
earliest possible time. The President, as head of state, very well has the capacity to use the office
to garner support for those great national quests that define a civilization, as President Kennedy
did when by a mere congressional address, he put America on track to the goal of placing a man
on the moon. Those memorable presidential speeches memorized by schoolchildren may have
not, by themselves, made operative any law, but they served not only merely symbolic
functions, but help profoundly influence towards the right direction, the public opinion in the
discourse of the times. Perhaps there was no more dramatic example of the use of the "bully
pulpit" for such noble purposes than in 1964, when an American President from Texas stood
before a Congress populated by many powerful bigots, and fully committed himself as no other
President before to the cause of civil rights with his intonation of those lines from the civil
rights anthem, "we shall overcome."
From an earlier era in American history, Lincoln's Emancipation Proclamation stands out as a
presidential declaration which clearly staked American polity on the side of the democratic
ideal, even though the proclamation itself was of dubitable legal value. The proclamation, in
short form, "freed the slaves", but was not itself free of legal questions. For one, the notion that
the President could, by himself, alter the civil and legal status of an entire class of persons was
dubious then and now, although President Lincoln did justify his action as in the exercise of his
powers as commander-in-chief during wartime, "as a fit and necessary war measure for
suppressing [the] rebellion." Moreover, it has been pointed out that the Proclamation only freed
those slaves in those states which were then in rebellion, and it eventually took the enactment of
the Thirteenth Amendment of the U.S. Constitution to legally abolish involuntary servitude.[36]
Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still stands as a
defining example not only of the Lincoln Presidency, but of American democratic principles. It
may be remembered to this day not exactly as an operational means by which slaves were
actually freed, but as a clear rhetorical statement that slavery could no longer thenceforth stand.
The President as Chief Government Spokesperson of the democratic ideals is entrusted with a
heady but comfortable pursuit. But no less vital, if somewhat graver, is the role of the President
as the Chief Defender of the democratic way of life. The "calling out" power assures the
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President such capability to a great extent, yet it will not fully suffice as a defense of democracy.
There is a need for the President to rally the people to defend the Constitution which guarantees
the democratic way of life, through means other than coercive. I assert that the declaration of a
state of emergency, on premises of a looming armed threat which have hardly been disputed,
falls within such proper functions of the President as the defender of the Constitution. It was
designed to inform the people of the existence of such a threat, with the expectation that the
citizenry would not aid or abet those who would overturn through force the democratic
government. At the same time, the Proclamation itself does not violate the Constitution as it
does not call for or put into operation the suspension or withdrawal of any constitutional rights,
or even create or diminish any substantive rights.
I submit that it would be proper for the Court to recognize that PP 1017 strikes a commendable
balance between the Constitution, the "calling out" power, and the inherent function of the
Presidency as defender of the democratic constitution. PP 1017 keeps within the scope and
limitations of these three standards. It asserts the primacy of the democratic order, civilian
control over the armed forces, yet respects constitutional and statutory guarantees of the people.
II.
Section 17, Article XII
of the Constitution
In Relation to PP 1017
My next issue with the majority pertains to the assertion that the President does not have the
power to take over public utilities or businesses impressed with public interest under Section 17,
Article XII of the Constitution without prior congressional authorization. I agree that the power
of the State to take over such utilities and businesses is highly limited, and should be viewed
with suspicion if actually enforced.
Yet qualifications are in order with regard to how Section 17, Article XII actually relates of PP
1017.
I agree with the majority that a distinction should be asserted as between the power of the
President to declare a state of emergency, and the exercise of emergency powers under Section
17, Article XII. The President would have the power to declare a state of emergency even
without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face and as applied, did not
involve the actual takeover of any public utility or business impressed with public interest. To
some minds, the police action in relation to the Daily Tribune may have flirted with such power,
yet ultimately the newspaper was able to independently publish without police interference or
court injunction. It may be so that since PP 1017 did make express reference to Section 17,
Article XII, but it should be remembered that the constitutional provision refers to a two-fold
power of the State to declare a national emergency and to take over such utilities and
enterprises. The first power under Section 17, Article XII is not distinct from the power of the
President, derived from other constitutional sources, to declare a state of national emergency.
Reference to Section 17, Article XII in relation to the power to declare a state of national
emergency is ultimately superfluous. A different situation would obtain though if PP 1017 were
invoked in the actual takeover of a utility or business, and in such case, full consideration of the
import of Section 17, Article XII would be warranted. But no such situation obtains in this case,
and any discussion relating to the power of the State to take over a utility or business under
Section 17, Article XII would ultimately be obiter dictum.
I respectfully submit that the Court, in these petitions, need not have engaged this potentially
contentious issue, especially as it extends to whether under constitutional contemplation, the
President may act in behalf of the State in exercising the powers under Section 17, Article XII.
Nonetheless, considering that the majority has chosen to speak out anyway, I will express
agreement that as a general rule, the President may exercise such powers under Section 17,
Article XII only under the grant of congressional approval. Certainly, the notion that
congressional authority is required under Section 17, Article XII is not evident from the
provision. Even Fr. Bernas notes that Section 17 does not require, as does Article VI, Section
23(2), that the authorization be "by law", thus leaving the impression that the authorization can
come from the President.[37]
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After the 1989 coup d'etat, President Aquino issued issued Proclamation No. 503 on 6
December 1989, declaring a state of national emergency, and referring therein to Section 17,
Article XII by citing the entire provision. The declaration was subsequently reaffirmed by
Congress when two weeks after, it enacted Republic Act No. 6826. Notably, Section 3(3) of the
law authorized the President "to temporarily takeover or direct the operation of any privately-
owned public utility or business affected with public interest that violates the herein declared
national policy". Tellingly, however, such authority was granted by Congress expressly
"pursuant to Article VI, Section 23(2) of the Constitution", and not the take-over provision in
Section 17, Article XII. Evidently, the view that Section 17, Article XII requires prior
congressional authority has some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17 as requiring congressional

authority or approval before the takeover under the provision may be effected. After all, the
taking over of a privately owned public utility or business affected with public interest would
involve an infringement on the right of private enterprise to profit; or perhaps even
expropriation for a limited period. Constitutionally, the taking of property can only be
accomplished with due process of law,[38] and the enactment of appropriate legislation
prescribing the terms and conditions under which the President may exercise the powers of the
State under Section 17 stands as the best assurance that due process of law would be observed.
The fact that Section 17 is purposely ambivalent as to whether the President may exercise the
power therein with or without congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in extreme situations wherein
obtention of congressional authority is impossible or inexpedient considering the emergency. I
thus dissent to any proposition that such requirement is absolute under all circumstances. I
maintain that in such extreme situations, the President may exercise such authority subject to
judicial review.
It should be admitted that some emergencies are graver and more imminent than others. It is not
within the realm of impossibility that by reason of a particularly sudden and grave emergency,
Congress may not be able to convene to grant the necessary congressional authority to the
President. Certainly, if bombs from a foreign invader are falling over Manila skies, it may be
difficult, not to mention unnecessarily onerous, to require convening Congress before the
President may exercise the functions under Section 17, Article XII. The proposition of the
majority may be desirable as the general rule, but the correct rule that should be adopted by the
Court should not be so absolute so as to preclude the exercise by the President of such power
under extreme situations.
In response to this argument, the majority cites portions of Araneta v. Dinglasan,[39] most
pertinent of which reads: "The point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of crisis no matter how serious."
For one, Araneta did not involve a situation wherein the President attempted to exercise
emergency powers without congressional authority; concerning as it did the exercise by
President Quirino of those emergency powers conferred several years earlier by Congress to
President Quezon at the onset of the Pacific phase of World War II. The Court therein ruled that
the emergency that justified then the extraordinary grant of powers had since expired, and that
there no longer existed any authority on the part of the President to exercise such powers,
notwithstanding that the law, Commonwealth Act No. 671, "did not in term fix the duration of
its effectiveness".
Clearly, the context in which the Court made that observation in Araneta is not the same context
within which my own observations oscillate. My own submission is premised on the extreme
situation wherein Congress may be physically unable to convene, an exceptional circumstance
which the hard-line stance of the majority makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded that such extreme circumstance
could occur, when it noted President Quezon's claim that he was impelled to call for a special
session of the National Assembly after foreseeing that "it was most unlikely that the Philippine
Legislature would hold its next regular session which was to open on January 1, 1942."[40] That
the National Assembly then was able to convene and pass Commonwealth Act No. 671 was
fortunate, but somewhat a luxury nonetheless. Indeed, it is not beyond the realm of possibility
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that the emergency contemplated would be so grave that a sufficient number of members of
Congress would be physically unable to convene and meet the quorum requirement.
Ultimately though, considering that the authorized or actual takeover under Section 17, Article
XII, is not presented as a properly justiciable issue. Nonetheless, and consistent with the general
tenor, the majority has undertaken to decide this non-justiciable issue, and to even place their
view in the dispositive portion in a bid to enshrine it as doctrine. In truth, the Court's
pronouncement on this point is actually obiter. It is hoped that should the issue become ripe for
adjudication before this Court, the obiter is not adopted as a precedent without the qualification
that in extreme situations wherein congressional approval is impossible or highly impractical to
obtain, the powers under Section 17, Article XII may be authorized by the President.
III.
Overbreadth and "Void for Vagueness"
Doctrines Applicable Not Only To
Free Speech Cases
The majority states that "the overbreadth doctrine is an analytical tool developed for testing "on
their faces" statutes in free speech cases"[41], and may thus be entertained "in cases involving
statutes which, by their terms, seek to regulate only "spoken words", and not conduct. A similar
characterization is made as to the "void for vagueness" doctrine, which according to the
majority, is "subject to the same principles governing overbreadth doctrine " also an analytical
tool for testing "on their faces" statutes in free speech cases."[42]
As I noted in my Separate Opinion in Romualdez v. Sandiganbayan,[43] citing Justice Kapunan,

there is a viable distinction between "void for vagueness" and "overbreadth" which the majority
sadly ignores.
A view has been proferred that "vagueness and overbreadth doctrines are not
applicable to penal laws." These two concepts, while related, are distinct from each
other. On one hand, the doctrine of overbreadth applies generally to statutes
that infringe upon freedom of speech. On the other hand, the "void-for-
vagueness" doctrine applies to criminal laws, not merely those that regulate
speech or other fundamental constitutional right. (not merely those that
regulate speech or other fundamental constitutional rights.) The fact that a
particular criminal statute does not infringe upon free speech does not mean that a
facial challenge to the statute on vagueness grounds cannot succeed.[44]
The distinction may prove especially crucial since there has been a long line of cases in
American Supreme Court jurisprudence wherein penal statutes have been invalidated on the
ground that they were "void for vagueness." As I cited in Romualdez v. Sandiganbayan,[45]
these cases are Connally v. General Construction Co,.[46] Lanzetta v. State of New Jersey,[47]
Bouie v. City of Columbia,[48] Papachristou v. City of Jacksonville,[49] Kolender v. Lawson,[50]
and City of Chicago v. Morales.[51]
Granting that perhaps as a general rule, overbreadth may find application only in "free speech"
[52] cases, it is on the other hand very settled doctrine that a penal statute regulating conduct, not
speech, may be invalidated on the ground of "void for vagueness". In Romualdez, I decried the
elevation of the suspect and radical new doctrine that the "void for vagueness" challenge cannot
apply other than in free speech cases. My view on this point has not changed, and insofar as the
ponencia would hold otherwise, I thus dissent.
Moreover, even though the argument that an overbreadth challenge can be maintained only in
free speech cases has more jurisprudential moorings, the rejection of the challenge on that basis
alone may prove unnecessarily simplistic. I maintain that there is an even stronger ground
on which the overbreadth and "void for vagueness" arguments can be refuted â”€ that
Presidential Proclamation 1017 (PP 1017) neither creates nor diminishes any rights or
obligations whatsoever. In fact, I submit again that this proposition is the key perspective
from which the petitions should be examined.
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IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is generally constitutional. However,
they make an unnecessary distinction with regard to "acts of terrorism", pointing out that
Congress has not yet passed a law defining and punishing terrorism or acts of terrorism.
That may be the case, but does the majority seriously suggest that the President or the State is
powerless to suppress acts of terrorism until the word "terrorism" is defined by law? Terrorism
has a widely accepted meaning that encompasses many acts already punishable by our general
penal laws. There are several United Nations and multilateral conventions on terrorism[53], as
well as declarations made by the United Nations General Assembly denouncing and seeking to
combat terrorism.[54] There is a general sense in international law as to what constitutes
terrorism, even if no precise definition has been adopted as binding on all nations. Even without
an operative law specifically defining terrorism, the State already has the power to suppress and
punish such acts of terrorism, insofar as such acts are already punishable, as they almost always
are, in our extant general penal laws. The President, tasked with the execution of all existing
laws, already has a sufficient mandate to order the Armed Forces to combat those acts of
terrorism that are already punishable in our Revised Penal Code, such as rebellion, coup d'etat,
murder, homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts which
under normal contemplation would constitute terrorism are associated anyway with or
subsumed under lawless violence, which is a term found in the Constitution itself. Thus long
ago, the State has already seen it fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts, since
such power belongs to the legislative alone. Fortunately, General Order No. 5 does not assume
to make such redefinitions. It may have been a different matter had General Order No. 5
attempted to define "acts of terrorism" in a manner that would include such acts that are not
punished under our statute books, but the order is not comported in such a way. The proper
course of action should be to construe "terrorism" not in any legally defined sense, but in its
general sense. So long as it is understood that "acts of terrorism" encompasses only those acts
which are already punishable under our laws, the reference is not constitutionally infirm.
The majority cites a theoretical example wherein a group of persons engaged in a drinking spree
may be arrested by the military or police in the belief that they were committing acts of
terrorism pursuant to General Order No. 5. Under the same logical framework that group of
persons engaged in a drinking spree could very well be arrested by the military or police in the
belief that they are committing acts of lawless violence pursuant to General Order No. 5, instead
of acts of terrorism. Obviously such act would be "abuse and oppression" on the part of the
military and the police, whether justified under "lawless violence" or "acts of terrorism". Yet
following the logic of the majority, the directive to prevent acts of "lawless violence" should be
nullified as well.
If the point of the majority is that there are no justiciable standards on what constitutes acts of
terrorism, it should be pointed out that only the following scenarios could ensue. For one, a
person would actually be arrested and charged with "acts of terrorism", and such arrest or
charge would be thrown out of the courts, since our statute books do not criminalize the specific
crime of terrorism. More probably, a person will be arrested and charged for acts that may under
the layperson's contemplation constitutes acts of terrorism, but would be categorized in the
information and charge sheet as actual crimes under our Revised Penal Code. I simply cannot
see how General Order No. 5 could validate arrests and convictions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of definition and possible broad context
of "acts of terrorism", seems to be positively applying the arguments of "overbreadth" or "void
for vagueness", arguments which they earlier rejected as applicable only in the context of free
expression cases. The inconsistency is breath-taking. While I disagree with the majority-
imposed limitations on the applicability of the "overbreadth" or "void for vagueness" doctrines,
I likewise cannot accede to the application of those doctrines in the context of General Order
No. 5, for the same reason that they should not apply to PP 1017. Neither General Order No. 5
nor PP 1017 is a penal statute, or have an operative legal effect of infringing upon liberty,
expression or property. As such, neither General Order No. 5 nor PP 1017 can cause the
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deprivation of life, liberty or property, thus divorcing those issuances from the context of the
due process clause. The same absence of any binding legal effect of these two issuances
correspondingly disassociates them from the constitutional infringement of free expression or
association. Neither "void for vagueness" nor "overbreadth" therefore lie.
Another point. The majority concludes from General Order No. 5 that the military or police is
limited in authority to perform those acts that are "necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence," and such acts
committed beyond such authority are considered illegal. I do not dispute such conclusion, but it
must be emphasized that "necessary and appropriate actions and measures" precisely do not
authorize the military or police to commit unlawful and unconstitutional acts themselves, even
if they be geared towards suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or obligations, or diminish existing ones,
it necessarily follows that General Order No. 5, even if premised on a state of emergency,
cannot authorize the military or police to ignore or violate constitutional or statutory
rights, or enforce laws completely alien to the suppression of lawless violence. Again,
following the cardinal principle of legal hermeneutics earlier adverted to, General Order No. 5
should be viewed in harmony with the Constitution, and only if it the Order irreconcilably
deviates from the fundamental law should it be struck down.
V.
Court Should Refrain Making Any
Further Declaration, For Now,
Relating to the Individual Grievances
Raised by the Petitioners in Relation
To PP 1017
I respectfully disagree with the manner by which the majority would treat the "void as applied"
argument presented by the petitioners. The majority adopts the tack of citing three particular
injuries alleged by the petitioners as inflicted with the implementation of PP 1017. The majority
analyzes the alleged injuries, correlates them to particular violations of the Bill of Rights, and
ultimately concludes that such violations were illegal.
The problem with this approach is that it would forever deem the Court as a trier or reviewer at
first instance over questions involving the validity of warrantless arrests, searches, seizures and
the dispersal of rallies, all of which entail a substantial level of factual determination. I agree
that PP 1017 does not expand the grounds for warrantless arrests, searches and seizures or
dispersal of rallies, and that the proclamation cannot be invoked before any court to assert the
validity of such unauthorized actions. Yet the problem with directly adjudicating that the
injuries inflicted on David, et al., as illegal, would be that such would have been done with
undue haste, through an improper legal avenue, without the appropriate trial of facts, and
without even impleading the particular officers who effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the petitioners upon the implementation of
PP 1017 are a source of grave concern. Indubitably, any person whose statutory or constitutional
rights were violated in the name of PP 1017 or General Order No. 5 deserves redress in the
appropriate civil or criminal proceeding, and even the minority wishes to makes this point as
emphatically clear, if not moreso, as the majority. Yet a ruling from this Court, without the
proper factual basis or prayer for remuneration for the injury sustained, would ultimately
be merely symbolic. While the Court will not be harmed by a symbolic reaffirmation of
commitment to the principles in the Bill of Rights, it will be harmed by a ruling that
unduly and inappropriately expands the very limited function of the Court as a trier of
facts on first instance.
In my dissent in Teves v. Sandiganbayan,[55] I alluded to the fact that our legal system may run
counter-intuitive in the sense that the seemingly or obviously guilty may still, after trial, be
properly acquitted or exonerated; to the extent that even an accused who murders another
person in front of live television cameras broadcast to millions of sets is not yet necessarily
guilty of the crime of murder or homicide.[56] Hence, the necessity of a proper trial so as to
allow the entire factual milieu to be presented, tested and evaluated before the court. In my
theoretical example, the said accused should nonetheless be acquitted if the presence of
exempting circumstances is established. The same principle applies in these cases. Certainly, we
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in the Court can all agree that PP 1017 cannot be invoked to justify acts by the police or military
officers that go beyond the Constitution and the laws. But the course of prudence dictates that
the pronouncement of such a doctrine, while enforceable in a court of law, should not yet extend
itself to specific examples that have not yet been properly litigated. The function of this Court
is to make legal pronouncements not based on "obvious" facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures were "illegal" would likewise
preclude any meaningful review or reevaluation of pertinent legal doctrines that otherwise could
have been reexamined had these acts been properly challenged in regular order. For example,
the matter of the warrantless arrests in these cases could have most certainly compelled the
Court to again consider the doctrine laid down in Umil v. Ramos on warrantless arrests and
rebellion as a continuing crime, a doctrine that may merit renewed evaluation. Yet any healthy
reexamination of Umil, or other precedents for that matter, require the presentation and trial of
the proper factual predicates, a course which the majority unfortunately "short-cuts" in this
present decision.
Of course, despite the grandiloquent pronouncement by the majority that the acts complained of
by the petitioners and implemented pursuant to General Order No. 5 are illegal, it could
nonetheless impose civil, criminal or administrative sanctions on the individual police officers
concerned, as these officers had not been "individually identified and given their day in court".
Of course, the Court would be left with pie on its face if these persons, once "given their day in
court", would be able to indubitably establish that their acts were actually justified under law.
Perhaps worse, the pronouncement of the majority would have had the effect of prejudging
these cases, if ever lodged, even before trial on the merits.
Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify
violation of statutory or constitutional rights (a declaration which the minority would have no
qualms assenting to) would sufficiently arm those petitioners and other persons whose rights
may have been injured in the implementation of PP 1017, with an impeccable cause of action
which they could pursue against the violators before the appropriate courts. At the same time, if
the officers or officials concerned have basis to contend that no such rights were violated, for
justifications independent of PP 1017 or General Order No. 5, such claims could receive due
consideration before the courts. Such a declaration would squarely entrench the Court as a
defender of the Bill of Rights, foster enforceable means by which the injured could seek actual
redress for the injury sustained, and preserve the integrity and order of our procedural law.
VI.
Conclusion
The country-wide attention that the instant petitions have drawn should not make the Court lose
focus on its principal mission, which is to settle the law of the case. On the contrary, the highly
political nature of these petitions should serve as forewarning for the Court to proceed ex
abundante cautelam, lest the institution be unduly dragged into the partisan mud. The credibility
of the Court is ensured by making decisions in accordance with the Constitution without regard
to the individual personalities involved; with sights set on posterity, oblivious of the popular
flavor of the day.
By deciding non-justiciable issues and prejudging cases and controversies without a proper trial
on the merits, the majority has diminished the potency of this Court's constitutional power in
favor of rhetorical statements that afford no quantifiable relief. It is for the poet and the
politician to pen beautiful paeans to the people's rights and liberties, it is for the Court to
provide for viable legal means to enforce and safeguard these rights and liberties. When the
passions of these times die down, and sober retrospect accedes, the decision of this Court in
these cases will be looked upon as an extended advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested and
tasked with preserving our civil liberties. They may even stand, in the appropriate contexts, as
viable partisan political issues. But the plain fact remains that, under legal contemplation, these
issuances are valid on their face, and should result in no constitutional or statutory breaches if
applied according to their letter.
I vote to DISMISS all the petitions.
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
[1] G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.
[2] R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.
[3]"When a statute is reasonably susceptible of two constructions, one constitutional and the
other unconstitutional, that construction in favor of its constitutionality shall be adopted and the
construction that will render it invalid rejected." See R. Agpalo, id., at 266; citing Mutuc v.
COMELEC, G.R. No. 32717, Nov. 26, 1970, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land
Tenure Adm., G.R. No. 21064, Feb. 18, 1970, 31 SCRA 413; American Bible Society v. City of
Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil. 683 (1957); Maddumba v. Ozaeta,
82 Phil. 345 (1948); Benguet Exploration, Inc. v. Department of Agriculture and Natural
Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA 285 (1977); De la Cruz v. Paras, G.R. No.
42591, July 25, 1983, 123 SCRA 569.
[4] See Constitution, Section 17, Article VII.
[7]The plenary legislative power being vested in Congress. See Constitution, Section 1, Article
VI.
[8] "[The President] shall ensure that the laws be faithfully executed." See Constitution, Section
17, Article VII.
[9] Supra note 4.
[10]"No officer or employee of the civil service shall be removed or suspended except for cause
provided by law." See Constitution, Section 2(3), Article IX-B.
[11] See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760, 763.
[12] See Administrative Code, Section 4, Chapter 2, Book III.
[13] See Section 18, Article VII, Constitution.
[14] 392 Phil. 618 (2000)
[15] Id. at 627.
[16] Id. at 644.
[17] Id. at 636.
[18] Id. at 643.
[19] Id.
[20] Sanlakas v. Executive Secretary, supra note 1, at 668.
[21] Id. at 677.
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
[22] Supra note 8.
[23] Thedeclaration of martial law then within the President to make under authority of Section
10(2), Article VII of the 1935 Constitution.
[24] No. L-35546, 17 September 1974, 59 SCRA 183.
[25] Aquino, Jr. v. Enrile, id. at 240-241.
[26] Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.
[27] Id. at 398-399, Barredo, J., concurring.
[28]Id. at 405-406, Barredo, J., concurring.
[29] Id. at 423, Barredo, J., concurring.
[30] Constitution, Section 18, Article VII.
[31] Constitution, Section 18, Article VII.
[32] See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.
[33] See R. Agpalo, Statutory Construction, p. 206.
[34] 343 U.S. 579, 653-654, J. Jackson, concurring.
[35] Ibid.
[36] See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., at 119-120.
[37]
See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 2003 ed., at 1183.
[38] See Section 1, Article III, Constitution.
[39] 84 Phil. 368 (1949).
[40] Id. at 379.
[41] Decision, infra.
[42] Id.
[43] G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
[44]Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan, dissenting, at pp.
382-384.
[45] Id., at 398-401.
[46] 269 U.S. 385, 393 (1926).
[47] 306 U.S. 451 (1939).
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
[48] 378 U.S. 347 (1964).
[49] 405 U.S. 156 (1972).
[50] 461 U.S. 352 (1983).
[51] Case No. 97-1121, 10 June 1999.
[52]But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme Court
invalidated a portion of the Subversive Control Activities Act on the ground of overbreadth as it
sought to proscribe the exercise the right of free association, also within the First Amendment of
the United States Constitution but a distinct right altogether from free expression.
[53] To name a few, the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents (1973); International
Convention for the Suppression of Terrorist Bombings (1997); International Convention for the
Suppression of the Financing of Terrorism (1999); the International Convention for the
Suppression of Acts of Nuclear Terrorism (2005). See "United Nations Treaty Collection -
Conventions on Terrorism", http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April
2006).
[54]See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assembly on 17
February 1995.
[55] G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga, dissenting.
[56] Id. at 345.
CONCURRING OPINION
YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of men's minds.
-Harold J. Laski, Professor of Government and Member of the British Labor Party,
in his book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo
once wrote, are preserved against the assaults of opportunism, the expediency of the passing
hour, the erosion of small encroachments, the scorn and derision of those who have no patience
with general principles.[1] In an open and democratic society, freedom of thought and
expression is the matrix, the indispensable condition, of nearly every other form of freedom.[2]
I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President
Gloria Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO
No. 5), issued by the President pursuant to the same proclamation are both partly
unconstitutional.
I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President,
as the Commander-in-Chief of all armed forces of the Philippines, of her power to call out such
armed forces whenever it becomes necessary to prevent or suppress lawless violence,
invasion or rebellion. This is allowed under Section 18, Article VII of the Constitution.
However, such "calling out" power does not authorize the President to direct the armed forces or
the police to enforce laws not related to lawless violence, invasion or rebellion. The same does
not allow the President to promulgate decrees with the force and effect similar or equal to laws
as this power is vested by the Constitution with the legislature. Neither is it a license to conduct
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
searches and seizures or arrests without warrant except in cases provided in the Rules of Court.
It is not a sanction to impose any form of prior restraint on the freedom of the press or
expression or to curtail the freedom to peaceably assemble or frustrate fundamental
constitutional rights.
In the case of Bayan v. Ermita[3] this Court thru Justice Adolfo S. Azcuna emphasized that the
right to peaceably assemble and petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional
protection. These rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected.
On the other hand, the direct reference to Section 17, Article XII of the Constitution as the
constitutional basis for the declaration of a state of national emergency is misplaced. This
provision can be found under the article on National Economy and Patrimony which
presupposes that "national emergency" is of an economic, and not political, nature. Moreover,
the said provision refers to the temporary takeover by the State of any privately-owned public
utility or business affected with public interest in times of national emergency. In such a case,
the takeover is authorized when the public interest so requires and subject to "reasonable terms"
which the State may prescribe.
The use of the word "State" as well as the reference to "reasonable terms" under Section 17,
Article XII can only pertain to Congress. In other words, the said provision is not self-executing
as to be validly invoked by the President without congressional authorization. The provision
merely declares a state economic policy during times of national emergency. As such, it cannot
be taken to mean as authorizing the President to exercise "takeover" powers pursuant to a
declaration of a state of national emergency.
The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the
power to take over or direct the operation of any privately owned public utility or business
affected with public interest without Congressional authorization. To do so would constitute an
ultra vires act on the part of the Chief Executive, whose powers are limited to the powers vested
in her by Article VII, and cannot extend to Article XII without the approval of Congress.
Thus, the President's authority to act in times of national emergency is still subject to the
limitations expressly prescribed by Congress. This is a featured component of the doctrine of
separation of powers, specifically, the principle of checks and balances as applicable to the
political branches of government, the executive and the legislature.
With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed
forces and the national police "to prevent and suppress acts of terrorism and lawless violence in
the country." There is presently no law enacted by Congress that defines terrorism, or classifies
what acts are punishable as acts of terrorism. The notion of terrorism, as well as acts
constitutive thereof, is at best fraught with ambiguity. It is therefore subject to different
interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of what constitutes "terrorism"
have led the law enforcement officers to necessarily guess at its meaning and differ as to its
application giving rise to unrestrained violations of the fundamental guarantees of freedom of
peaceable assembly and freedom of the press.
In Kolender v. Lawson,[4] the United States Supreme Court nullified a state statute requiring
persons who loitered or wandered on streets to provide "credible and reliable" identification and
to account for their presence when requested to do so by a police officer. Writing for the
majority, Justice Sandra Day O'Connor noted that the most important aspect of vagueness
doctrine was the imposition of guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for invocation of that doctrine
was of special concern in this case because of the potential for arbitrary suppression of the
fundamental liberties concerning freedom of speech and expression, as well as restriction on the
freedom of movement.
Thus, while I recognize that the President may declare a state of national emergency as a
statement of a factual condition pursuant to our ruling in Sanlakas v. Executive Secretary,[5] I
9/16/22, 10:26 PM [ G.R. NO. 171396, May 03, 2006 ]
wish to emphasize that the same does not grant her any additional powers. Consequently, while
PP 1017 is valid as a declaration of a factual condition, the provisions which purport to vest in
the President additional powers not theretofore vested in her must be struck down. The
provision under GO No. 5 ordering the armed forces to carry out measures to prevent or
suppress "acts of terrorism" must be declared unconstitutional as well.
Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed
under the Bill of Rights cannot be preemptive in meeting any and all perceived or potential
threats to the life of the nation. Such threats must be actual, or at least gravely imminent, to
warrant government to take proper action. To allow government to preempt the happening of
any event would be akin to "putting the cart before the horse," in a manner of speaking. State
action is proper only if there is a clear and present danger of a substantive evil which the state
has a right to prevent. We should bear in mind that in a democracy, constitutional liberties must
always be accorded supreme importance in the conduct of daily life. At the heart of these
liberties lies freedom of speech and thought - not merely in the propagation of ideas we love,
but more importantly, in the advocacy of ideas we may oftentimes loathe. As succinctly
articulated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free speech and assembly.
x x x It is the function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground to believe that
the evil to be prevented is a serious one. x x x But even advocacy of violation,
however reprehensible morally, is not a justification for denying free speech where
the advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between advocacy
and incitement, between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a finding of clear and present
danger it must be shown either that immediate serious violence was to be expected
or was advocated, or that the past conduct furnished reason to believe that such
advocacy was then contemplated.[6]
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.
[1] Cardozo, B. Nature of Judicial Process, 1921.
[2] Palko v. State of Connecticut, 302 U.S. 319 (1937).
[3] G.R. Nos. 169838, 169848, 169881, April 25, 2006.
[4] 461 U.S. 352 (1983).
[5] G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.
[6]Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357
(1927).
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9/16/22, 10:26 PM [ G.R. NO.

171396, May 03, 2006 ]

522 Phil. 705

GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO,

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of

She cited the following facts as bases:

WHEREAS, the claims of these elements have been recklessly magnified by

WHEREAS, this series of actions is hurting the Philippine State - by obstructing

WHEREAS, these actions are adversely affecting the economy;

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

WHEREAS, these series of actions is hurting the Philippine State by obstructing

WHEREAS, these actions are adversely affecting the economy;

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

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

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

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

'takeover.'" National Telecommunications' Commissioner Ronald Solis urged television and

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),

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

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

Such contention lacks merit.

(1) the cases involve constitutional issues;

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

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

I. Review of Factual Bases

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

Doctrines of Several Political Theorists

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

Now, in a well-ordered society, it should never be necessary to resort to extra-

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

1) No general regime or particular institution of constitutional dictatorship should be

2) ...the decision to institute a constitutional dictatorship should never be in the

3) No government should initiate a constitutional dictatorship without making

5) ... no dictatorial institution should be adopted, no right invaded, no regular

6) The measures adopted in the prosecution of the a constitutional dictatorship

7) The dictatorship should be carried on by persons representative of every part of

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

9) The decision to terminate a constitutional dictatorship, like the decision to

A concept of constitutionalism which is less misleading in the analysis of problems

in discussing the meaning of constitutionalism, he insisted that the historical and

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

It remains a 'matter of no little difficulty' to determine when a law may properly be

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

The most distinctive feature of the overbreadth technique is that it marks an

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

First Provision: Calling-out Power

SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or

Second Provision: "Take Care" Power

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

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

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines

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

Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative

Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states: