David v. Arroyo
David v. Arroyo
Arroyo
Once again, the Court is faced with an age-old but
DECISION 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
SANDOVAL-GUTIERREZ, J.: becomes license?[3]
WHEREAS, the claims of these elements WHEREAS, over these past months, elements
in the political opposition have conspired with
have been recklessly magnified by certain
authoritarians of the extreme Left, represented by the
segments of the national media;
NDF-CPP-NPA and the extreme Right, represented
WHEREAS, this series of actions is hurting by military adventurists - the historical enemies of the
the Philippine State by obstructing governance democratic Philippine State and who are now in a
including hindering the growth of the economy and tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring
sabotaging the peoples confidence in government
and their faith in the future of this country; down the duly-constituted Government elected in
May 2004;
WHEREAS, these actions are adversely WHEREAS, these conspirators have
repeatedly tried to bring down our republican
affecting the economy;
government;
WHEREAS, these activities give totalitarian
WHEREAS, the claims of these elements have
forces of both the extreme Left and extreme Right
been recklessly magnified by certain segments of the
the opening to intensify their avowed aims to bring
down the democratic Philippine State; national media;
WHEREAS, these series of actions is hurting the Republic of the Philippines, and Commander-in-
the Philippine State by obstructing governance, Chief of the Republic of the Philippines, and pursuant
including hindering the growth of the economy and to Proclamation No. 1017 dated February 24, 2006,
sabotaging the peoples confidence in the do hereby call upon the Armed Forces of the
government and their faith in the future of this Philippines (AFP) and the Philippine National Police
country; (PNP), to prevent and suppress acts of terrorism and
lawless violence in the country;
WHEREAS, these actions are adversely
affecting the economy; I hereby direct the Chief of Staff of the AFP
and the Chief of the PNP, as well as the officers and
WHEREAS, these activities give totalitarian men of the AFP and PNP, to immediately carry out
forces; of both the extreme Left and extreme Right the the necessary and appropriate actions and
opening to intensify their avowed aims to bring down measures to suppress and prevent acts of terrorism
the democratic Philippine State; and lawless violence.
The raid, according to Presidential Chief of Staff Michael When members of petitioner KMU went to Camp Crame
Defensor, is meant to show a strong presence, to tell media to visit Beltran, they were told they could not be admitted
outlets not to connive or do anything that would help the rebels because of PP 1017 and G.O. No. 5. Two members were
in bringing down this government. The PNP warned that it arrested and detained, while the rest were dispersed by the
would take over any media organization that would not police.
follow standards set by the government during the state of
national emergency. Director General Lomibao stated that if Bayan Muna Representative Satur Ocampo eluded arrest
they do not follow the standards and the standards are - if they when the police went after him during a public forum at the Sulo
would contribute to instability in the government, or if they do Hotel in Quezon City. But his two drivers, identified as Roel
not subscribe to what is in General Order No. 5 and Proc. No. and Art, were taken into custody.
1017 we will recommend a takeover. National
Telecommunications Commissioner Ronald Solis urged Retired Major General Ramon Montao, former head of
television and radio networks to cooperate with the the Philippine Constabulary, was arrested while with his wife
government for the duration of the state of national and golfmates at the Orchard Golf and Country Club in
emergency. He asked for balanced reporting from Dasmarias, Cavite.
broadcasters when covering the events surrounding the coup
attempt foiled by the government. He warned that his agency Attempts were made to arrest Anakpawis Representative
will not hesitate to recommend the closure of any broadcast Satur Ocampo, Representative Rafael Mariano, Bayan
outfit that violates rules set out for media coverage when the Muna Representative Teodoro Casio and Gabriela
national security is threatened.[14] 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 In G.R. No. 171485, petitioners herein are Representative
indefinitely. Francis Joseph G. Escudero, and twenty one (21) other members
of the House of Representatives, including Representatives Satur
Let it be stressed at this point that the alleged violations of Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
the rights of Representatives Beltran, Satur Ocampo, et al., are Virador. They asserted that PP 1017 and G.O. No. 5 constitute
not being raised in these petitions. usurpation of legislative powers; violation of freedom of
expression and a declaration of martial law. They alleged
On March 3, 2006, President Arroyo issued PP 1021 that President Arroyo gravely abused her discretion in calling
declaring that the state of national emergency has ceased to exist. out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is
In the interim, these seven (7) petitions challenging the necessity to do so.
constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these In G.R. No. 171483, petitioners KMU, NAFLU-KMU,
petitions impleaded President Arroyo as respondent. and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo
In G.R. No. 171396, petitioners Randolf S. David, et al. the power to enact laws and decrees; (2) their issuance was
assailed PP 1017 on the grounds that (1) it encroaches on the without factual basis; and (3) they violate freedom of expression
emergency powers of Congress; (2) it is a subterfuge to avoid the and the right of the people to peaceably assemble to redress their
constitutional requirements for the imposition of martial law; grievances.
and (3) it violates the constitutional guarantees of freedom of the
press, of speech and of assembly. In G.R. No. 171400, petitioner Alternative Law Groups,
Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
In G.R. No. 171409, petitioners Ninez Cacho-Olivares unconstitutional because they violate (a) Section 4[15] of Article
and Tribune Publishing Co., Inc. challenged the CIDGs act of II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section
raiding the Daily Tribune offices as a clear case of censorship 23[19] of Article VI, and (d) Section 17[20] of Article XII of the
or prior restraint. They also claimed that the term Constitution.
emergency refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is absolutely no emergency In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et
that warrants the issuance of PP 1017. 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 1) Whether the issuance of PP 1021 renders
President of emergency powers without congressional the petitions moot and academic.
approval. In addition, petitioners asserted that PP 1017 goes 2) Whether petitioners
beyond the nature and function of a proclamation as defined in 171485 (Escudero et al.), G.R. Nos.
under the Revised Administrative Code. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda)
And lastly, in G.R. No. 171424, petitioner Loren B. have legal standing.
Legarda maintained that PP 1017 and G.O. No. 5 are B. SUBSTANTIVE:
unconstitutional for being violative of the freedom of 1) Whether the Supreme Court can review
expression, including its cognate rights such as freedom of the the factual bases of PP 1017.
press and the right to access to information on matters of public 2) Whether PP 1017 and G.O. No. 5 are
concern, all guaranteed under Article III, Section 4 of the 1987 unconstitutional.
Constitution. In this regard, she stated that these issuances a. Facial Challenge
prevented her from fully prosecuting her election protest pending b. Constitutional Basis
before the Presidential Electoral Tribunal. c. As Applied Challenge
But the power of judicial review does not repose upon the The Court holds that President Arroyos issuance of PP
courts a self-starting capacity.[23] Courts may exercise such 1021 did not render the present petitions moot and
power only when the following requisites are present: first, there academic. During the eight (8) days that PP 1017 was
must be an actual case or controversy; second, petitioners have to operative, the police officers, according to petitioners, committed
raise a question of constitutionality; third, the constitutional illegal acts in implementing it. Are PP 1017 and G.O. No. 5
question must be raised at the earliest opportunity; constitutional or valid? Do they justify these alleged illegal
and fourth, the decision of the constitutional question must be acts? These are the vital issues that must be resolved in the
necessary to the determination of the case itself.[24] present petitions. It must be stressed that an unconstitutional
act is not a law, it confers no rights, it imposes no duties, it
Respondents maintain that the first and second requisites affords no protection; it is in legal contemplation,
are absent, hence, we shall limit our discussion thereon. inoperative.[30]
An actual case or controversy involves a conflict of legal The moot and academic principle is not a magical
right, an opposite legal claims susceptible of judicial formula that can automatically dissuade the courts in resolving a
resolution. It is definite and concrete, touching the legal case. Courts will decide cases, otherwise moot and academic,
relations of parties having adverse legal interest; a real and if: first, there is a grave violation of the Constitution;[31] second,
substantial controversy admitting of specific relief.[25] The the exceptional character of the situation and the paramount
Solicitor General refutes the existence of such actual case or public interest is involved;[32] third, when constitutional issue
controversy, contending that the present petitions were rendered raised requires formulation of controlling principles to guide the
moot and academic by President Arroyos issuance of PP bench, the bar, and the public;[33] and fourth, the case is capable
1021. of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify
this Courts assumption of jurisdiction over the instant Locus standi is defined as a right of appearance in a court
petitions. Petitioners alleged that the issuance of PP 1017 and of justice on a given question.[37] In private suits, standing is
G.O. No. 5 violates the Constitution. There is no question that governed by the real-parties-in interest rule as contained in
the issues being raised affect the publics interest, involving as Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
they do the peoples basic rights to freedom of expression, of amended. It provides that every action must be prosecuted or
assembly and of the press. Moreover, the Court has the duty to defended in the name of the real party in
formulate guiding and controlling constitutional precepts, interest. Accordingly, the real-party-in interest is the
doctrines or rules. It has the symbolic function of educating the party who stands to be benefited or injured by the judgment
bench and the bar, and in the present petitions, the military and in the suit or the party entitled to the avails of the
the police, on the extent of the protection given by constitutional suit.[38] Succinctly put, the plaintiffs standing is based on his
guarantees.[35] And lastly, respondents contested actions are own right to the relief sought.
capable of repetition. Certainly, the petitions are subject to
judicial review.
The difficulty of determining locus standi arises in public
In their attempt to prove the alleged mootness of this case, suits. Here, the plaintiff who asserts a public right in
respondents cited Chief Justice Artemio V. Panganibans assailing an allegedly illegal official action, does so as a
Separate Opinion in Sanlakas v. Executive representative of the general public. He may be a person who is
Secretary.[36]
However, they failed to take into account the affected no differently from any other person. He could be suing
Chief Justices very statement that an otherwise moot case as a stranger, or in the category of a citizen, or
may still be decided provided the party raising it in a proper taxpayer. In either case, he has to adequately show that he is
case has been and/or continues to be prejudiced or damaged as entitled to seek judicial protection. In other words, he has to
a direct result of its issuance. The present case falls right make out a sufficient interest in the vindication of the public
within this exception to the mootness rule pointed out by the order and the securing of relief as a citizen or taxpayer.
Chief Justice.
Case law in most jurisdictions now allows both citizen
II- Legal Standing and taxpayer standing in public actions. The distinction was
first laid down in Beauchamp v. Silk,[39] where it was held that
In view of the number of petitioners suing in various the plaintiff in a taxpayers suit is in a different category from
personalities, the Court deems it imperative to have a more than the plaintiff in a citizens suit. In the former, the plaintiff is
passing discussion on legal standing or locus standi. affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-
concern. As held by the New York Supreme Court in People ex Chinese League of the Philippines v. Felix.[48]
rel Case v. Collins:[40] In matter of mere public right,
howeverthe people are the real partiesIt is at least the However, being a mere procedural technicality, the
right, if not the duty, of every citizen to interfere and see that requirement of locus standi may be waived by the Court in the
a public offence be properly pursued and punished, and that exercise of its discretion. This was done in the 1949 Emergency
a public grievance be remedied. With respect to taxpayers Powers Cases, Araneta v. Dinglasan,[49] where the
suits, Terr v. Jordan[41] held that the right of a citizen and a transcendental importance of the cases prompted the Court
taxpayer to maintain an action in courts to restrain the to act liberally. Such liberality was neither a rarity nor
unlawful use of public funds to his injury cannot be denied. accidental. In Aquino v. Comelec,[50] this Court resolved to
pass upon the issues raised due to the far-reaching
However, to prevent just about any person from seeking implications of the petition notwithstanding its categorical
judicial interference in any official policy or act with which he statement that petitioner therein had no personality to file the
disagreed with, and thus hinders the activities of governmental suit. Indeed, there is a chain of cases where this liberal policy
agencies engaged in public service, the United State Supreme has been observed, allowing ordinary citizens, members of
Court laid down the more stringent direct injury test in Ex Congress, and civic organizations to prosecute actions involving
Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The the constitutionality or validity of laws, regulations and
same Court ruled that for a private individual to invoke the rulings.[51]
judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct Thus, the Court has adopted a rule that even where the
injury as a result of that action, and it is not sufficient that he petitioners have failed to show direct injury, they have been
has a general interest common to all members of the public. allowed to sue under the principle of transcendental
importance. Pertinent are the following cases:
This Court adopted the direct injury test in our (1) Chavez v. Public Estates
jurisdiction. In People v. Vera,[44] it held that the person who [52]
Authority, where the Court ruled that the
impugns the validity of a statute must have a personal and enforcement of the constitutional right to
substantial interest in the case such that he has sustained, or information and the equitable diffusion of
will sustain direct injury as a result. The Vera doctrine was natural resources are matters of transcendental
upheld in a litany of cases, such as, Custodio v. President of the importance which clothe the petitioner with locus
Senate,[45] Manila Race Horse Trainers Association v. De la standi;
(3) for voters, there must be a showing of obvious
(2) Bagong Alyansang Makabayan v. interest in the validity of the election law in question;
Zamora,[53] wherein the Court held that given the
transcendental importance of the issues involved, (4) for concerned citizens, there must be a showing
the Court may relax the standing requirements that the issues raised are of transcendental importance
and allow the suit to prosper despite the lack of which must be settled early; and
direct injury to the parties seeking judicial
review of the Visiting Forces Agreement; (5) for legislators, there must be a claim that the
official action complained of infringes upon their
prerogatives as legislators.
(3) Lim v. Executive Secretary,[54] while the
Court noted that the petitioners may not file suit in
Significantly, recent decisions show a certain toughening
their capacity as taxpayers absent a showing that
in the Courts attitude toward legal standing.
Balikatan 02-01 involves the exercise of
Congress taxing or spending powers,
it reiterated its ruling in Bagong Alyansang In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the
Makabayan v. Zamora,[55] that in cases of status of Kilosbayan as a peoples organization does not give it
transcendental importance, the cases must be the requisite personality to question the validity of the on-line
settled promptly and definitely and standing lottery contract, more so where it does not raise any issue of
requirements may be relaxed. 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
By way of summary, the following rules may be culled has suffered.
from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to In Telecommunications and Broadcast Attorneys of the
sue, provided that the following requirements are met: Philippines, Inc. v. Comelec,[57] the Court reiterated the direct
injury test with respect to concerned citizens cases involving
(1) the cases involve constitutional issues; constitutional issues. It held that there must be a showing that
the citizen personally suffered some actual or threatened injury
(2) for taxpayers, there must be a claim of illegal arising from the alleged illegal official act.
disbursement of public funds or that the tax measure
is unconstitutional;
In Lacson v. Perez,[58] the Court ruled that one of the to the attention of the Court the alleged violations of their basic
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a rights.
real party-in-interest as it had not demonstrated any injury to
itself or to its leaders, members or supporters. In G.R. No. 171400, (ALGI), this Court applied the
liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga
In Sanlakas v. Executive Secretary,[59] the Court ruled that Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
only the petitioners who are members of Congress have standing Tan,[61] Association of Small Landowners in the Philippines, Inc.
to sue, as they claim that the Presidents declaration of a state of v. Secretary of Agrarian Reform,[62] Basco v. Philippine
rebellion is a usurpation of the emergency powers of Amusement and Gaming Corporation,[63] and Taada v.
Congress, thus impairing their legislative powers. As to Tuvera,[64] that when the issue concerns a public right, it is
petitioners Sanlakas, Partido Manggagawa, and Social Justice sufficient that the petitioner is a citizen and has an interest in the
Society, the Court declared them to be devoid of standing, execution of the laws.
equating them with the LDP in Lacson.
In G.R. No. 171483, KMUs assertion that PP 1017 and
Now, the application of the above principles to the present G.O. No. 5 violated its right to peaceful assembly may be
petitions. deemed sufficient to give it legal standing. Organizations may
be granted standing to assert the rights of their
The locus standi of petitioners in G.R. No. 171396, members.[65] We take judicial notice of the announcement by
particularly David and Llamas, is beyond doubt. The same the Office of the President banning all rallies and canceling all
holds true with petitioners in G.R. No. 171409, Cacho-Olivares permits for public assemblies following the issuance of PP 1017
and Tribune Publishing Co. Inc. They alleged direct injury and G.O. No. 5.
resulting from illegal arrest and unlawful search
committed by police operatives pursuant to PP 1017. Rightly so, In G.R. No. 171489, petitioners, Cadiz et al., who are
the Solicitor General does not question their legal standing. national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or
In G.R. No. 171485, the opposition Congressmen alleged potential injury which the IBP as an institution or its members
there was usurpation of legislative powers. They also raised the may suffer as a consequence of the issuance of PP No. 1017 and
issue of whether or not the concurrence of Congress is necessary G.O. No. 5. In Integrated Bar of the Philippines v.
whenever the alarming powers incident to Martial Law are Zamora,[66] the Court held that the mere invocation by the IBP
used. Moreover, it is in the interest of justice that those affected of its duty to preserve the rule of law and nothing more, while
by PP 1017 can be represented by their Congressmen in bringing undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by relaxation of the standing requirements for the petitioners in the
other groups and the whole citizenry. However, in view of the PP 1017 cases.
transcendental importance of the issue, this Court declares that
petitioner have locus standi. This Court holds that all the petitioners herein 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 Incidentally, it is not proper to implead President Arroyo
illegal disbursement of public funds. The fact that she is a as respondent. Settled is the doctrine that the President, during
former Senator is of no consequence. She can no longer sue as a his tenure of office or actual incumbency,[67]may not be sued
legislator on the allegation that her prerogatives as a lawmaker in any civil or criminal case, and there is no need to provide for it
have been impaired by PP 1017 and G.O. No. 5. Her claim that in the Constitution or law. It will degrade the dignity of the high
she is a media personality will not likewise aid her because there office of the President, the Head of State, if he can be dragged
was no showing that the enforcement of these issuances into court litigations while serving as such. Furthermore, it is
prevented her from pursuing her occupation. Her submission important that he be freed from any form of harassment,
that she has pending electoral protest before the Presidential hindrance or distraction to enable him to fully attend to the
Electoral Tribunal is likewise of no relevance. She has not performance of his official duties and functions. Unlike the
sufficiently shown that PP 1017 will affect the proceedings or legislative and judicial branch, only one constitutes the executive
result of her case. But considering once more the transcendental branch and anything which impairs his usefulness in the
importance of the issue involved, this Court may relax the discharge of the many great and important duties imposed upon
standing rules. him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is
It must always be borne in mind that the question of locus not accountable to anyone. Like any other official, he remains
standi is but corollary to the bigger question of proper exercise accountable to the people[68] but he may be removed from office
of judicial power. This is the underlying legal tenet of the only in the mode provided by law and that is by impeachment.[69]
liberality doctrine on legal standing. It cannot be doubted
that the validity of PP No. 1017 and G.O. No. 5 is a judicial B. SUBSTANTIVE
question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine I. Review of Factual Bases
society now waits with bated breath the ruling of this Court on
this very critical matter. The petitions thus call for the
application of the transcendental importance doctrine, a
Petitioners maintain that PP 1017 has no factual the imposition of Martial Law is a political or
basis. Hence, it was not necessary for President Arroyo to justiciable question.[78] Then came Garcia-Padilla v.
issue such Proclamation. Enrile which greatly diluted Lansang. It declared that there is a
need to re-examine the latter case, ratiocinating that in times of
The issue of whether the Court may review the factual war or national emergency, the President must be given
bases of the Presidents exercise of his Commander-in-Chief absolute control for the very life of the nation and the
power has reached its distilled point - from the indulgent days government is in great peril. The President, it intoned, is
of Barcelon v. Baker[70] and Montenegro v. answerable only to his conscience, the People, and God.[79]
[71]
Castaneda to the volatile era of Lansang
[72] [73]
v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla The Integrated Bar of the Philippines v. Zamora[80] -- a
[74]
v. Enrile. The tug-of-war always cuts across the line defining recent case most pertinent to these cases at bar -- echoed a
political questions, particularly those questions in regard to principle similar to Lansang. While the Court considered the
which full discretionary authority has been delegated to the Presidents calling-out power as a discretionary power
legislative or executive branch of the government.[75] Barcelon solely vested in his wisdom, it stressed that this does not
and Montenegro were in unison in declaring that the authority prevent an examination of whether such power was exercised
to decide whether an exigency has arisen belongs to the within permissible constitutional limits or whether it was
President and his decision is final and conclusive on the exercised in a manner constituting grave abuse of
courts. Lansang took the opposite view. There, the members of discretion. This ruling is mainly a result of the Courts
the Court were unanimous in the conviction that the Court has reliance on Section 1, Article VIII of 1987 Constitution which
the authority to inquire into the existence of factual bases in fortifies the authority of the courts to determine in an appropriate
order to determine their constitutional sufficiency. From the action the validity of the acts of the political
principle of separation of powers, it shifted the focus to the departments. Under the new definition of judicial power, the
system of checks and balances, under which the President courts are authorized not only to settle actual controversies
is supreme, x x x only if and when he acts within the sphere involving rights which are legally demandable and enforceable,
allotted to him by the Basic Law, and the authority to but also to determine whether or not there has been a grave
determine whether or not he has so acted is vested in abuse of discretion amounting to lack or excess of
the Judicial Department, which in this respect, is, jurisdiction on the part of any branch or instrumentality of
in turn, constitutionally supreme.[76] In the government. The latter part of the authority represents a
1973, the unanimous Court of Lansang was divided in Aquino v. broadening of judicial power to enable the courts of justice to
Enrile.[77] There, the Court was almost evenly review what was before a forbidden territory, to wit, the
divided on the issue of whether the validity of discretion of the political departments of the government.[81] It
speaks of judicial prerogative not only in terms of power but events. Thus, absent any contrary allegations, the Court is
also of duty.[82] convinced that the President was justified in issuing PP 1017
calling for military aid.
As to how the Court may inquire into the Presidents
exercise of power, Lansang adopted the test that judicial Indeed, judging the seriousness of the incidents, President
inquiry can go no further than to satisfy the Court not that the Arroyo was not expected to simply fold her arms and do nothing
Presidents decision is correct, but that the President did not to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or
act arbitrarily. Thus, the standard laid down is not correctness,
duty must not stifle liberty.
but arbitrariness.[83] In Integrated Bar of the Philippines, this
Court further ruled that it is incumbent upon the petitioner to II. Constitutionality of PP 1017 and G.O. No. 5
show that the Presidents decision is totally bereft of factual
basis and that if he fails, by way of proof, to support his Doctrines of Several Political Theorists
on the Power of the President
assertion, then this Court cannot undertake an independent
in Times of Emergency
investigation beyond the pleadings.
Petitioners failed to show that President Arroyos This case brings to fore a contentious subject -- the power
exercise of the calling-out power, by issuing PP 1017, is totally of the President in times of emergency. A glimpse at the
bereft of factual basis. A reading of the Solicitor Generals various political theories relating to this subject provides an
Consolidated Comment and Memorandum shows a detailed adequate backdrop for our ensuing discussion.
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 John Locke, describing the architecture of civil
the Magdalo D-Day, the defections in the military, particularly in government, called upon the English doctrine of prerogative to
the Philippine Marines, and the reproving statements from the cope with the problem of emergency. In times of danger to the
communist leaders. There was also the Minutes of the nation, positive law enacted by the legislature might be
Intelligence Report and Security Group of the Philippine Army
inadequate or even a fatal obstacle to the promptness of action
showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such 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 Rosseau did not fear the abuse of the emergency
sometimes even against it.[84] But Locke recognized that this dictatorship or supreme magistracy as he termed it. For
him, it would more likely be cheapened by indiscreet
moral restraint might not suffice to avoid abuse of prerogative
use. He was unwilling to rely upon an appeal to
powers. Who shall judge the need for resorting to the heaven. Instead, he relied upon a tenure of office of prescribed
prerogative and how may its abuse be avoided? Here, Locke duration to avoid perpetuation of the dictatorship.[87]
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] 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
Jean-Jacques Rousseau also assumed the need for in the form of a temporary dictatorship.[88]
temporary suspension of democratic processes of government in
time of emergency. According to him:
Nicollo Machiavellis view of emergency powers, as one
The inflexibility of the laws, which prevents them element in the whole scheme of limited government, furnished
from adopting themselves to circumstances, may, in certain an ironic contrast to the Lockean theory of prerogative. He
cases, render them disastrous and make them bring about, at recognized and attempted to bridge this chasm in democratic
a time of crisis, the ruin of the State
political theory, thus:
It is wrong therefore to wish to make political
institutions as strong as to render it impossible to suspend Now, in a well-ordered society, it should never
their operation. Even Sparta allowed its law to lapse... be necessary to resort to extra constitutional
measures; for although they may for a time be
If the peril is of such a kind that the paraphernalia of beneficial, yet the precedent is pernicious, for if the
the laws are an obstacle to their preservation, the method is practice is once established for good objects, they will
to nominate a supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign authority. In such a
in a little while be disregarded under that pretext but
case, there is no doubt about the general will, and it clear that for evil purposes. Thus, no republic will ever be
the peoples first intention is that the State shall not perfect if she has not by law provided for everything,
perish.[86] 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 Carl J. Friedrich cast his analysis in terms similar to those
of standby emergency powers to be invoked with suitable checks of Watkins.[95] It is a problem of concentrating power in a
and controls in time of national danger. He attempted government where power has consciously been divided to
forthrightly to meet the problem of combining a capacious cope with situations of unprecedented magnitude and
reserve of power and speed and vigor in its application in time of gravity. There must be a broad grant of powers, subject to
emergency, with effective constitutional restraints.[90] 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
Contemporary political theorists, addressing themselves to powers, to wit: The emergency executive must be appointed
the problem of response to emergency by constitutional by constitutional means i.e., he must be legitimate; he
democracies, have employed the doctrine of constitutional should not enjoy power to determine the existence of an
dictatorship.[91] Frederick M. Watkins saw no reason why emergency; emergency powers should be exercised under a
absolutism should not be used as a means for the defense of strict time limitation; and last, the objective of emergency
liberal institutions, provided it serves to protect action must be the defense of the constitutional order.[97]
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 Clinton L. Rossiter, after surveying the history of the
recognized the two (2) key elements of the problem of employment of emergency powers in Great Britain, France,
emergency governance, as well as all constitutional Weimar, Germany and the United States, reverted to a
governance: increasing administrative powers of the description of a scheme of constitutional dictatorship as
executive, while at the same time imposing limitation upon solution to the vexing problems presented by
[98]
that power.[93] Watkins placed his real faith in a scheme of emergency. Like Watkins and Friedrich, he stated a
constitutional dictatorship. These are the conditions of success priori the conditions of success of the constitutional
of such a dictatorship: The period of dictatorship must be dictatorship, thus:
relatively shortDictatorship should always be strictly
legitimate in characterFinal authority to determine the 1) No general regime or particular
need for dictatorship in any given case must never rest with institution of constitutional dictatorship should
the dictator himself[94] and the objective of such an be initiated unless it is necessary or even
emergency dictatorship should be strict political indispensable to the preservation of the State
conservatism. and its constitutional order
2) the decision to institute a 9) The decision to terminate a
constitutional dictatorship should never be in constitutional dictatorship, like the decision to
the hands of the man or men who will institute one should never be in the hands of the
constitute the dictator man or men who constitute the dictator. . .
4) all uses of emergency powers and 11) the termination of the crisis must
all readjustments in the organization of the be followed by a complete return as possible to
government should be effected in pursuit of the political and governmental conditions
constitutional or legal requirements existing prior to the initiation of the
constitutional dictatorship[99]
5) no dictatorial institution should be
adopted, no right invaded, no regular procedure
altered any more than is absolutely necessary Rossiter accorded to legislature a far greater role in the oversight
for the conquest of the particular crisis . . . exercise of emergency powers than did Watkins. He would
secure to Congress final responsibility for declaring the existence
6) The measures adopted in the or termination of an emergency, and he places great faith in the
prosecution of the a constitutional dictatorship
effectiveness of congressional investigating committees.[100]
should never be permanent in character or
Scott and Cotter, in analyzing the above contemporary
effect
theories in light of recent experience, were one in saying that,
7) The dictatorship should be carried on the suggestion that democracies surrender the control of
by persons representative of every part of the government to an authoritarian ruler in time of grave danger
citizenry interested in the defense of the to the nation is not based upon sound constitutional theory.
existing constitutional order. . . To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder
8) Ultimate responsibility should be realistic analysis. It matters not whether the term dictator is
maintained for every action taken under a used in its normal sense (as applied to authoritarian rulers) or is
constitutional dictatorship. . . employed to embrace all chief executives administering
emergency powers. However used, constitutional dictatorship constitutionalism for which all lovers of liberty
cannot be divorced from the implication of suspension of the must yet fight are the legal limits to arbitrary
processes of constitutionalism. Thus, they favored instead the power and a complete political responsibility of
concept of constitutionalism articulated by Charles H. government to the governed.[101]
McIlwain:
A concept of constitutionalism which is less In the final analysis, the various approaches to emergency
misleading in the analysis of problems of emergency of the above political theorists - from Locks theory of
powers, and which is consistent with the findings of prerogative, to Watkins doctrine of constitutional
this study, is that formulated by Charles H. McIlwain. dictatorship and, eventually, to McIlwains principle of
While it does not by any means necessarily exclude constitutionalism --- ultimately aim to solve one real problem
some indeterminate limitations upon the substantive in emergency governance, i.e., that of allotting increasing
powers of government, full emphasis is placed areas of discretionary power to the Chief Executive, while
upon procedural limitations, and political insuring that such powers will be exercised with a sense of
responsibility. McIlwain clearly recognized the need
political responsibility and under effective limitations and
to repose adequate power in government. And in
checks.
discussing the meaning of constitutionalism, he
insisted that the historical and proper test of
constitutionalism was the existence of adequate Our Constitution has fairly coped with this
processes for keeping government responsible. He problem. Fresh from the fetters of a repressive regime, the 1986
refused to equate constitutionalism with the Constitutional Commission, in drafting the 1987 Constitution,
enfeebling of government by an exaggerated emphasis endeavored to create a government in the concept of Justice
upon separation of powers and substantive limitations Jacksons balanced power structure.[102] Executive,
on governmental power. He found that the really legislative, and judicial powers are dispersed to the President, the
effective checks on despotism have consisted not in Congress, and the Supreme Court, respectively. Each is supreme
the weakening of government but, but rather in within its own sphere. But none has the monopoly of power in
the limiting of it; between which there is a great and times of emergency. Each branch is given a role to serve as
very significant difference. In associating limitation or check upon the
constitutionalism with limited as distinguished other. This system does not weaken the
from weak government, McIlwain meant President, it just limits his power, using the language of
government limited to the orderly procedure of
McIlwain. In other words, in times of emergency, our
law as opposed to the processes of force. The two
fundamental correlative elements of
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 Moreover, the overbreadth doctrine is not intended for
within carefully prescribed procedural limitations. testing the validity of a law that reflects legitimate state interest
in maintaining comprehensive control over harmful,
a. Facial Challenge constitutionally unprotected conduct. Undoubtedly, lawless
violence, insurrection and rebellion are considered harmful
and constitutionally unprotected conduct. In Broadrick v.
Petitioners contend that PP 1017 is void on its face Oklahoma,[105] it was held:
because of its overbreadth. They claim that its enforcement
encroached on both unprotected and protected rights under It remains a matter of no little difficulty to
Section 4, Article III of the Constitution and sent a chilling determine when a law may properly be held void on
effect to the citizens. its face and when such summary action is
inappropriate. But the plain import of our cases is,
A facial review of PP 1017, using the overbreadth at the very least, that facial overbreadth
doctrine, is uncalled for. adjudication is an exception to our traditional
rules of practice and that its function, a limited one
at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to
First and foremost, the overbreadth doctrine is an
sanction moves from pure speech toward
analytical tool developed for testing on their faces statutes conduct and that conduct even if expressive
in free speech cases, also known under the American Law as falls within the scope of otherwise valid criminal
First Amendment cases.[103] laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
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 Thus, claims of facial overbreadth are entertained in cases
of lawless violence. In United States v. Salerno,[104] the US involving statutes which, by their terms, seek to regulate only
Supreme Court held that we have not recognized an spoken words and again, that overbreadth claims, if
overbreadth doctrine outside the limited context of the entertained at all, have been curtailed when invoked against
First Amendment (freedom of speech). 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 narrowly. The factor that motivates courts to depart
speech, which is manifestly subject to state regulation. 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
Second, facial invalidation of laws is considered as suit. The Court assumes that an overbroad laws
manifestly strong medicine, to be used sparingly and very existence may cause others not before the court
to refrain from constitutionally protected speech or
only as a last resort, and is generally
[107] expression. An overbreadth ruling is designed to
disfavored; The reason for this is obvious. Embedded in
remove that deterrent effect on the speech of those
the traditional rules governing constitutional adjudication is the third parties.
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 In other words, a facial challenge using the overbreadth
not before the Court.[108] A writer and scholar in Constitutional doctrine will require the Court to examine PP 1017 and pinpoint
Law explains further: its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very
The most distinctive feature of the existence may cause others not before the Court to refrain
overbreadth technique is that it marks an
from constitutionally protected speech or expression. In Younger
exception to some of the usual rules of
v. Harris,[109] it was held that:
constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as
[T]he task of analyzing a proposed statute,
applied to him or her; if the litigant prevails, the
pinpointing its deficiencies, and requiring correction
courts carve away the unconstitutional aspects of
of these deficiencies before the statute is put into
the law by invalidating its improper applications
effect, is rarely if ever an appropriate task for the
on a case to case basis. Moreover, challengers to a
judiciary. The combination of the relative
law are not permitted to raise the rights of third
remoteness of the controversy, the impact on the
parties and can only assert their own interests. In
legislative process of the relief sought, and above
overbreadth analysis, those rules give way;
all the speculative and amorphous nature of the
challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that
on its face, not merely as applied for so that
is wholly unsatisfactory for deciding constitutional
the overbroad law becomes unenforceable until a
questions, whichever way they might be decided.
properly authorized court construes it more
And third, a facial challenge on the ground of overbreadth
is the most difficult challenge to mount successfully, since the by virtue of the power vested upon me by
challenger must establish that there can be no instance when Section 18, Artilce VII do hereby command the
the assailed law may be valid. Here, petitioners did not even Armed Forces of the Philippines, to maintain law
attempt to show whether this situation exists. and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any
Petitioners likewise seek a facial review of PP 1017 on the act of insurrection or rebellion
ground of vagueness. This, too, is unwarranted.
Second provision:
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 and to enforce obedience to all the
meaning and differ as to its application.[110] It is subject to laws and to all decrees, orders and regulations
the same principles governing overbreadth doctrine. For one, it promulgated by me personally or upon my
is also an analytical tool for testing on their faces statutes in direction;
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 Third provision:
understand the meaning and application of PP 1017.
First provision:
suspension, convene in accordance with its rules
The first provision pertains to the Presidents calling-out without need of a call.
power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr. The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
Justice Dante O. Tinga, held that Section 18, Article VII of the bases of the proclamation of martial law or the suspension of
Constitution reproduced as follows: the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its
Sec. 18. The President shall be the Commander- filing.
in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call A state of martial law does not suspend the
out such armed forces to prevent or suppress operation of the Constitution, nor supplant the
lawless violence, invasion or rebellion. In case of functioning of the civil courts or legislative
invasion or rebellion, when the public safety requires assemblies, nor authorize the conferment of
it, he may, for a period not exceeding sixty days, jurisdiction on military courts and agencies over
suspend the privilege of the writ of habeas corpus or civilians where civil courts are able to function, nor
place the Philippines or any part thereof under martial automatically suspend the privilege of the writ.
law. Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege of the The suspension of the privilege of the writ
writ of habeas corpus, the President shall submit a shall apply only to persons judicially charged for
report in person or in writing to the Congress. The rebellion or offenses inherent in or directly connected
Congress, voting jointly, by a vote of at least a with invasion.
majority of all its Members in regular or special
session, may revoke such proclamation or suspension, During the suspension of the privilege of the
which revocation shall not be set aside by the writ, any person thus arrested or detained shall be
President. Upon the initiative of the President, the judicially charged within three days, otherwise he
Congress may, in the same manner, extend such shall be released.
proclamation or suspension for a period to be
determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. grants the President, as Commander-in-Chief, a sequence of
graduated powers. From the most to the least benign, these are:
The Congress, if not in session, shall within the calling-out power, the power to suspend the privilege of the
twenty-four hours following such proclamation or 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 SEC. 4. Proclamations. Acts of the
exercise of the calling-out power is that whenever it becomes President fixing a date or declaring a status or
necessary, the President may call the armed forces to condition of public moment or interest, upon
prevent or suppress lawless violence, invasion or the existence of which the operation of a
rebellion. Are these conditions present in the instant specific law or regulation is made to depend,
cases? As stated earlier, considering the circumstances then shall be promulgated in proclamations which
shall have the force of an executive order.
prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Offices vast intelligence network, she is
in the best position to determine the actual condition of the
President Arroyos declaration of a state of rebellion
country.
was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited
Under the calling-out power, the President may summon
above. Such declaration, in the words of Sanlakas, is harmless,
the armed forces to aid him in suppressing lawless violence,
without legal significance, and deemed not written. In these
invasion and rebellion. This involves ordinary police
cases, PP 1017 is more than that. In declaring a state of national
action. But every act that goes beyond the Presidents calling-
emergency, President Arroyo did not only rely on Section 18,
out power is considered illegal or ultra vires. For this reason, a
Article VII of the Constitution, a provision calling on the AFP to
President must be careful in the exercise of his powers. He
prevent or suppress lawless violence, invasion or rebellion. She
cannot invoke a greater power when he wishes to act under a
also relied on Section 17, Article XII, a provision on the States
lesser power. There lies the wisdom of our Constitution, the
extraordinary power to take over privately-owned public utility
greater the power, the greater are the limitations.
and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such
It is pertinent to state, however, that there is a distinction
Proclamation cannot be deemed harmless, without legal
between the Presidents authority to declare a state of
significance, or not written, as in the case of Sanlakas.
rebellion (in Sanlakas) and the authority to proclaim a state of
national emergency. While President Arroyos authority to
Some of the petitioners vehemently maintain that PP 1017
declare a state of rebellion emanates from her powers as
is actually a declaration of Martial Law. It is no so. What
Chief Executive, the statutory authority cited in Sanlakas was
defines the character of PP 1017 are its wordings. It is plain
Section 4, Chapter 2, Book II of the Revised Administrative
therein that what the President invoked was her calling-out
Code of 1987, which provides:
power.
The declaration of Martial Law is a warn[ing] to citizens under a valid declaration of Martial Law can be done. Its use
that the military power has been called upon by the executive to for any other purpose is a perversion of its nature and scope, and
assist in the maintenance of law and order, and that, while the any act done contrary to its command is ultra vires.
emergency lasts, they must, upon pain of arrest and punishment,
not commit any acts which will in any way render more difficult Justice Mendoza further stated that specifically, (a) arrests
the restoration of order and the enforcement of law.[113] and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and press
In his Statement before the Senate Committee on censorship; and (d) issuance of Presidential Decrees, are powers
Justice on March 13, 2006, Mr. Justice Vicente V. which can be exercised by the President as Commander-in-
Mendoza,[114] an authority in constitutional law, said that of the Chief only where there is a valid declaration of Martial Law or
three powers of the President as Commander-in-Chief, the power suspension of the writ of habeas corpus.
to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to Based on the above disquisition, it is clear that PP 1017 is
lightly. It cannot be used to stifle or persecute critics of the not a declaration of Martial Law. It is merely an exercise of
government. It is placed in the keeping of the President for the President Arroyos calling-out power for the armed forces to
purpose of enabling him to secure the people from harm and to assist her in preventing or suppressing lawless violence.
restore order so that they can enjoy their individual freedoms. In
fact, Section 18, Art. VII, provides: Second Provision: Take Care Power
A state of martial law does not suspend the
The second provision pertains to the power of the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative President to ensure that the laws be faithfully executed. This is
assemblies, nor authorize the conferment of based on Section 17, Article VII which reads:
jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor SEC. 17. The President shall have control of all
automatically suspend the privilege of the writ. the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
Let it be emphasized that while the President alone can In G.R. No. 171396, petitioners David and Llamas alleged
declare a state of national emergency, however, without that, on February 24, 2006, they were arrested without warrants
legislation, he has no power to take over privately-owned on their way to EDSA to celebrate the 20thAnniversary of People
public utility or business affected with public interest. The Power I. The arresting officers cited PP 1017 as basis of the
President cannot decide whether exceptional circumstances arrest.
exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he In G.R. No. 171409, petitioners Cacho-Olivares
determine when such exceptional circumstances have and Tribune Publishing Co., Inc. claimed that on February 25,
ceased. Likewise, without legislation, the President has no 2006, the CIDG operatives raided and ransacked without
power to point out the types of businesses affected with public warrant their office. Three policemen were assigned to guard
interest that should be taken over. In short, the President has no their office as a possible source of destabilization. Again, the
absolute authority to exercise all the powers of the State under basis was PP 1017.
Section 17, Article VII in the absence of an emergency powers
act passed by Congress. 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
c. AS APPLIED CHALLENGE Avenue, to celebrate the 20th Anniversary of People Power I.
One of the misfortunes of an emergency, particularly, that A perusal of the direct injuries allegedly suffered by
which pertains to security, is that military necessity and the the said petitioners shows that they resulted from
guaranteed rights of the individual are often not the implementation, pursuant to G.O. No. 5, of PP 1017.
compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right Can this Court adjudge as unconstitutional PP 1017 and
against unreasonable search and seizure; the right against G.O. No 5 on the basis of these illegal acts? In general, does the
warrantless arrest; and the freedom of speech, of expression, illegal implementation of a law render it unconstitutional?
of the press, and of assembly under the Bill of Rights suffered
the greatest blow. 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 President Arroyo issued G.O. No. 5 to carry into effect the
manner of application.[136] The validity of a statute or provisions of PP 1017. General orders are acts and commands
ordinance is to be determined from its general purpose and its of the President in his capacity as Commander-in-Chief of the
efficiency to accomplish the end desired, not from its effects in Armed Forces of the Philippines. They are internal rules issued
a particular case.[137] PP 1017 is merely an invocation of the by the executive officer to his subordinates precisely for
Presidents calling-out power. Its general purpose is to the proper and efficientadministration of law. Such rules and
command the AFP to suppress all forms of lawless violence, regulations create no relation except between the official who
invasion or rebellion. It had accomplished the end desired issues them and the official who receives them.[139] They are
which prompted President Arroyo to issue PP 1021. But there is based on and are the product of, a relationship in which power is
nothing in PP 1017 allowing the police, expressly or impliedly, their source, and obedience, their object.[140] For these reasons,
to conduct illegal arrest, search or violate the citizens one requirement for these rules to be valid is that they must
constitutional rights. be reasonable, not arbitrary or capricious.
P.D. No. 1835 was repealed by E.O. No. 167 (which The Constitution provides that the right of the people to
outlaws the Communist Party of the Philippines) enacted by be secured in their persons, houses, papers and effects against
President Corazon Aquino on May 5, 1985. These two (2) laws, unreasonable search and seizure of whatever nature and for any
however, do not define acts of terrorism. Since there is no purpose shall be inviolable, and no search warrant or warrant of
law defining acts of terrorism, it is President Arroyo alone, arrest shall issue except upon probable cause to be determined
under G.O. No. 5, who has the discretion to determine what acts personally by the judge after examination under oath or
constitute terrorism. Her judgment on this aspect is absolute, affirmation of the complainant and the witnesses he may
without restrictions. Consequently, there can be indiscriminate produce, and particularly describing the place to be searched and
arrest without warrants, breaking into offices and residences, the persons or things to be seized.[142] The plain import of the
taking over the media enterprises, prohibition and dispersal of all language of the Constitution is that searches, seizures and arrests
assemblies and gatherings unfriendly to the administration. All are normally unreasonable unless authorized by a validly issued
these can be effected in the name of G.O. No. 5. These acts go search warrant or warrant of arrest. Thus, the fundamental
far beyond the calling-out power of the President. Certainly, protection given by this provision is that between person and
they violate the due process clause of the Constitution. Thus, police must stand the protective authority of a magistrate clothed
this Court declares that the acts of terrorism portion of G.O. with power to issue or refuse to issue search warrants or warrants
No. 5 is unconstitutional. of arrest.[143]
G.R. No. 171409, (Cacho-Olivares, et al.) presents The search is illegal. Rule 126 of The Revised Rules on
another facet of freedom of speech i.e., the freedom of the Criminal Procedure lays down the steps in the conduct of search
press. Petitioners narration of facts, which the Solicitor and seizure. Section 4 requires that a search warrant be issued
General failed to refute, established the following: first, the Daily upon probable cause in connection with one specific offence to
Tribunes offices were searched without warrant; second, the be determined personally by the judge after examination under
police operatives seized several materials for publication; third, oath or affirmation of the complainant and the witnesses he may
the search was conducted at about 1:00 o clock in the morning produce. Section 8 mandates that the search of a house, room,
or any other premise be made in the presence of the lawful press is essential for the political enlightenment
occupantthereof or any member of his family or in the absence and growth of the citizenry.
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 While admittedly, the Daily Tribune was not padlocked
the daytime, unless the property is on the person or in the place and sealed like the Metropolitan Mail and We Forum
ordered to be searched, in which case a direction may be inserted newspapers in the above case, yet it cannot be denied that the
that it be served at any time of the day or night. All these rules CIDG operatives exceeded their enforcement duties. The search
were violated by the CIDG operatives. 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
Not only that, the search violated petitioners freedom of censorship. It is that officious functionary of the repressive
the press. The best gauge of a free and democratic society rests government who tells the citizen that he may speak only if
in the degree of freedom enjoyed by its media. In the Burgos v. allowed to do so, and no more and no less than what he is
Chief of Staff[152] this Court held that -- permitted to say on pain of punishment should he be so rash as to
disobey.[153] Undoubtedly, the The Daily Tribune was subjected
As heretofore stated, the premises searched to these arbitrary intrusions because of its anti-government
were the business and printing offices of the sentiments. This Court cannot tolerate the blatant disregard of a
"Metropolitan Mail" and the "We Forum constitutional right even if it involves the most defiant of our
newspapers. As a consequence of the search and citizens. Freedom to comment on public affairs is essential to
seizure, these premises were padlocked and sealed, the vitality of a representative democracy. It is the duty of the
with the further result that the printing and courts to be watchful for the constitutional rights of the citizen,
publication of said newspapers were discontinued.
and against any stealthy encroachments thereon. The motto
should always be obsta principiis.[154]
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' Incidentally, during the oral arguments, the Solicitor
freedom to express themselves in print. This state General admitted that the search of the Tribunes offices and the
of being is patently anathematic to a democratic seizure of its materials for publication and other papers are
framework where a free, alert and even militant illegal; and that the same are inadmissible for any purpose,
thus:
suddenly part of the evidence of
JUSTICE CALLEJO: rebellion or inciting to sedition or
what?
You made quite a mouthful of
admission when you said that the SOLGEN BENIPAYO:
policemen, when inspected the
Tribune for the purpose of Well, it was the police that did
gathering evidence and you that, Your Honor. Not upon my
admitted that the policemen were instructions.
able to get the clippings. Is that
not in admission of the SR. ASSO. JUSTICE PUNO:
admissibility of these clippings
that were taken from the Tribune? Are you saying that the act of the
policeman is illegal, it is not
SOLICITOR GENERAL BENIPAYO: based on any law, and it is not
based on Proclamation 1017.
Under the law they would seem
to be, if they were illegally seized, SOLGEN BENIPAYO:
I think and I know, Your Honor,
and these are inadmissible for any It is not based on Proclamation
purpose.[155] 1017, Your Honor, because there
is nothing in 1017 which says that
xxx xxx xxx the police could go and inspect
and gather clippings from Daily
SR. ASSO. JUSTICE PUNO: Tribune or any other newspaper.
No costs.