G.R. No.

82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO

L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice,
LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial
Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL
OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge
of Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R.
Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the
finding of the existence of a prima facie case was still under review by the Secretary of Justice
and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were
violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of
the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive
Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been denied the administrative remedies
available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of submitting
his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his
right to refute the complaint by filing counter-affidavits. Due process of law does not require that
the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. 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 nder 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.

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;
or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report
and require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus,
with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may
subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may
be invoked only by the holder of the office; not by any other person in the President's behalf.
Thus, an accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision that cannot be assumed and imposed by any
other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because
of the privileged character or the publication, the Court reiterates that it is not a trier of facts and
that such a defense is best left to the trial court to appreciate after receiving the evidence of the
parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction

on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos.
82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of
the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is
LIFTED.
EN BANC

G.R. No. 180643             September 4, 2008

ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the benefit of candid, objective and
untrammeled communication and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and arriving at decisions in the exercise of
the functions of the Presidency under the Constitution. The confidentiality of the President’s
conversations and correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens and more,
because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and
arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of
government. In this task, this Court should neither curb the legitimate powers of any of the co-
equal and coordinate branches of government nor allow any of them to overstep the boundaries
set for it by our Constitution. The competing interests in the case at bar are the claim of
executive privilege by the President, on the one hand, and the respondent Senate Committees’
assertion of their power to conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and emotionally charged rhetoric
from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead
to the conclusion that the claim of executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and Investigations,1 Trade
and Commerce,2 and National Defense and Security (collectively the "respondent
Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for
about eleven (11) hours on matters concerning the National Broadband Project (the "NBN
Project"), a project awarded by the Department of Transportation and Communications
("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in
exchange for his approval of the NBN Project. He further narrated that he informed President
Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him
not to accept the bribe. However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on: (a) whether or not
President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize
it,5 and (c) whether or not she directed him to approve it.6

Respondent Committees persisted in knowing petitioner’s answers to these three questions by

requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioner’s testimony on the ground of executive privilege.7 The letter of
Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations
and correspondence between the President and public officials which are considered
executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA,
G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and policy decision making
process. The expectation of a President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the privacy of all
citizens, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the President, and will
hamper her in the effective discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought
to be disclosed might impair our diplomatic as well as economic relations with the
People’s Republic of China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is designed to
protect.

In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary
Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to
him except the foregoing questions involving executive privilege, we therefore request
that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of
the President invoking executive privilege. On November 22, 2007, the respondent Committees
issued the show-cause letter requiring him to explain why he should not be cited in contempt.
On November 29, 2007, in petitioner’s reply to respondent Committees, he manifested that it
was not his intention to ignore the Senate hearing and that he thought the only remaining
questions were those he claimed to be covered by executive privilege. He also manifested his
willingness to appear and testify should there be new matters to be taken up. He just requested
that he be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to
his request for advance notice of the matters that he should still clarify, they issued the Order
dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of
Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate
Sergeant-at-Arms until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that
he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized
his willingness to testify on new matters, but respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this should restrain
respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated February 4,
2008, the parties were required to observe the status quo prevailing prior to the Order dated
January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the
contempt order. Anent the first ground, we considered the subject communications as falling
under the presidential communications privilege because (a) they related to a quintessential
and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that
would justify the limitation of the privilege and the unavailability of the information elsewhere by
an appropriate investigating authority. As to the second ground, we found that respondent
Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the
questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the
proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article
VI of the Constitution because their inquiry was not in accordance with the "duly published rules
of procedure," and (e) they issued the contempt order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored
on the following grounds:

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT

THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES
PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
MERELY THEIR OVERSIGHT FUNCTIONS.

II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL

OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE
SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE

PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE

DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING

NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE

WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION,

AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT

COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT
ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT

CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID

DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE

WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI,

SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF
PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN
THE COURT CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE WITHOUT
GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
 E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY
OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional questions. According to petitioner,
the Court merely applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse the presumption
against executive secrecy laid down in Senate v. Ermita; second, respondent Committees
failed to overcome the presumption of executive privilege because it appears that they could
legislate even without the communications elicited by the three (3) questions, and they admitted
that they could dispense with petitioner’s testimony if certain NEDA documents would be given
to them; third, the requirement of specificity applies only to the privilege for State, military and
diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the President’s thought processes
or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the
Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a
continuing body, thus the failure of the present Senate to publish its Rules of Procedure
Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of questions comports with due process
and the constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by
the three (3) questions are covered by executive privilege, because all the elements of the
presidential communications privilege are present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under existing law and jurisprudence;
(5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008
(granting the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit
Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by
its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing parties are
as follows:

(1) whether or not there is a recognized presumptive presidential communications

privilege in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited
by the three (3) questions are covered by executive privilege;
 (3) whether or not respondent Committees have shown that the communications elicited
by the three (3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in

issuing the contempt order.

We shall discuss these issues seriatim.

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees ardently argue that the Court’s declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent
Committees then claim that the Court erred in relying on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system.
That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v.
Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public,16" that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the right to information does not
extend to matters recognized as ‘privileged information’ under the separation of powers,
by which the Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings."18

Respondent Committees’ observation that this Court’s Decision reversed the "presumption that
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the
true intent and meaning of a decision, no specific portion thereof should be isolated and
resorted to, but the decision must be considered in its entirety.19

Note that the aforesaid presumption is made in the context of the circumstances obtaining
in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464,
Series of 2005. The pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably absent is any
 recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive
secrecy and in favor of disclosure. (Emphasis and underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be
exempt from disclosure, there can be no presumption of authorization to invoke executive
privilege given by the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the President’s authority and has the effect of prohibiting the official from appearing
before Congress, subject only to the express pronouncement of the President that it is
allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the

privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique role
and responsibilities of the executive branch, or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive responsibilities.
The doctrine of executive privilege is thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit
to the President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the President", which means that
he personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on
this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in
this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to petitioner
Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely
to the ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. Being of American origin, it is
best understood in light of how it has been defined and used in the legal literature of the
United States.

Schwart defines executive privilege as "the power of the Government to withhold

information from the public, the courts, and the Congress. Similarly, Rozell defines
it as "the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public." x x x In this jurisdiction,
the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.
Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public interest
in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way many would be unwilling
to express except privately. These are the considerations justifying a presumptive
privilege for Presidential communications. The privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers
under the Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential

communication," which was recognized early on in Almonte v. Vasquez. To construe the
passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent
Committees, referring to the non-existence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the

Executive Department and the Legislative Department to explain why there should be no
implied authorization or presumptive authorization to invoke executive privilege by the
President’s subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department heads
to exempt themselves therefrom is by a valid claim of privilege. They are not
exempt by the mere fact that they are department heads. Only one
 executive official may be exempted from this power - the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of
impeachment. It is based on he being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of governments which is sanctioned by a
long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when

invoked by the President on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption
accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v.
Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for
Presidential communications."23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are
not covered by executive privilege because the elements of the presidential communications
privilege are not present.

A. The power to enter into an executive agreement is a "quintessential and non-

delegable presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to
a "quintessential and non-delegable presidential power," because the Constitution does not vest
it in the President alone, but also in the Monetary Board which is required to give its prior
concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power
less executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power
or duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine jurisprudence.26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board, which shall submit to
Congress a complete report of its decision before contracting or guaranteeing foreign loans,
does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by the sovereign people. There is
the corollary doctrine of checks and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three branches. Thus, by analogy, the
fact that certain legislative acts require action from the President for their validity does not
render such acts less legislative in nature. A good example is the power to pass a law. Article
VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the same. The fact that
the approval or vetoing of the bill is lodged with the President does not render the power to pass
law executive in nature. This is because the power to pass law is generally a quintessential and
non-delegable power of the Legislature. In the same vein, the executive power to enter or not to
enter into a contract to secure foreign loans does not become less executive in nature because
of conditions laid down in the Constitution. The final decision in the exercise of the said
executive power is still lodged in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of
the presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications between those who are ‘operationally
proximate’ to the President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court
was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully
cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies,
and then only to White House staff that has "operational proximity" to direct presidential
decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the
purposes of the privilege, could pose a significant risk of expanding to a large swath of
the executive branch a privilege that is bottomed on a recognition of the unique role of
the President. In order to limit this risk, the presidential communications privilege should
be construed as narrowly as is consistent with ensuring that the confidentiality of the
President’s decision-making process is adequately protected. Not every person who
plays a role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in executive branch
agencies. Instead, the privilege should apply only to communications authored or
solicited and received by those members of an immediate White House advisor’s staff
who have broad and significant responsibility for investigation and formulating the advice
to be given the President on the particular matter to which the communications
relate. Only communications at that level are close enough to the President to be
revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President
that matters in determining whether "[t]he President’s confidentiality interests" is
implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive
branch" (a fear apparently entertained by respondents) is absent because the official involved
here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in
fact, her alter ego and a member of her official family. Nevertheless, in circumstances in which
the official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes
to show that the operational proximity test used in the Decision is not considered conclusive in
every case. In determining which test to use, the main consideration is to limit the availability of
executive privilege only to officials who stand proximate to the President, not only by reason of
their function, but also by reason of their positions in the Executive’s organizational structure.
Thus, respondent Committees’ fear that the scope of the privilege would be unnecessarily
expanded with the use of the operational proximity test is unfounded.

C. The President’s claim of executive privilege is not merely based on a generalized

interest; and in balancing respondent Committees’ and the President’s clashing
interests, the Court did not disregard the 1987 Constitutional provisions on government
transparency, accountability and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the President’s
invocation, through the Executive Secretary, of executive privilege because (a) between
respondent Committees’ specific and demonstrated need and the President’s generalized
interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in
the balancing of interest, the Court disregarded the provisions of the 1987 Philippine
Constitution on government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article
XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37

It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive
Secretary Ermita specified presidential communications privilege in relation to diplomatic
and economic relations with another sovereign nation as the bases for the claim. Thus, the
Letter stated:

The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations
with the People’s Republic of China. Given the confidential nature in which this
information were conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal
department.

It is easy to discern the danger that goes with the disclosure of the President’s communication
with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of the Philippines and China.
Whatever the President says about the agreement - particularly while official negotiations are
ongoing - are matters which China will surely view with particular interest. There is danger in
such kind of exposure. It could adversely affect our diplomatic as well as economic relations
with the People’s Republic of China. We reiterate the importance of secrecy in matters involving
foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
 The nature of foreign negotiations requires caution, and their success must often depend
on secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated
would be extremely impolitic, for this might have a pernicious influence on future
negotiations or produce immediate inconveniences, perhaps danger and mischief, in
relation to other powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President, with the advice and
consent of the Senate, the principle on which the body was formed confining it to a small
number of members. To admit, then, a right in the House of Representatives to demand
and to have as a matter of course all the papers respecting a negotiation with a foreign
power would be to establish a dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of
diplomatic negotiations. In Akbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this

jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez
v. PCGG held that "information on inter-government exchanges prior to the conclusion of
treaties and executive agreements may be subject to reasonable safeguards for the
sake of national interest." Even earlier, the same privilege was upheld in People’s
Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the
reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement. The Court denied the petition, stressing that "secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information." The
Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition

of decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has
been said about "open" and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through without

many, many private talks and discussion, man to man; many
tentative suggestions and proposals. Delegates from other countries
come and tell you in confidence of their troubles at home and of
their differences with other countries and with other delegates; they
tell you of what they would do under certain circumstances and
would not do under other circumstances… If these reports… should
become public… who would ever trust American Delegations in
 another conference? (United States Department of State, Press
Releases, June 7, 1930, pp. 282-284)

xxxx

There is frequent criticism of the secrecy in which negotiation with foreign

powers on nearly all subjects is concerned. This, it is claimed, is
incompatible with the substance of democracy. As expressed by one writer,
"It can be said that there is no more rigid system of silence anywhere in the
world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938)
President Wilson in starting his efforts for the conclusion of the World War
declared that we must have "open covenants, openly arrived at." He quickly
abandoned his thought.

No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups
attempt to "muscle in." An ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides
would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is
approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp. that the President is the sole organ of the nation in its negotiations with
foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of
the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in
his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its
sole representative with foreign nations." Annals, 6th Cong., col. 613…
(Emphasis supplied; underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition
involves the President’s dealings with a foreign nation, with more reason, this Court is wary of
approving the view that Congress may peremptorily inquire into not only official, documented
acts of the President but even her confidential and informal discussions with her close advisors
on the pretext that said questions serve some vague legislative need. Regardless of who is in
office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to
unrestricted congressional inquiries done with increased frequency and great publicity. No
Executive can effectively discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the President’s decision-making process, which inevitably
would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the
right of the people to information and public accountability and transparency, the Court finds
nothing in these arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information
and the constitutional policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic government. The citizenry can
become prey to the whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability and democratic
government would certainly be mere empty words if access to such information of public
concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public’s right to information or diminish the importance of
public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner
Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents’ investigation the three (3) questions that elicit
answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these
answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it
simply, the right to information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an

absolute right to information. By their wording, the intention of the Framers to subject such right
to the regulation of the law is unmistakable. The highlighted portions of the following provisions
show the obvious limitations on the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers pertaining
to official records, and to documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions involving
public interest. (Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to
such rights, among them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well as information
on inter-government exchanges prior to the conclusion of treaties and executive agreements. It
was further held that even where there is no need to protect such state secrets, they
must be "examined in strict confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the people’s right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As
laid down in Senate v. Ermita, "the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena
duces tecum issued by Congress" and "neither does the right to information grant a citizen the
power to exact testimony from government officials." As pointed out, these rights belong to
Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here
are respondent Committees and petitioner Neri and that there was no prior request for
information on the part of any individual citizen. This Court will not be swayed by attempts to
blur the distinctions between the Legislature's right to information in a legitimate legislative
inquiry and the public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to
respect matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy

discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight
inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees’ power to investigate the NBN Project in aid of legislation. However, this Court
cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of
respondent Committees’ questions can be sufficiently supported by the expedient of mentioning
statutes and/or pending bills to which their inquiry as a whole may have relevance. The
jurisprudential test laid down by this Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling need for
disclosure of the information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority." In the Motion for Reconsideration, respondent
Committees argue that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three (3) pending
Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against
other interests and it is necessary to resolve the competing interests in a manner that would
preserve the essential functions of each branch. There, the Court weighed between presidential
privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the
Court ruled that the President's generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice
Puno's dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This is nowhere more profoundly manifest than in our view that 'the
twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger
v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an
adversary system of criminal justice in which the parties contest all issues before a court
of law. The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of the
facts. The very integrity of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts
that compulsory process be available for the production of evidence needed either by
the prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal
trial the right 'to be confronted with the witness against him' and 'to have
compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without due
process of law. It is the manifest duty of the courts to vindicate those guarantees,
and to accomplish that it is essential that all relevant and admissible evidence be
produced.

In this case we must weigh the importance of the general privilege of

confidentiality of Presidential communications in performance of the President's
responsibilities against the inroads of such a privilege on the fair administration
of criminal justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a

criminal trial would cut deeply into the guarantee of due process of law and
gravely impair the basic function of the courts. A President's acknowledged need
for confidentiality in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
 case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on the pending
criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of
law in the fair administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability
in a criminal case but rather with the Senate’s need for information in relation to its legislative
functions. This leads us to consider once again just how critical is the subject information in the
discharge of respondent Committees’ functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of the President in order
to gather information which, according to said respondents, would "aid" them in crafting
legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the

nature of a legislative inquiry in aid of legislation in this wise:

The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between Congress' legislative tasks and
the responsibility of a grand jury, or any institution engaged in like functions. While fact-
finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction
of past events; Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on
its ability to determine whether there is probable cause to believe that certain named
individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica,
one of those crimes is perjury concerning the content of certain conversations, the grand
jury's need for the most precise evidence, the exact text of oral statements recorded in
their original form, is undeniable. We see no comparable need in the legislative
process, at least not in the circumstances of this case. Indeed, whatever force there
might once have been in the Committee's argument that the subpoenaed materials are
necessary to its legislative judgments has been substantially undermined by subsequent
events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the Dissenting Opinion of the
Honorable Chief Justice Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the
previous discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign Activities, et
al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential communications.
The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of
confidentiality of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to
enable them to craft legislation. Here, there is simply a generalized assertion that the
information is pertinent to the exercise of the power to legislate and a broad and non-specific
reference to pending Senate bills. It is not clear what matters relating to these bills could not be
determined without the said information sought by the three (3) questions. As correctly pointed
out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:

…If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from proceeding with
such legislation. They could easily presume the worst of the president in enacting
such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent
Committees impliedly admitted that the Senate could still come up with legislations even without
petitioner answering the three (3) questions. In other words, the information being elicited is not
so critical after all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking
function of the Senate. For instance, question Number 1 whether the President
followed up the NBN project. According to the other counsel this question has
already been asked, is that correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

 Yes. But my question is how critical is this to the lawmaking function of the
Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she
would like to indorse a Bill to include Executive Agreements had been used as a
device to the circumventing the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look at this
problem in its factual setting as counsel for petitioner has observed, there are
intimations of a bribery scandal involving high government officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE, is that
critical to the lawmaking function of the Senate? Will it result to the failure of the
Senate to cobble a Bill without this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that
he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is
possible that other government officials who had something to do with the
approval of the contract would be offered the same amount of bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.
 CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and
approve the project after being told about the alleged bribe. How critical is that to
the lawmaking function of the Senate? And the question is may they craft a Bill a
remedial law without forcing petitioner Neri to answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact.42

The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to
the failure of the respondent Committees to successfully discharge this burden, the presumption
in favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure
will significantly impair the President’s performance of her function. Needless to state this is
assumed, by virtue of the presumption.

Anent respondent Committees’ bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held
that while fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of past events. It added
that, normally, Congress legislates on the basis of conflicting information provided in its
hearings. We cannot subscribe to the respondent Committees’ self-defeating proposition that
without the answers to the three (3) questions objected to as privileged, the distinguished
members of the respondent Committees cannot intelligently craft legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’
need for information in the exercise of this function is not as compelling as in instances when
the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is
merely an oversight function of Congress.44 And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their
claim that their purpose is legislative in nature and not oversight. In any event, whether or not
investigating graft and corruption is a legislative or oversight function of Congress, respondent
Committees’ investigation cannot transgress bounds set by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must

perform under the Constitution. Moreover, as held in a recent case, "the political
question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this Court.
It cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in appropriate
cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee
is not really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction
of Congress, since the aim of the investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-
Graft and Corrupt Practices Act, a matter that appears more within the province of the
courts rather than of the Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the
Office of the President.48 While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to
make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can
the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a
"search for truth," which in respondent Committees’ view appears to be equated with the search
for persons responsible for "anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the
power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable
for a crime or illegal activity, the investigation of the role played by each official, the
determination of who should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the determination of criminal
guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency.
Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely
to gather incriminatory evidence and "punish" those investigated are indefensible. There is no
Congressional power to expose for the sake of exposure.49 In this regard, the pronouncement
in Barenblatt v. United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may
only investigate into the areas in which it may potentially legislate or appropriate, it
cannot inquire into matters which are within the exclusive province of one of the other
branches of the government. Lacking the judicial power given to the Judiciary, it cannot
inquire into matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate
any act or omission of any public official, employee, office or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient."51 The Office of the
Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily
determine whether or not the allegations of anomaly are true and who are liable therefor. The
same holds true for our courts upon which the Constitution reposes the duty to determine
criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and
the courts are well-defined and ensure that the constitutionally guaranteed rights of all
persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of
their investigation, they have the constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislature’s need for information in an investigation of graft
and corruption cannot be deemed compelling enough to pierce the confidentiality of information
validly covered by executive privilege. As discussed above, the Legislature can still legislate on
graft and corruption even without the information covered by the three (3) questions subject of
the petition.

Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive

privilege on the ground that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial determination
to that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct
that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought,
and the degree to which the material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign

Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The Court is not persuaded. While it is
true that no impeachment proceeding has been initiated, however, complaints relating to the
NBN Project have already been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the Constitution and our laws to
determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who
should be prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
evidence essential to arrive at accurate factual findings to which to apply the law. Hence,
Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides
that "technical rules of evidence applicable to judicial proceedings which do not affect
substantive rights need not be observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few,
do not apply to a legislative inquiry. Every person, from the highest public official to the most
ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings
by a competent court or body.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not
violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in
accordance with their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of
the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.

Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible needed statute which prompted the
need for the inquiry" along with the "usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof" is not provided for by the Constitution and is merely an
obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its

own abuses. Consequently, claims that the investigative power of Congress has been abused
(or has the potential for abuse) have been raised many times.53 Constant exposure to
congressional subpoena takes its toll on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit
Congress’ power. The legislative inquiry must be confined to permissible areas and thus,
prevent the "roving commissions" referred to in the U.S. case, Kilbourn v.
Thompson.54 Likewise, witnesses have their constitutional right to due process. They should be
adequately informed what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these requirements concede too
little political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of
its power of inquiry. The logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees
to continually investigate the Executive without constraint. One process solution
addressing this concern is to require each investigation be tied to a clearly stated
purpose. At present, the charters of some congressional committees are so broad that
virtually any matter involving the Executive can be construed to fall within their province.
Accordingly, investigations can proceed without articulation of specific need or purpose.
A requirement for a more precise charge in order to begin an inquiry should immediately
work to limit the initial scope of the investigation and should also serve to contain the
investigation once it is instituted. Additionally, to the extent clear statements of rules
cause legislatures to pause and seriously consider the constitutional implications
of proposed courses of action in other areas, they would serve that goal in the
context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee
to simply articulate its reasons to investigate pro forma does no more than
imposes minimal drafting burdens. Rather, the system must be designed in a
manner that imposes actual burdens on the committee to articulate its need for
investigation and allows for meaningful debate about the merits of proceeding
with the investigation. (Emphasis supplied)

Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable

demand that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be
asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to
the subject matter under inquiry."

Anent the third argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While
it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-
equal branch of government, however, when a constitutional requirement exists, the Court has
the duty to look into Congress’ compliance therewith. We cannot turn a blind eye to possible
violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo
v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution
empowers each House to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should be
a reasonable relation between the mode or method of proceeding established by
the rule and the result which is sought to be attained."

In the present case, the Court’s exercise of its power of judicial review is warranted because
there appears to be a clear abuse of the power of contempt on the part of respondent
Committees. Section 18 of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobey any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any of its
members." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
order because during the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a membership of nine (9) Senators,
only three (3) members were present.57 These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt
order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator
Francis Pangilinan stated that any defect in the committee voting had been cured because two-
thirds of the Senators effectively signed for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and thereafter presented to the other
members for signing. As a result, the contempt order which was issued on January 30, 2008
was not a faithful representation of the proceedings that took place on said date. Records
clearly show that not all of those who signed the contempt order were present during the
January 30, 2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)

All the limitations embodied in the foregoing provision form part of the witness’ settled
expectation. If the limitations are not observed, the witness’ settled expectation is shattered.
Here, how could there be a majority vote when the members in attendance are not enough to
arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has been fully deliberated upon.
There is a greater measure of protection for the witness when the concerns and objections of
the members are fully articulated in such proceeding. We do not believe that respondent
Committees have the discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that the Rules are not
promulgated for their benefit. More than anybody else, it is the witness who has the highest
stake in the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is a
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The Rules of the Senate
itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one
(1) Congress, but may be taken by the succeeding Congress as if present for the first
time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is readily
apparent considering that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound by the acts and
deliberations of the Senate of which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending matters will not be deemed terminated
with the expiration of one Congress but will, as a matter of course, continue into the next
Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main
rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in
force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the
start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation."59 The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The
Senate of the next Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted
in accordance with the duly published rules of procedure is categorical. It is incumbent upon
the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make
the published rules clearly state that the same shall be effective in subsequent Congresses or
until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the
rationale for the publication is to protect the rights of witnesses as expressed in Section 21,
Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid
and effective.

Respondent Committees’ last argument is that their issuance of the contempt order is not
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their
argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion
of respondent Committees, petitioner did not assume that they no longer had any other
questions for him. He repeatedly manifested his willingness to attend subsequent hearings and
respond to new matters. His only request was that he be furnished a copy of the new questions
in advance to enable him to adequately prepare as a resource person. He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita requested respondent
Committees to dispense with his testimony on the ground of executive privilege. Note that
petitioner is an executive official under the direct control and supervision of the Chief
Executive. Why punish petitioner for contempt when he was merely directed by his superior?
Besides, save for the three (3) questions, he was very cooperative during the September 26,
2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead
of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their
ruling and given him time to decide whether to accede or file a motion for reconsideration. After
all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and impatience marked the
issuance of the contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioner’s motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature
are political branches of government. In a free and democratic society, the interests of these
branches inevitably clash, but each must treat the other with official courtesy and respect. This
Court wholeheartedly concurs with the proposition that it is imperative for the continued health
of our democratic institutions that we preserve the constitutionally mandated checks and
balances among the different branches of government.

In the present case, it is respondent Committees’ contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their
assertion that their internal procedures and deliberations cannot be inquired into by this Court
supposedly in accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It
moves this Court to wonder: In respondent Committees’ paradigm of checks and balances, what
are the checks to the Legislature’s all-encompassing, awesome power of investigation? It is a
power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a "search for truth" by the general
public, the religious community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the best venue for this
noble undertaking is not in the political branches of government. The customary partisanship
and the absence of generally accepted rules on evidence are too great an obstacle in arriving at
the truth or achieving justice that meets the test of the constitutional guarantee of due process
of law. We believe the people deserve a more exacting "search for truth" than the process here
in question, if that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.
G.R. No. 171396             May 3, 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.

x-------------------------------------x

G.R. No. 171409             May 3, 2006

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

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

x-------------------------------------x

G.R. No. 171485             May 3, 2006

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.

x-------------------------------------x

G.R. No. 171483             May 3, 2006

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.

x-------------------------------------x

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

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.

x-------------------------------------x

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-
IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF
OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, 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 the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists – the historical enemies of the democratic
Philippine State – who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;

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

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

segments of the national media;

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

WHEREAS, these actions are adversely affecting the economy;

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

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

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

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

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State –
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

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

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

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

WHEREAS, these actions are adversely affecting the economy;

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

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

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

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

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

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

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief
of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

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

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

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

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People’s Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear and present
danger.

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

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

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.6 Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael

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

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

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

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

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,

Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency"
that warrants the issuance of PP 1017.

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

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

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections
1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 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,petitionerLoren 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) Whetherthe Supreme Court can review the factual bases of PP 1017.

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

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary
simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review.22

But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.24

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

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

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26 so that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on ground of
mootness.29

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

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

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

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

II- Legal Standing

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

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

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

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan41 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 Works47 and Anti-Chinese League of the Philippines v. Felix.48

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

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of

the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the

transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress’ taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that

the tax measure is unconstitutional;

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

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
 (5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.

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

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

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

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong

Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

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

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

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

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

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.

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

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

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net

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 people68 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. Baker70 and Montenegro v. Castaneda71 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. Zamora80 -- a recent case most pertinent to these cases
at bar -- echoed a principle similar to Lansang. While the Court considered the President’s
"calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this
does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition
of judicial power, the courts are authorized not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82

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

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

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

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

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

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

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

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis,
the ruin of the State…

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

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

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people’s first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87

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

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:

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

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90

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

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

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

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the
"constitutional dictatorship," thus:

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

initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of

the man or men who will constitute the dictator…

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

provisions for its termination…

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

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

altered any more than is absolutely necessary for the conquest of the particular crisis . . .

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

never be permanent in character or effect…

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

citizenry interested in the defense of the existing constitutional order. . .

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

constitutional dictatorship. . .

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

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

11) …the termination of the crisis must be followed by a complete return as possible to

the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring the
existence or termination of an emergency, and he places great faith in the effectiveness of
congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:

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

emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government responsible. He refused to
equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of government but,
but rather in the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –-
from Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and,
eventually, to McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.

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

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

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

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

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

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on
its face and when ‘such summary action’ is inappropriate. But the plain import of our cases
is, at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure
speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.

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

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

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is
the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law’s "very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even attempt to show whether this
situation exists.

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

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

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

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

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

Second provision:

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

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:

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

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

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

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

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the

most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she
is in the best position to determine the actual condition of the country.

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

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:

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

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

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

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,114 an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the keeping of the President
for the purpose of enabling him to secure the people from harm and to restore order so that they
can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

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

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

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

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

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President
is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees
to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of
the Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,117 including the Philippine National Police118 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 lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

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

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial
law and, in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

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

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

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

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

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

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or
special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.121

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

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

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

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or business affected with public
interest.

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

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

This is an area that needs delineation.

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

Section 23, Article VI of the Constitution reads:

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

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the absence of a Congressional
enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution which
relate to the same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.

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

(1) There must be a war or other emergency.

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

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

prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared

by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate
it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube
Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President’s power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited
view of "emergency."

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

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

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.131 This is evident in the Records of the Constitutional
Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears
in Section 13, page 5? It reads:

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

MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.

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

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

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

xxxxxx

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

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

MR. TINGSON. Thank you very much.133

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

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which

extraordinary measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another department –
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances ‘the
various branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to
perform the duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

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

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."

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

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

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

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

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

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens’ constitutional rights.

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

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

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

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

confronts not only our country, but the international community as well. The following
observations are quite apropos:

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

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

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

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

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

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

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

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

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

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

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the
part of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.

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

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

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

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

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

In the Brief Account144 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. 880145 and Inciting to Sedition; sixth, he was
detained for seven (7) hours; and seventh,he was eventually released for insufficiency of
evidence.

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

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

(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release
on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally.147

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

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the assembly itself, may be validly
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly
cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the auspices under which
the meeting was held but as to its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution protects.
If the persons assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has
a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the citizens’ right
to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected assemblies was eliminated.

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

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

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

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion
residing in the same locality. And Section 9 states that the warrant must direct that it be served
in the daytime, unless the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or night. All these
rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief
of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy.
It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta principiis.154

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

JUSTICE CALLEJO:

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

SOLICITOR GENERAL BENIPAYO:

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

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

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

SOLGEN BENIPAYO:

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

SR. ASSO. JUSTICE PUNO:

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

SOLGEN BENIPAYO:

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

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

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

SR. ASSO. JUSTICE PUNO:

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

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say
this, we do not condone this. If the people who have been injured by this would want to
sue them, they can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

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

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President
for, as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their letter."

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

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

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained
by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017’s extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.

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

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

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

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

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

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

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

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

No costs.

SO ORDERED.
 EN BANC

July 4, 2017

G.R. No. 231658

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO,

EMMANUEL A. BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N.
LORENZANA, SECRETARY OF THE DEPARTMENT OF NATIONAL DEF'ENSE AND
MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO ANO, CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, Respondents

x-----------------------x

G.R. No. 231771

EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A.

COBRADO, CARL ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR.,
CRISTIN A E. PALABAY, AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE
ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY REPRESENTATIVE
i\RLENED.BROSAS,KABATAAN PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO,
MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK VINCENT D.
LIM, VENCER MARI CRISOSTOMO, JOVITA MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF LT. GENERAL EDUARDO ANO, PHILIPPINE NATIONAL POLICE
DIRECTOR-GENERAL RONALD DELA ROSA, Respondents

x-----------------------x

G.R. No. 231774

NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI,

ZAHRIA P. MUTI-MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL
DEFENSE (DND) SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT (DILG) SECRETARY (OFFICER-INCHARGE) CATALINO S.
CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHEF OF STAFF GEN. EDUARDO M.
AÑO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M.
DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON,
JR., Respondents.

DECISION

DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte
issued Proclamation No. 216 declaring a state of martial law and suspending the privilege of the
writ of habeas corpus in the whole of Mindanao.

The full text of Proclamation No. 216 reads as follows:

WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring
a state of national emergency on account of lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or
rebellion, when the public safety requires it, he (the President) 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 x x x';

WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides
that 'the crime of rebellion or insurrection is committed by rising and taking arms against the
Government for the purpose of removing from the allegiance to said Government or its laws, the
territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other
armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of
their powers or prerogatives';

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of
violent acts committed by the Maute terrorist group such as the attack on the military outpost in
Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass
jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in
Marawi City, Lanao del Sur, established several checkpoints within the City, burned down
certain government and private facilities and inflicted casualties on the part of Government
forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas,
thereby openly attempting to remove from the allegiance to the Philippine Government this part
of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws
of the land and to maintain public order and safety in Mindanao, constituting the crime of
rebellion; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to
sow terror, and cause death and damage to property not only in Lanao del Sur but also in other
parts of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the

Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby
proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for
a period not exceeding sixty days, effective as of the date hereof.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the
aforesaid area for the duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand
and Seventeen.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to
Congress on May 25, 2017, a written Report on the factual basis of Proclamation No. 216.

The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless
violence which only escalated and worsened with the passing of time.

Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In
more recent years, we have witnessed the perpetration of numerous acts of violence
challenging the authority of the duly constituted authorities, i.e., the Zamboanga siege, the
Davao bombing, the Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat,
Sulu, and Basilan, among others. Two armed groups have figured prominently in all these,
namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1

The President went on to explain that on May 23, 2017, a government operation to capture the
high-ranking officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted.
These groups, which have been unleashing havoc in Mindanao, however, confronted the
government operation by intensifying their efforts at sowing violence aimed not only against the
government authorities and its facilities but likewise against civilians and their properties. As
narrated in the President's Report:

On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the
ASG, and Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted
with armed resistance which escalated into open hostility against the government. Through
these groups' armed siege and acts of violence directed towards civilians and government
authorities, institutions and establishments, they were able to take control of major social,
economic, and political foundations of Marawi City which led to its paralysis. This sudden taking
of control was intended to lay the groundwork for the eventual establishment of a
DAESH wilayat or province in Mindanao.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of
around two hundred sixty-three (263) members, fully armed and prepared to wage combat in
furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has
extensive networks and linkages with foreign and local armed groups such as the Jemaah
Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by
the DAESH, as evidenced by, among others, its publication of a video footage declaring its
allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic
State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and
logistical support to the Maute Group.

The events commencing on 23 May 2017 put on public display the groups' clear intention to
establish an Islamic State and their capability to deprive the duly constituted authorities - the
President, foremost - of their powers and prerogatives.2

In particular, the President chronicled in his Report the events which took place on May 23,
2017 in Marawi City which impelled him to declare a state of martial law and suspend the
privilege of writ of habeas corpus, to wit:
• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced
their attack on various facilities - government and privately owned - in the City of Marawi.

• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the
Bureau of Jail Management and Penology (BJMP).

• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-
duty personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells.

• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans
and private vehicles).

• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights
were heard and felt everywhere. By evening, the power outage had spread citywide. (As of 24
May 2017, Marawi City's electric supply was still cut off, plunging the city into total black-out.)

• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the
Marawi Police Station. A patrol car of the Police Station was also taken.

• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the
Marawi City Jail. The Maute Group facilitated the escape of at least sixty-eight (68) inmates of
the City Jail.

• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.

• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod,
Bangulo, and Sauiaran, fell under the control of these groups. They threatened to bomb the
bridges to pre-empt military reinforcement.

• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi
City, including Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the
following barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong,
Marantao, Caloocan, Banggolo, Barionaga, and Abubakar.

• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan
City-Marawi City junction.

• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of
Maria Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncado Colony.
Hostages were taken from the church.

• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by
the lawless groups.

• Other educational institutions were also burned, namely, Senator Ninoy Aquino College
Foundation and the Marawi Central Elementary Pilot School.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there,
among other several locations. As of 0600H of 24May 2017, members of the Maute Group were
seen guarding the entry gates of Amai Pakpak Hospital. They held hostage the employees of
the Hospital and took over the PhilHealth office located thereat.

• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which
they later set ablaze.

• Lawless armed groups likewise ransacked the Landbank of the Philippines and
commandeered one of its armored vehicles.

• Latest information indicates that about seventy-five percent (75%) of Marawi City has been
infiltrated by lawless armed groups composed of members of the Maute Group and the ASG. As
of the time of this Report, eleven (11) members of the Armed Forces and the Philippine National
Police have been killed in action, while thirty-five (35) others have been seriously wounded.

• There are reports that these lawless armed groups are searching for Christian communities in
Marawi City to execute Christians. They are also preventing Maranaos from leaving their homes
and forcing young male Muslims to join their groups.

• Based on various verified intelligence reports from the AFP and the PNP, there exists a
strategic mass action of lawless armed groups in Marawi City, seizing public and private
facilities, perpetrating killings of government personnel, and committing armed uprising against
and open defiance of the government.3

The unfolding of these events, as well as the classified reports he received, led the President to
conclude that -

These activities constitute not simply a display of force, but a clear attempt to establish the
groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or
province covering the entire Mindanao.

The cutting of vital lines for transportation and power; the recruitment of young Muslims to
further expand their ranks and strengthen their force; the armed consolidation of their members
throughout Marawi City; the decimation of a segment of the city population who resist; and the
brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to
remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government.

There exists no doubt that lawless armed groups are attempting to deprive the President of his
power, authority, and prerogatives within Marawi City as a precedent to spreading their control
over the entire Mindanao, in an attempt to undermine his control over executive departments,
bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully
executed; and remove his supervisory powers over local govemments.4

According to the Report, the lawless activities of the ASG, Maute Group, and other criminals,
brought about undue constraints and difficulties to the military and government personnel,
particularly in the performance of their duties and functions, and untold hardships to the
civilians, viz.:

Law enforcement and other government agencies now face pronounced difficulty sending their
reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP
have been prevented from performing their functions. Through the attack and occupation of
several hospitals, medical services in Marawi City have been adversely affected. The bridge
and road blockades set up by the groups effectively deprive the government of its ability to
deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the
government from restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered.

The taking up of arms by lawless armed groups in the area, with support being provided by
foreign-based terrorists and illegal drug money, and their blatant acts of defiance which
embolden other armed groups in Mindanao, have resulted in the deterioration of public order
and safety in Marawi City; they have likewise compromised the security of the entire Island of
Mindanao.5

The Report highlighted the strategic location of Marawi City and the crucial and significant role it
plays in Mindanao, and the Philippines as a whole. In addition, the Report pointed out the
possible tragic repercussions once Marawi City falls under the control of the lawless groups.

The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the
easy access it provides to other parts of Mindanao. Lawless armed groups have historically
used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages.

Considering the network and alliance-building activities among terrorist groups, local criminals,
and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing
goal: absolute control over the entirety of Mindanao. These circumstances demand swift and
decisive action to ensure the safety and security of the Filipino people and preserve our national
integrity.6

The President ended his Report in this wise:

While the government is presently conducting legitimate operations to address the on-going
rebellion, if not the seeds of invasion, public safety necessitates the continued implementation
of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of
Mindanao until such time that the rebellion is completely quelled.7

In addition to the Report, representatives from the Executive Department, the military and police
authorities conducted briefings with the Senate and the House of Representatives relative to the
declaration of martial law.

After the submission of the Report and the briefings, the Senate issued P.S. Resolution No.
3888 expressing full support to the martial law proclamation and finding Proclamation No. 216
"to be satisfactory, constitutional and in accordance with the law". In the same Resolution, the
Senate declared that it found "no compelling reason to revoke the same". The Senate thus
resolved as follows:

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the

Senate, that the Senate finds the issuance of Proclamation No. 216 to be satisfactory,
constitutional and in accordance with the law. The Senate hereby supports fully Proclamation
No. 216 and finds no compelling reason to revoke the sarne.9
The Senate's counterpart in the lower house shared the same sentiments. The House of
Representatives likewise issued House Resolution No. 105010 "EXPRESSING THE FULL
SUPPORT OF THE HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE
AS IT FINDS NO REASON TO REVOKE PROCLAMATION NO. 216, ENTITLED 'DECLARING
A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.

The Petitions

A) G.R. No. 231658 (Lagman Petition)

On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano,

Emmanuel A. Billones, and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third
Paragraph of Section 18 of Article VII of the 1987 Constitution.

First, the Lagman Petition claims that the declaration of martial law has no sufficient factual
basis because there is no rebellion or invasion in Marawi City or in any part of Mindanao. It
argues that acts of terrorism in Mindanao do not constitute rebellion12 since there is no proof
that its purpose is to remove Mindanao or any part thereof from allegiance to the Philippines, its
laws, or its territory.13 It labels the flying of ISIS flag by the Maute Group in Marawi City and
other outlying areas as mere propaganda114 and not an open attempt to remove such areas
from the allegiance to the Philippine Government and deprive the Chief Executive of the
assertion and exercise of his powers and prerogatives therein. It contends that the Maute Group
is a mere private army, citing as basis the alleged interview of Vera Files with Joseph Franco
wherein the latter allegedly mentioned that the Maute Group is more of a "clan's private militia
latching into the IS brand theatrically to inflate perceived capability".15 The Lagman Petition
insists that during the briefing, representatives of the military and defense authorities did not
categorically admit nor deny the presence of an ISIS threat in the country but that they merely
gave an evasive answer16 that "there is ISIS in the Philippines".17 The Lagman Petition also
avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed conflict in
Marawi City was precipitated or initiated by the government in its bid to capture
Hapilon.18 Based on said statement, it concludes that the objective of the Maute Group's armed
resistance was merely to shield Hapilon and the Maute brothers from the government forces,
and not to lay siege on Marawi City and remove its allegiance to the Philippine Republic.19 It
then posits that if at all, there is only a threat of rebellion in Marawi City which is akin to
"imminent danger" of rebellion, which is no longer a valid ground for the declaration of martial
law.20

Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual
basis because the President's Report containef "false, inaccurate, contrived and hyperbolic
accounts".21

It labels as false the claim in the President's Report that the Maute Group attacked Amai
Pakpak Medical Center. Citing online reports on the interview of Dr. Amer Saber (Dr. Saber),
the hospital's Chief, the Lagman Petition insists that the Maute Group merely brought an injured
member to the hospital for treatment but did not overrun the hospital or harass the hospital
personnel. 22 The Lagman Petition also refutes the claim in the President's Report that a branch
of the Landbank of the Philippines was ransacked and its armored vehicle commandeered. It
alleges that the bank employees themselves clarified that the bank was not ransacked while the
armored vehicle was owned by a third party and was empty at the time it was
commandeered.23 It also labels as false the report on the burning of the Senator Ninoy Aquino
College Foundation and the Marawi Central Elementary Pilot School. It avers that the Senator
Ninoy Aquino College Foundation is intact as of May 24, 2017 and that according to Asst.
Superintendent Ana Alonto, the Marawi Central Elementary Pilot School was not burned by the
terrorists.24 Lastly, it points out as false the report on the beheading of the police chief of
Malabang, Lanao del Sur, and the occupation of the Marawi City Hall and part of the Mindanao
State University.25

Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual
basis since the President's Report mistakenly included the attack on the military outpost in
Butig, Lanao del Sur in February 2016, the mass jail break in Marawi City in August 2016, the
Zamboanga siege, the Davao market bombing, the Mamasapano carnage and other bombing
incidents in Cotabato, Sultan Kudarat, and Basilan, as additional factual bases for the
proclamation of martial law. It contends that these events either took place long before the
conflict in Marawi City began, had long been resolved, or with the culprits having already been
arrested.26

Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual
basis considering that the President acted alone and did not consult the military establishment
or any ranking official27 before making the proclamation.

Finally, the Lagman Petition claims that the President's proclamation of martial law lacks
sufficient factual basis owing to the fact that during the presentation before the Committee of the
Whole of the House of Representatives, it was shown that the military was even successful in
pre-empting the ASG and the Maute Group's plan to take over Marawi City and other parts of
Mindanao; there was absence of any hostile plan by the Moro Islamic Liberation Front; and the
number of foreign fighters allied with ISIS was "undetermined"28 which indicates that there are
only a meager number of foreign fighters who can lend support to the Maute Group.29

Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its
specific and special jurisdiction to review the sufficiency of the factual basis of Proclamation No.
216"; and (2) render "a Decision voiding and nullifying Proclamation No. 216" for lack of
sufficient factual basis.30

In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the

Lagman Petition and set the case for oral argument on June 13, 14, and 15, 2017.

On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were
filed and eventually consolidated with G.R. No. 231658.32

B) G.R. No. 231771 (Cullamat Petition)

The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewise seeks
the nullification of Proclamation No. 216 for being unconstitutional because it lacks sufficient
factual basis that there is rebellion in Mindanao and that public safety warrants its declaration. 34

In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to
events happening in Marawi City only an not in the entire region of Mindanao. It concludes that
Proclamation No 216 "failed to show any factual basis for the imposition of martial law in
the entire Mindanao,"35 "failed to allege any act of rebellion outside Marawi City, much less x x x
allege that public safety requires the imposition o martial law in the whole of Mindanao".36

The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel
groups to sow terror and cause death and damage to property"37 does not rise to the level of
rebellion sufficient to declare martial law in the whole of Mindanao.38 It also posits that there is
no lawless violence in other parts of Mindanao similar to that in Marawi City.39

Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the
last Whereas Clause of Proclamation No. 216 for being vague as it failed to identify these rebel
groups and specify the acts of rebellion that they were supposedly waging.40

In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the
Report of the President to Congress, particularly the attack at the Amai Pakpak Hospital, the
ambush and burning of the Marawi Police Station, the killing of five teachers of Dansalan
College Foundation, and the attacks on various government facilities.41

In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as
unconstitutional or in the alternative, should the Court find justification for the declaration of
martial law and suspension of the privilege of the writ of habeas corpus in Marawi City, to
declare the same as unconstitutional insofar as its inclusion of the other parts of Mindanao.42

C) G.R. No. 231774 (Mohamad Petition)

The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual
Basis of [the] Declaration of Martial Law and [the] Suspension of the Privilege of the Writ
of Habeas Corpus,"43 labels itself as "a special proceeding"44 or an "appropriate proceeding filed
by any citizen"45 authorized under Section 18, Article VII of the Constitution.

The Mohamad Petition posits that martial law is a measure of last resort46 and should be
invoked by the President only after exhaustion of less severe remedies.47 It contends that the
extraordinary powers of the President should be dispensed sequentially, i.e., first, the power to
call out the armed forces; second, the power to suspend the privilege of the writ of habeas
corpus; and finally, the power to declare martial law.48 It maintains that the President has no
discretion to choose which extraordinary power to use; moreover, his choice must be dictated
only by, and commensurate to, the exigencies of the situation.49

According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require
the imposition of martial law.50 It asserts that the Marawi incidents "do not equate to the
existence of a public necessity brought about by an actual rebellion, which would compel the
imposition of martial law or the suspension of the privilege of the writ of habeas corpus".51 It
proposes that "[m]artial law can only be justified if the rebellion or invasion has reached such
gravity that [its] imposition x x x is compelled by the needs of public safety"52 which, it believes,
is not yet present in Mindanao.

Moreover, it alleges that the statements contained in the President's Report to the Congress, to
wit: that the Maute Group intended to establish an Islamic State; that they have the capability to
deprive the duly constituted authorities of their powers and prerogatives; and that the Marawi
armed hostilities is merely a prelude to a grander plan of taking over the whole of Mindanao, are
conclusions bereft of substantiation.53
The Mohamad Petition posits that immediately after the declaration of martial law, and without
waiting for a congressional action, a suit may already be brought before the Court to assail the
sufficiency of the factual basis of Proclamation No. 216.

Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the
declaration of martial law and the suspension of the privilege of the writ of habeas corpus, the
Mohamad Petition insists that the Court may "look into the wisdom of the [President's] actions,
[and] not just the presence of arbitrariness".54 Further, it asserts that since it is making a
negative assertion, then the burden to prove the sufficiency of the factual basis is shifted to and
lies on the respondents.55 It thus asks the Court "to compel the [r]espondents to divulge relevant
information"56 in order for it to review the sufficiency of the factual basis.

In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel
respondents to present proof on the factual basis [of] the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus in Mindanao"57 and declare as
unconstitutional Proclamation No. 216 for lack of sufficient factual basis.

The Consolidated Comment

The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the
Court. Noting that the same coincided with the celebration of the 119th anniversary of the
independence of this Republic, the Office of the Solicitor General (OSG) felt that "defending the
constitutionality of Proclamation No. 216" should serve as "a rallying call for every Filipino to
unite behind one true flag and defend it against all threats from within and outside our shores".59

The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the
authority or power to review the sufficiency of the factual basis of the declaration of martial
law.60 The OSG, however, posits that although Section 18, Article VII lays the basis for the
exercise of such authority or power, the same constitutional provision failed to specify the
vehicle, mode or remedy through which the "appropriate proceeding" mentioned therein may be
resorted to. The OSG suggests that the "appropriate proceeding" referred to in Section 18,
Article VII may be availed of using the vehicle, mode or remedy of a certiorari petition, either
under Section 1 or 5, of Article VIII.61 Corollarily, the OSG maintains that the review power is not
mandatory, but discretionary only, on the part of the Court. 62 The Court has the discretion not to
give due course to the petition.63

Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of
Proclamation No. 216 should be reviewed by the Court "under the lens of grave abuse of
discretion"64 and not the yardstick of correctness of the facts.65 Arbitrariness, not correctness,
should be the standard in reviewing the sufficiency of factual basis.

The OSG maintains that the burden lies not with the respondents but with the petitioners to
prove that Proclamation No. 216 is bereft of factual basis.1âwphi1 It thus takes issue with
petitioners' attempt to shift the burden of proof when they asked the Court "to compel [the]
respondents to present proof on the factual basis"66 of Proclamation No. 216. For the OSG, "he
who alleges must prove"67 and that governmental actions are presumed to be valid and
constitutional.68

Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the
trajectory or point of view of the President and base on the facts available to him at the time the
decision was made.69 It argues that the sufficiency of the factual basis should be
examined not based on the facts discovered after the President had made his decision to
declare martial law because to do so would subject the exercise of the President's discretion to
an impossible standard.70 It reiterates that the President's decision should be guided only by the
information and data available to him at the time he made the determination.71 The OSG thus
asserts that facts that were established after the declaration of martial law should not be
considered in the review of the sufficiency of the factual basis of the proclamation of martial law.
The OSG suggests that the assessment of after-proclamation facts lies with the President and
Congress for the purpose of determining the propriety of revoking or extending the martial law.
The OSG fears that if the Court considers after-proclamation-facts in its review of the sufficiency
of the factual basis for the proclamation, it would in effect usurp the powers of the Congress to
determine whether martial law should be revoked or extended.72

It is also the assertion of the OSG that the President could validly rely on intelligence reports
coming from the Armed Forces of the Philippines;73 and that he could not be expected to
personally determine the veracity of thecontents of the reports.74 Also, since the power to
impose martial law is vested solely on the President as Commander-in-Chief, the lack of
recommendation from the Defense Secretary, or any official for that matter, will not nullify the
said declaration, or affect its validity, or compromise the sufficiency of the factual basis.

Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by
the President in Proclamation No. 216 and in his Report to the Congress by merely citing news
reports that supposedly contradict the facts asserted therein or by criticizing in piecemeal the
happenings in Marawi. For the OSG, the said news articles are "hearsay evidence, twice
removed,"75 and thus inadmissible and without probative value, and could not overcome the
"legal presumption bestowed on governmental acts".76

Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has
sufficient factual basis. It maintains that the burden rests with the petitioners. However, the OSG
still endeavors to lay out the factual basis relied upon by the President "if only to remove any
doubt as to the constitutionality of Proclamation No. 216".77

The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the
Court's Ruling.

ISSUES

The issues as contained in the revised Advisory78 are as follows:

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the
"appropriate proceeding" covered by Paragraph 3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required of this Court when a declaration of martial law
or the suspension of the privilege of the writ of habeas corpus is promulgated;

2. Whether or not the President in declaring martial law and suspending the privilege of the writ
of habeas corpus:

a. is required to be factually correct or only not arbitrary in his appreciation of facts;

b. is required to obtain the favorable recommendation thereon of the Secretary of National
Defense;

c. is required to take into account only the situation at the time of the proclamation, even if
subsequent events prove the situation to have not been accurately reported;

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is
independent of the actual actions that have been taken by Congress jointly or separately;

4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus;

a. What are the parameters for review?

b. Who has the burden of proof?

c. What is the threshold of evidence?

5. Whether the exercise of the power of judicial review by this Court involves the calibration of
graduated powers granted the President as Commander-in-Chief, namely calling out powers,
suspension of the privilege of the writ of habeas corpus, and declaration of martial law;

6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus
null and void:

a. with its inclusion of "other rebel groups;" or

b. since it has no guidelines specifying its actual operational parameters within the entire
Mindanao region;

7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of
the President to Congress are sufficient [bases]:

a. for the existence of actual rebellion; or

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas
corpus in the entire Mindanao 1 region;

8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and
the requirements of public safety sufficient to declare martial law or suspend the privilege of the
writ of habeas corpus; and

9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:

a. have the effect of recalling Proclamation No. 55 s. 2016; or

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in
Marawi and other parts of the Mindanao region.
After the oral argument, the parties submitted their respective memoranda and supplemental
memoranda.

OUR RULING

I. Locus standi of petitioners.

One of the requisites for judicial review is locus standi, i.e., "the constitutional question is
brought before [the Court] by a party having the requisite 'standing' to challenge it."79 As a
general rule, the challenger must have "a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its enforcement."80 Over the years,
there has been a trend towards relaxation of the rule on legal standing, a prime example of
which is found in Section 18 of Article VII which provides that any citizen may file the
appropriate proceeding to assail the sufficiency of the factual basis of the declaration of martial
law or the suspension of the privilege of the writ of habeas corpus. "[T]he only requisite for
standing to challenge the validity of the suspension is that the challenger be a citizen. He need
not even be a taxpayer."81

Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the
Republic;"82 similarly, petitioners in the Mohamad Petition all claim to be "Filipino citizens, all
women, all of legal [age], and residents of Marawi City".83 In the Lagman Petition, however,
petitioners therein did not categorically mention that they are suing's citizens but merely referred
to themselves as duly elected Representatives.84 That they are suing in their official capacities
as Members of Congress couLd have elicited a vigorous discussion considering the issuance by
the House of Representatives of House Resolution No. 1050 expressing full support to
President Duterte and finding no reason to revoke Proclamation No. 216. By such resolution,
the House of Representatives is declaring that it finds no reason to review the sufficiency of the
factual basis of the martial law declaration, which is in direct contrast to the views and
arguments being espoused by the petitioners in the Lagman Petition. Considering, however, the
trend towards relaxation of the rules on legal standing, as well as the transcendental issues
involved in the present Petitions, the Court will exercise judicial self-restraint85 and will not
venture into this matter. After all, "the Court is not entirely without discretion to accept a suit
which does not satisfy the requirements of a [bona fide] case or of standing. Considerations
paramount to [the requirement of legal standing] could compel assumption of jurisdiction."86 In
any case, the Court can take judicial cognizance of the fact that petitioners in the Lagman
Petition are all citizens of the Philippines since Philippine citizenship is a requirement for them to
be elected as representatives. We will therefore consider them as suing in their own behalf as
citizens of this country. Besides, respondents did not question petitioners' legal standing.

II. Whether or not the petitions are the

"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.

All three petitions beseech the cognizance of this Court based on the third paragraph of Section
18, Article VII (Executive Department) of the 1987 Constitution which provides:

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

During the oral argument, the petitioners theorized that the jurisdiction of this Court under the
third paragraph of Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of
the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.88

The Court agrees.

a) Jurisdiction must be
specifically conferred by the
Constitution or by law.

It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the
law.89 Unless jurisdiction has been specifically conferred by the Constitution or by some
legislative act, no body or tribunal has the power to act or pass upon a matter brought before it
for resolution. It is likewise settled that in the absence of a clear legislative intent, jurisdiction
cannot be implied from the language of the Constitution or a statute.90 It must appear clearly
from the law or it will not be held to exist.91

A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants
authority to the Court to determine the sufficiency of the factual basis of the proclamation of
martial law or suspension of the privilege of the writ of habeas corpus.

b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII

It could not have been the intention of the framers of the Constitution that the phrase "in an
appropriate proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section
5 of Article VIII. The standard of review in a petition for certiorari is whether the respondent has
committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the
performance of his or her functions. Thus, it is not the proper tool to review the sufficiency of the
factual basis of the proclamationor suspension. It must be emphasized that under Section 18,
Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's
exercise of emergency powers. Put differently, if this Court applies the standard of review used
in a petition for certiorari, the same would emasculate its constitutional task under Section 18,
Article VII.

c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.

The third paragraph of Section 18, Article VII was inserted by the framers of the 1987
Constitution to constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter of
the Petition for Habeas Corpus of Lansang,92 to wit: that the factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus is not a political
question but precisely within the ambit of judicial review.

"In determining the meaning, intent, and purpose of a law or constitutional provision, the history
of the times out of which it grew and to which it may be rationally supposed to bear some direct
relationship, the evils intended to be remedied, and the good to be accomplished are proper
subjects of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional
Commission that drafted the 1987 Constitution, explained:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand
Marcos to impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court
decisions during that period upholding the actions taken by Mr. Marcos made authoritarian rule
part of Philippine constitutional jurisprudence. The members of the Constitutional Commission,
very much aware of these facts, went about reformulating the Commander-in-Chief powers with
a view to dismantling what had been constructed during the authoritarian years. The new
formula included revised grounds for the activation of emergency powers, the manner of
activating them, the scope of the powers, and review of presidential action.94 (Emphasis
supplied)

To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to
decide whether there is a state of rebellion requiring the suspension of the privilege of the writ
of habeas corpus is lodged with the President and his decision thereon is final and conclusive
upon the courts. This ruling was reversed in the 1971 case of Lansang where it was held that
the factual basis of the declaration of martial law and the suspension of the privilege of the writ
of habeas corpus is not a political question and is within the ambit of judicial review.96 However,
in 1983, or after the declaration of martial law by former President Ferdinand E. Marcos, the
Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted
to Montenegro. According to the Supreme Court, the constitutional power of the President to
suspend the privilege of the writ of habeas corpus is not subject to judicial inquiry.98

Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of
martial law and suspension of the privilege of the writ of habeas corpus, the framers of the 1987
Constitution in effect constitutionalized and reverted to the Lansang doctrine.

d) Purpose of Section 18,

Article VII is to provide additional
safeguard against possible abuse by
the President on the exercise of the
extraordinary powers.

Section 18, Article VII is meant to provide additional safeguard against possible abuse by the
President in the exercise of his power to declare martial law or suspend the privilege of the writ
of habeas corpus. Reeling from the aftermath of the Marcos martial law, the framers of the
Constitution deemed it wise to insert the now third paragraph of Section 18 of Article VII.99 This
is clear from the records of the Constitutional Commission when its members were deliberating
on whether the President could proclaim martial law even without the concurrence of Congress.
Thus:

MR. SUAREZ. Thank you, Madam President.

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular, phrase. May we be informed
of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I
understand it, the interpretation is a situation of actual invasion or rebellion. In these situations,
the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

MR. SUAREZ. Given our traumatic experience during the past administration, if we give
exclusive right to the President to determine these factors, especially the existence of an
invasion or rebellion and the second factor of determining whether the public safety requires it
or not, may I call the attention of the Gentleman to what happened to us during the past
administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
President of the Philippines by virtue of the powers vested upon him purportedly under Article
VII, Section 10 (2) of the Constitution, wherein he made this predicate under the "Whereas"
provision:

Whereas, the rebellion and armed action undertaken by these lawless elements of the
Communists and other armed aggrupations organized to overthrow the Republic of the
Philippines by armed violence and force have assumed the magnitude of an actual state of war
against our people and the Republic of the Philippines.

And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by
Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein he said,
among other things:

Whereas, martial law having been declared because of wanton destruction of lives and
properties, widespread lawlessness and anarchy and chaos and disorder now prevailing
throughout the country, which condition has been brought about by groups of men who are
actively engaged in a criminal conspiracy to seize political and state power in the Philippines in
order to take over the government by force and violence, the extent of which has now assumed
the proportion of an actual war against our people and the legitimate government ...

And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and
declare martial law in our country without justifiable reason. Would the Gentleman still insist on
the deletion of the phrase 'and, with the concurrence of at least a majority of all the members of
the Congress'?

MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an

aberration in our history and national consciousness. But given the possibility that there would
be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true,
as the Gentleman has mentioned, that there is an exclusive right to determine the factual basis
because the paragraph beginning on line 9 precisely tells us that the Supreme Court may
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the
interests of the country. And here we are trying to balance the public interest in case of invasion
or rebellion as against the rights of citizens. And I am saying that there are enough safeguards,
unlike in 1972 when Mr. Marcos was able to do all those things mentioned.100

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only
placed the President's proclamation of martial law or suspension of the privilege of the writ
of habeas corpus within the ambit of judicial review, it also relaxed the rule on standing by
allowing any citizen to question before this Court the sufficiency of the factual basis of such
proclamation or suspension. Moreover, the third paragraph of Section 18, Article VII veritably
conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis
of said proclamation or suspension. It further designated this Court as the reviewing tribunal to
examine, in an appropriate proceeding, the sufficiency of the factual basis and to render its
decision thereon within a limited period of 30 days from date of filing.

e) Purpose of Section 18,

Article VII is to curtail the extent of
the powers of the President.

The most important objective, however, of Section 18, Article VII is the curtailment of the extent
of the powers of the Commander-in-Chief. This is the primary reason why the provision was not
placed in Article VIII or the Judicial Department but remained under Article VII or the Executive
Department.

During the closing session of the Constitutional Commission's deliberations, President Cecilia
Muñoz Palma expressed her sentiments on the 1987 Constitution. She said:

The executive power is vested in the President of the Philippines elected by the people for a six-
year term with no reelection for the duration of his/her life. While traditional powers inherent in
the office of the President are granted, nonetheless for the first time, there are specific
provisions which curtail the extent of such powers. Most significant is the power of the Chief
Executive to suspend the privilege of the writ of habeas corpus or proclaim martial law.

The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the
imposition of martial law for more than eight years and the suspension of the privilege of the writ
even after the lifting of martial law in 1981. The new Constitution now provides that those
powers can be exercised only in two cases, invasion or rebellion when public safety demands it,
only for a period not exceeding 60 days, and reserving to Congress the power to revoke such
suspension or proclamation of martial law which congressional action may not be revoked by
the President. More importantly, the action of the President is made subject to judicial review,
thereby again discarding jurisprudence which render[s] the executive action a political question
and beyond the jurisdiction of the courts to adjudicate.

For the first time, there is a provision that the state of martial law does not suspend the
operation of the Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction
to military tribunals over civilians, or suspend the privilege of the writ. Please forgive me if, at
this point, I state that this constitutional provision vindicates the dissenting opinions I have
written during my tenure in the Supreme Court in the martial law cases.101

f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.

To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the
expanded jurisdiction of this Court would, therefore, contradict the clear intention of the framers
of the Constitution to place additional safeguards against possible martial law abuse for,
invariably, the third paragraph of Section 18, Article VII would be subsumed under Section 1 of
Article VIII. In other words, the framers of the Constitution added the safeguard under the third
paragraph of Section 18, Article VII on top of the expanded jurisdiction of this Court.

g) Jurisdiction of the Court is

not restricted to those enumerated in
Sections I and 5 of Article VIII

The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article
VIII. For instance, its jurisdiction to be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President can be found in the last paragraph
of Section 4, Article VII.102 The power of the Court to review on certiorari the decision, order, or
ruling of the Commission on Elections and Commission on Audit can be found in Section 7,
Article IX(A).103

h) Unique features of the third

paragraph of Section 18, Article VII
make it sui generis.

The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should
be treated as sui generis separate and different from those enumerated in Article VIII. Under the
third paragraph of Section 18, Article VII, a petition filed pursuant therewith will follow a different
rule on standing as any citizen may file it. Said provision of the Constitution also limits the issue
to the sufficiency of the factual basis of the exercise by the Chief Executive of his emergency
powers. The usual period for filing pleadings in Petition for Certiorari is likewise not applicable
under the third paragraph of Section 18, Article VII considering the limited period within which
this Court has to promulgate its decision.

A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and
defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of
opposing judgments, and of executing."104 In fine, the phrase "in an appropriate proceeding"
appearing on the third paragraph of Section 18, Article VII refers to any action initiated by a
citizen for the purpose of questioning the sufficiency of the factual basis of the exercise of the
Chief Executive's emergency powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.

III. The power of the Court to review the

sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.

During the oral argument,105 the OSG urged the Court to give! deference to the actions of the
two co-equal branches of the Government: on' the part of the President as Commander-in-
Chief, in resorting to his extraordinary powers to declare martial law and suspend the privilege
of the writ of habeas corpus; and on the part of Congress, in giving its imprimatur to
Proclamation No. 216 and not revoking the same.

The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the
President as Commander-in-Chief and the review of the said presidential action. In particular,
the President's extraordinary powers of suspending the privilege of the writ of habeas
corpus and imposing martial law are subject to the veto powers of the Court and Congress.

a) The judicial power to review

versus the congressional power to
revoke.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by
any citizen on the ground of lack of sufficient factual basis. On the other hand, Congress may
revoke the proclamation or suspension, which revocation shall not be set aside by the
President.

In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court
considers only the information and data available to the President prior to or at the time of the
declaration; it is not allowed td "undertake an independent investigation beyond the
pleadings."106 On the other hand, Congress may take into consideration not only data available
prior to, but likewise events supervening the declaration. Unlike the Court I which does not look
into the absolute correctness of the factual basis as will be discussed below, Congress could
probe deeper and further; it can delve into the accuracy of the facts presented before it.

In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an
appropriate proceeding" by a citizen. On the other hand, Congress' review mechanism is
automatic in the sense that it may be activated by Congress itself at any time after the
proclamation or suspension was made.

Thus, the power to review by the Court and the power to revoke by Congress are not only totally
different but likewise independent from each other although concededly, they have the same
trajectory, which is, the nullification of the presidential proclamation. Needless to say, the power
of the Court to review can be exercised independently from the power of revocation of
Congress.

b) The framers of the 1987

Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.
If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and
Congress with veto powers independently from each other, we quote the following exchange:

MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that
Congress will be able to revoke such proclamation.

MR. RAMA. Yes.

MS. QUESADA. But now, if they cannot meet because they have been arrested or that the
Congress has been padlocked, then who is going to declare that such a proclamation was not
warranted?

xxxx

MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just
standing by. A petition for a writ of habeas corpus, if the Members are detained, can
immediately be applied for, and the Supreme Court shall also review the factual basis. x x x107

c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo

Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and
set aside its pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that:

Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit
that the Court must allow Congress to exercise its own review powers, which is automatic rather
than initiated. Only when Congress defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as its final rampart. The constitutional
validity of the President's proclamation of martial law or suspension of the writ of habeas
corpus is first a political question in the hands of Congress before it becomes a justiciable one
in the hands of the Court.109

xxxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can step in, hear the petitions
challenging the President's action, and ascertain if it has a factual basis. x x x110

By the above pronouncement, the Court willingly but unwittingly clipped its own power and
surrendered the same to Congress as well as: abdicated from its bounden duty to review.
Worse, the Court considered' itself just on stand-by, waiting and willing to act as a substitute in
case Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set
aside in this proceeding.111

We, therefore, hold that the Court can simultaneously exercise its power of review with, and
independently from, the power to revoke by Congress. Corollary, any perceived inaction or
default on the part of Congress does not deprive or deny the Court of its power to review.
IV. The judicial power to review the sufficiency
of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.

The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the
armed forces; b) suspending the privilege of the writ of habeas corpus; and c) declaring martial
law.112 These powers may be resorted to only under specified conditions.

The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by
revising the "grounds for the activation of emergency powers, the manner of activating them, the
scope of the powers, and review of presidential action."113

a) Extraordinary powers of the

President distinguished.

Among the three extraordinary powers, the calling out power is the most benign and involves
ordinary police action.114 The President may resort to this extraordinary power whenever it
becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. "[T]he
power to call is fully discretionary to the President;"115 the only limitations being that he acts
within permissible constitutional boundaries or in a manner not constituting grave abuse of
discretion.116 In fact, "the actual use to which the President puts the armed forces is x x x not
subject to judicial review."117

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or
declaring martial law may be exercised only when there is actual invasion or rebellion, and
public safety requires it. The 1987 Constitution imposed the following limits in the exercise of
these powers: "(1) a time limit of sixty days; (2) review and possible revocation by Congress;
[and] (3) review and possible nullification by the Supreme Court."118

The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger
thereof' as grounds for the suspension of the privilege of the writ of habeas corpus or
declaration of martial law.119 They perceived the phrase "imminent danger" to be "fraught with
possibilities of abuse;"120 besides, the calling out power of the President "is sufficient for
handling imminent danger."121

The powers to declare martial law and to suspend the privilege of the writ of habeas
corpus involve curtailment and suppression of civil rights and individual freedom. Thus, the
declaration of martial law serves as a warning to citizens that the Executive Department has
called upon the military to assist in the maintenance of law and order, and while the emergency
remains, the citizens must, under pain of arrest and punishment, not act in a manner that will
render it more difficult to restore order and enforce the law.122 As such, their exercise requires
more stringent safeguards by the Congress, and review by the Court.123

b) What really happens during martial law?

During the oral argument, the following questions cropped up: What really happens during the
imposition of martial law? What powers could the President exercise during martial law that he
could not exercise if there is no martial law? Interestingly, these questions were also discussed
by the framers of the 1987 Constitution, viz.:

FR. BERNAS. That same question was asked during the meetings of the Committee: What
precisely does martial law add to the power of the President to call on the armed forces? The
first and second lines in this provision state:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is
the case of Aquino v. COMELEC where the Supreme Court said that in times of martial law, the
President automatically has legislative power. So these two clauses denied that. A state of
martial law does not suspend the operation of the Constitution; therefore, it does not suspend
the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave
to that question in the Committee was: During martial law, the President may have the powers
of a commanding general in a theatre of war. In actual war when there is fighting in an area, the
President as the commanding general has the authority to issue orders which have the effect of
law but strictly in a theater of war, not in the situation we had during the period of martial law. In
other words, there is an effort here to return to the traditional concept of martial law as it was
developed especially in American jurisprudence, where martial law has reference to the theater
of war.124

xxxx

FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of
martial law; meaning, limiting it to martial law as it has existed in the jurisprudence in
international law, that it is a law for the theater of war. In a theater of war, civil courts are unable
to function. If in the actual theater of war civil courts, in fact, are unable to function, then the
military commander is authorized to give jurisdiction even over civilians to military courts
precisely because the civil courts are closed in that area. But in the general area where the civil
courts are open then in no case can the military courts be given jurisdiction over civilians. This is
in reference to a theater of war where the civil courts, in fact, are unable to function.

MR. FOZ. It is a state of things brought about by the realities of the situation in that specified
critical area.

FR. BERNAS. That is correct.

MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-
Chief.

FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The

understanding here is that the phrase 'nor authorize the conferment of jurisdiction on military
courts and agencies over civilians' has reference to the practice under the Marcos regime where
military courts were given jurisdiction over civilians. We say here that we will never allow that
except in areas where civil courts are, in fact, unable to function and it becomes necessary for
some kind of court to function.125

A state of martial law is peculiar because the President, at such a time, exercises police power,
which is normally a function of the Legislature. In particular, the President exercises police
power, with the military’s assistance, to ensure public safety and in place of government
agencies which for the time being are unable to cope with the condition in a locality, which
remains under the control of the State.126

In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's

(Justice Mendoza) Statement before the Senate Committee on Justice on March 13, 2006,
stated that under a valid declaration of martial law, the President as Commander-in-Chief may
order the "(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c)
[takeover] of news media and agencies and press censorship; and (d) issuance of Presidential
Decrees x x x".128

Worthy to note, however, that the above-cited acts that the President may perform do not give
him unbridled discretion to infringe on the rights of civilians during martial law. This is because
martial law does not suspend the operation of the Constitution, neither does it supplant the
operation of civil courts or legislative assemblies. Moreover, the guarantees under the Bill of
Rights remain in place during its pendency. And in such instance where the privilege of the writ
of habeas corpus is also suspended, such suspension applies only to those judicially charged
with rebellion or offenses connected with invasion.129

Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties,130 the
Constitution has safeguards against the President's prerogative to declare a state of martial law.

c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of
'graduated power[s]'. 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."131 It must be stressed, however, that the graduation refers only to hierarchy based on
scope and effect. It does not in any manner refer to a sequence, arrangement, or order which
the Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or
restrict the manner by which the President decides which power to choose.

These extraordinary powers are conferred by the Constitution with the President as
Commander-in-Chief; it therefore necessarily follows that the power and prerogative to
determine whether the situation warrants a mere exercise of the calling out power; or whether
the situation demands suspension of the privilege of the writ of habeas corpus; or whether it
calls for the declaration of martial law, also lies, at least initially, with the President. The power
to choose, initially, which among these extraordinary powers to wield in a given set of conditions
is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or threats that endanger the
government, and the very integrity of the State.132

It is thus beyond doubt that the power of judicial review does not extend to calibrating the
President's decision pertaining to which extraordinary power to avail given a set of facts or
conditions. To do so would be tantamount to an incursion into the exclusive domain of the
Executive and an infringement on the prerogative that solely, at least initially, lies with the
President.

d) The framers of the 1987

Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.

The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence
of the Congress in the initial imposition of martial law or suspension of the privilege of the writ
of habeas corpus further supports the conclusion that judicial review does not include the
calibration of the President's decision of which of his graduated powers will be availed of in a
given situation. Voting 28 to 12, the framers of the 1987 Constitution removed the requirement
of congressional concurrence in the first imposition of martial law and suspension of the
privilege.133

MR. PADILLA.x x x

We all agree with the suspension of the writ or the proclamation of martial law should not
require beforehand the concurrence of the majority of the Members of the Congress. However,
as provided by the Committee, the Congress may revoke, amend, or shorten or even increase
the period of such suspension.134

xxxx

MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first
imposition of martial law there is no need for concurrence of the Members of Congress because
the provision says 'in case of actual invasion or rebellion.' If there is actual invasion and
rebellion, as Commissioner Crispino de Castro said, there is a need for immediate response
because there is an attack. Second, the fact of securing a concurrence may be impractical
because the roads might be blocked or barricaded. x x x So the requirement of an initial
concurrence of the majority of all Members of the Congress in case of an invasion or rebellion
might be impractical as I can see it.

Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.

And third, the matter of declaring martial law is already a justiciable question and no longer a
political one in that it is subject to judicial review at any point in time. So on that basis, I agree
that there is no need for concurrence as a prerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x135

xxxx
MR. SUAREZ. Thank you.

The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and,
with the concurrence of at least a majority of all the Members of the Congress...'

MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ
of habeas corpus or also the declaration of martial law.

MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an
exclusive prerogative of the President?

MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be
shortened by the Congress or the Senate because the next sentence says that the Congress or
the Senate may even revoke the proclamation.136

xxxx

MR. SUAREZ. x x x

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular phrase. May we be informed
of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I
understand it, the interpretation is a situation of actual invasion or rebellion. In these situations,
the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

xxxx

MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an
aberration in our history and national consciousness. But given the possibility that there would
be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true,
as the Gentleman mentioned, that there is an exclusive right to determine the factual basis
because the paragraph being on line 9 precisely tells us that the Supreme court may review, in
an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof
and must promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the
interests of the country. And here we are trying to balance the public interest in case of invasion
or rebellion as against the rights of citizens. x x x

MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What
we are looking for are safeguards that arereasonable and, I believe, adequate at this point. On
the other hand, in case of invasion or rebellion, even during the first 60 days when the intention
here is to protect the country in that situation, it would be unreasonable to ask that there should
be a concurrence on the part of the Congress, which situation is automatically terminated at the
end of such 60 days.

xxxx

MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative
check on this awesome power of the Chief Executive acting as Commander-in-Chief?

MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those
conditions.

MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?

MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of
Congress would be available; and, secondly, the President will be able to act quickly in order to
deal with the circumstances.

MR. SUAREZ. So, we would be subordinating actual circumstances to expediency?

MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the
event of an invasion or a rebellion.137

The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to
interfere a priori in the President's choice of extraordinary powers.

e) The Court must similarly

and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.

It cannot be overemphasized that time is paramount in situations necessitating the proclamation

of martial law or suspension of the privilege of the writ of habeas corpus. It was precisely this
time element that prompted the Constitutional Commission to eliminate the requirement of 1
concurrence of the Congress in the initial imposition by the President of martial law or
suspension of the privilege of the writ of habeas corpus.

Considering that the proclamation of martial law or suspension of the privilege of the writ
of habeas corpus is now anchored on actual invasion or rebellion and when public safety
requires it, and is no longer under threat or in imminent danger thereof, there is a necessity and
urgency for the President to act quickly to protect the country.138 The Court, as Congress does,
must thus accord the President the same leeway by not wading into the realm that is reserved
exclusively by the Constitution to the Executive Department.
j) The recommendation of the
Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.

Even the recommendation of, or consultation with, the Secretary of National Defense, or other
high-ranking military officials, is not a condition for the President to declare martial law. A plain
reading of Section 18, Article VII of the Constitution shows that the President's power to declare
martial law is not subject to any condition except for the requirements of actual invasion or
rebellion and that public safety requires it. Besides, it would be contrary to common sense if the
decision of the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.

g) In any event, the President

initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.

At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of
martial law on May 23, 201 7, the President had already issued Proclamation No. 55 on
September 4, 2016, declaring a state of national emergency on account of lawless violence in
Mindanao. This, in fact, is extant in the first Whereas Clause of Proclamation No. 216. Based on
the foregoing presidential actions, it can be gleaned that although there is no obligation or
requirement on his part to use his extraordinary powers on a graduated or sequential basis, still
the President made the conscious anddeliberate effort to first employ the most benign from
among his extraordinary powers. As the initial and preliminary step towards suppressing and
preventing the armed hostilities in Mindanao, the President decided to use his calling out power
first. Unfortunately, the situation did not improve; on the contrary, it only worsened. Thus,
exercising his sole and exclusive prerogative, the President decided to impose martial law and
suspend the privilege of the writ of habeas corpus on the belief that the armed hostilities in
Mindanao already amount to actual rebellion and public safety requires it.

V. Whether or not Proclamation No. 216 may

be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.

Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion
of the phrase "other rebel groups"139 in its Whereas Clause and for lack of available guidelines
specifying its actual operational parameters within the entire Mindanao region, making the
proclamation susceptible to broad interpretation, misinterpretation, or confusion.

This argument lacks legal basis.

a) Void-for-vagueness doctrine.

The void-for-vagueness doctrine holds that a law is facially invalid if "men of common
intelligence must necessarily guess at its meaning and differ as to its application."140 "[A] statute
or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. [In such instance,
the statute] is repugnant to the Constitution in two respects: (1) it violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle."141

b) Vagueness doctrine applies

only in free speech cases.

The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First Amendment cases.142 A facial
challenge is allowed to be made to a vague statute and also to one which is overbroad because
of possible "'chilling effect' on protected speech that comes from statutes violating free speech.
A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime.
The overbroad or vague law thus chills him into silence."143

It is best to stress that the vagueness doctrine has a special application only to free-speech
cases. They are not appropriate for testing the validity of penal statutes.144 Justice Mendoza
explained the reason as follows:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible 'chilling effect' upon protected speech. The theory is that ' [w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to
society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of free speech.

xxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing 'on their faces' statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that'one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges
in the First Amendment context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated [only] 'as applied'
to a particular defendant.' x x x145

Invalidation of statutes "on its face" should be used sparingly because it results in striking down
statutes entirely on the ground that they might beapplied to parties not before the Court whose
activities are constitutionally protected.146 "Such invalidation would constitute a departure from
the usual requirement of 'actual case and controversy' and permit decisions to be made in a
sterile abstract context having no factual concreteness."147

c) Proclamation No. 216

cannot be facially challenged using
the vagueness doctrine.

Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted.
Proclamation No. 216 does not regulate speech, religious freedom, and other fundamental
rights that may be facially challenged.148 What it seeks to penalize is conduct, not speech.

As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of

Proclamation No. 1017, issued by then President Gloria Macapagal-Arroyo declaring a state of
national emergency, on ground o vagueness is uncalled for since a plain reading of
Proclamation No. 10171 shows that it is not primarily directed at speech or even speech-
related1 conduct. It is actually a call upon the Armed Forces of the Philippines (AFP) to prevent
or suppress all forms of lawless violence. Like Proclamation No. 1017, Proclamation No. 216
pertains to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

d) Inclusion of "other rebel

groups " does not make Proclamation
No.216 vague.

The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad
interpretation, misinterpretation, and confusion, cannot be sustained.

In People v. Nazario,150 the Court enunciated that:

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that
men 'of common intelligence must necessarily guess at its meaning and differ as to its
application.' It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targetted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a
saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court
struck down an ordinance that had made it illegal for 'three or more persons to assemble on any
sidewalk and there conduct themselves in a manner annoying to persons passing by.' Clearly,
the ordinance imposed no standard at all 'because one may never know in advance what
annoys some people but does not annoy others.'
Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident
on its face. It is to be distinguished, however, from legislation couched in imprecise language -
but which nonetheless specifies a standard though defectively phrased - in which case, it may
be 'saved' by proper construction.151

The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the
context of the words that accompany it. Verily, the text of Proclamation No. 216 refers to "other
rebel groups" found in Proclamation No. 55, which it cited by way of reference in its Whereas
clauses.

e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.

Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it
has no guidelines specifying its actual operational parameters within the entire Mindanao
region. Besides, operational guidelines will serve only as mere tools for the implementation of
the proclamation. In Part III, we declared that judicial review covers only the sufficiency of
information or data available to or known to the President prior to, or at the time of, the
declaration or suspension. And, as will be discussed exhaustively in Part VII, the review will be
confined to the proclamation itself and the Report submitted to Congress.

Clearly, therefore, there is no need for the Court to determine the constitutionality of the
implementing and/or operational guidelines, general orders, arrest orders and other orders
issued after the proclamation for being irrelevant to its review. Thus, any act committed under
the said orders in violation of the Constitution and the laws, such as criminal acts or human
rights violations, should be resolved in a separate proceeding. Finally, there is a risk that if the
Court wades into these areas, it would be deemed as trespassing into the sphere that is
reserved exclusively for Congress in the exercise of its power to revoke.

VI. Whether or not nullifying Proclamation No.

216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.

a) The calling out power is in a

different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.

The Court's ruling in these cases will not, in any way, affect the President's declaration of a
state of national emergency on account of lawless violence in Mindanao through Proclamation
No. 55 dated September 4, 2016, where he called upon the Armed Forces and the Philippine
National 1 Police (PNP) to undertake such measures to suppress any and all forms of lawless
violence in the Mindanao region, and to prevent such lawless violence from spreading and
escalating elsewhere in the Philippines.

In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different
category from the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law:

x x x Congress may revoke such proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing
with the revocation or review of the President's action to call out the armed forces. The
distinction places the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers
of the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification.153

In other words, the President may exercise the power to call out the Armed Forces
independently of the power to suspend the privilege of the writ of habeas corpus and to declare
martial law, although, of course, it may also be a prelude to a possible future exercise of the
latter powers, as in this case.

Even so, the Court's review of the President's declaration of martial law and his calling out the
Armed Forces necessarily entails separate proceedings instituted for that particular purpose.

As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his

power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion
may only be examined by the Court as to whether such power was exercised within permissible
constitutional limits or in a manner constituting grave abuse of discretion.155

In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to
sufficiently comply with the requisites of locus standi, as it was not able to show any specific
injury which it had suffered or could suffer by virtue of President Joseph Estrada's order
deploying the Philippine Marines to join the PNP in visibility patrols around the metropolis.156

This locus standi requirement, however, need not be complied with in so far as the Court's
jurisdiction to review the sufficiency of the factual basis of the President's declaration of martial
law or suspension of the privilege ofthe writ of habeas corpus is concerned. In fact, by
constitutional design, such review may be instituted by any citizen before the Court,157 without
the need to prove that he or she stands to sustain a direct and personal injury as a
consequence of the questioned Presidential act/s.

But, even assuming arguendo that the Court finds no sufficient basis for the declaration of
martial law in this case, such ruling could not affect the President's exercise of his calling out
power through Proclamation No. 55.

b) The operative fact doctrine.

Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the
President done pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute
is recognized as an "operative fact" before it is declared unconstitutional.158
Where the assailed legislative or executive act is found by the judiciary to be contrary to the
Constitution, it is null and void. As the new Civil Code puts it: 'When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.' The above provision of the Civil Code reflects the
orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers
no rights, imposes no duties, and affords no protection. This doctrine admits of qualifications,
however. As the American Supreme Court stated: 'The actual existence of a statute prior to
such a determination [of constitutionality], is an operative fact and may have consequences
which cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to the invalidity may have to be considered in various aspects, - with respect to
particular regulations, individual and corporate, and particular conduct, private and official.

The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and
provides the measure for the validity of legislative or executive acts. Clearly then, neither the
legislative nor the executive branch, and for that matter much less, this Court, has power under
the Constitution to act contrary to its terms. Any attempted exercise of power in violation of its
provisions is to that extent unwarranted and null.

The growing awareness of the role of the judiciary as the governmental organ which has the
final say on whether or not a legislative or executive measure is valid leads to a more
appreciative attitude of theemerging concept that a declaration of nullity may have legal
consequences which the more orthodox view would deny. That for a period of time such a
statute, treaty, executive order, or ordinance was in 'actual existence' appears to be
indisputable. What is more appropriate and logical then than to consider it as 'an operative fact?'
(Emphasis supplied)159

However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that
would repulse any challenge to acts performed during the effectivity of martial law or suspension
of the privilege of the writ of habeas corpus, purportedly in furtherance of quelling rebellion or
invasion, and promotion of public safety, when evidence shows otherwise.

VII. The Scope of the Power to Review.

a) The scope of the power of

review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.

To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of
Lansang,160 which was decided under the 1935 Constitution,161 held that it can inquire into,
within proper bounds, whether there has been adherence to or compliance with the
constitutionally-imposed limitations on the Presidential power to suspend the privilege of the writ
of habeas corpus.162 "Lansang limited the review function of the Court to a very prudentially
narrow test of arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as follows:
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the
general answer that its power was 'merely to check - not to supplant - the Executive, or
to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not
to exercise the power vested in him or to determine the wisdom of his act. More specifically, the
Court said that its power was not 'even comparable with its power over civil or criminal cases
elevated thereto by appeal...in which cases the appellate court has all the powers of the courtof
origin,' nor to its power of quasi-judicial administrative decisions where the Court is limited to
asking whether 'there is some evidentiary basis' for the administrative finding. Instead, the Court
accepted the Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that
the President's decision is correct and that public safety was endangered by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the President did not act
arbitrarily.'164

Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by
providing only for judicial review based on the determination of the sufficiency of the factual
bases, has in fact done away with the test of arbitrariness as provided in Lansang.

b) The "sufficiency of factual

basis test".

Similarly, under the doctrine of contemporaneous construction, the framers of the 1987
Constitution are presumed to know the prevailing jurisprudence at the time they were drafting
the Constitution. Thus, the phrase "sufficiency of factual basis" in Section 18, Article VII of the
Constitution should be understood as the only test for judicial review of the President's power to
declare martial law and suspend the privilege of the writ of habeas corpus under Section 18,
Article VII of the Constitution. The Court does not need to satisfy itself that the President's
decision is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.

We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the
introduction of the "sufficiency of the factual basis" test.

As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to

suspend the privilege of the writ of habeas corpus, subject to the revocation of Congress and
the review of this Court. Since the exercise of these powers is a judgment call of the President,
the determination of this Court as to whether there is sufficient factual basis for the exercise of
such, must be based only on facts or information known by or available to the President at the
time he made the declaration or suspension, which facts or information are found in the
proclamation as well as the written Report submitted by him to Congress. These may be based
on the situation existing at the time the declaration was made or past events. As to how far the
past events should be from the present depends on the President.

Past events may be considered as justifications for the declaration and/or suspension as long
as these are connected or related to the current situation existing at the time of the declaration.

As to what facts must be stated in the proclamation and the written Report is up to the
President.165 As Commander-in-Chief, he has sole discretion to determine what to include and
what not to include in the proclamation and the written Report taking into account the urgency of
the situation as well as national security. He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the operations and the safety of the military.
Similarly, events that happened after the issuance of the proclamation, which are included in the
written report, cannot be considered in determining the sufficiency of the factual basis of the
declaration of martial law and/or the suspension of the privilege of the writ of habeas
corpus since these happened after the President had already issued the proclamation. If at all,
they may be used only as tools, guides or reference in the Court's determination of the
sufficiency of factual basis, but not as part or component of the portfolio of the factual basis
itself.

In determining the sufficiency of the factual basis of the declaration and/or the suspension, the
Court should look into the full complement or totality of the factual basis, and not piecemeal or
individually. Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the urgency of the situation. To require
precision in the President's appreciation of facts would unduly burden him and therefore impede
the process of his decision-making. Such a requirement will practically necessitate the President
to be on the ground to confirm the correctness of the reports submitted to him within a period
that only the circumstances obtaining would be able to dictate. Such a scenario, of course,
would not only place the President in peril but would also defeat the very purpose of the grant of
emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio
in Fortun, to "immediately put an end to the root cause of the emergency".166 Possibly, by the
time the President is satisfied with the correctness of the facts in his possession, it would be too
late in the day as the invasion or rebellion could have already escalated to a level that is hard, if
not impossible, to curtail.

Besides, the framers of the 1987 Constitution considered intelligence reports of military officers
as credible evidence that the President ca appraise and to which he can anchor his
judgment,167 as appears to be the case here.

At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice
Presbitero J. Velasco Jr. in Fortun:

President Arroyo cannot be blamed for relying upon the information given to her by the Armed
Forces of the Philippines and the Philippine National Police, considering that the matter of the
supposed armed uprising was within their realm of competence, and that a state of emergency
has also been declared in Central Mindanao to prevent lawless violence similar to the
'Maguindanao massacre,' which may be an indication that there is a threat to the public safety
warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or
suspending the writ of habeas corpus. The Constitution, as couched, does not require precision
in establishing the fact of rebellion. The President is called to act as public safety requires.168

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim
martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the
Court's review, if subsequent events prove that the situation had not been accurately reported to
him.

After all, the Court's review is confined to the sufficiency, not accuracy, of the information at
hand during the declaration or suspension; subsequent events do not have any bearing insofar
as the Court's review is concerned. In any event, safeguards under Section 18, Article VII of the
Constitution are in place to cover such a situation, e.g., the martial law period is good only for
60 days; Congress may choose to revoke it even immediately after the proclamation is made;
and, this Court may investigate the factual background of the declaration.169

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of
and/or inaccuracies in some of the facts stated in the proclamation and the written report are not
enough reasons for the Court to invalidate the declaration and/or suspension as long as there
are other facts in the proclamation and the written Report that support the conclusion that there
is an actual invasion or rebellion and that public safety requires the declaration and/or
suspension.

In sum, the Court's power to review is limited to the determination of whether the President in
declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient
factual basis. Thus, our review would be limited to an examination on whether the President
acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to
and at the time of the declaration or suspension are sufficient for him to declare martial law or
suspend the privilege of the writ of habeas corpus.

VIII. The parameters for determining the

sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.

a) Actual invasion or rebellion,

and public safety requirement.

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual
basis for the declaration of martial law and/or the suspension of the privilege of the writ
of habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the
exercise of such power."170 Without the concurrence of the two conditions, the President's
declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must
be struck down.

As a general rule, a word used in a statute which has a technical or legal meaning, is construed
to have the same technical or legal meaning.171 Since the Constitution did not define the term
"rebellion," it must be understood to have the same meaning as the crime of "rebellion" in the
Revised Penal Code (RPC).172

During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then
Commissioner Florenz D. Regalado alluded to actual rebellion as one defined under Article 134
of the RPC:

MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer
imminent rebellion. Does the Committee mean that there should be actual shooting or actual
attack on the legislature or Malacañang, for example? Let us take for example a contemporary
event - this Manila Hotel incident, everybody knows what happened. Would the Committee
consider that an actual act of rebellion?

MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the
Revised Penal Code, that presupposes an actual assemblage of men in an armed public
uprising for the purposes mentioned in Article 134 and by the means employed under Article
135. x x x173

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under
Article 134 of the RPC. To give it a different definition would not only create confusion but would
also give the President wide latitude of discretion, which may be abused - a situation that the
Constitution see k s to prevent.174

Article 134 of the RPC states:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is

committed by rising publicly and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the Philippine
Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a)
public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising
or movement is either (a) to remove from the allegiance to the Government or its laws: (i) the
territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives."175

b) Probable cause is the

allowable standard of proof for the
President.

In determining the existence of rebellion, the President only needs to convince himself that there
is probable cause or evidence showing that more likely than not a rebellion was committed or is
being committed.176 To require him to satisfy a higher standard of proof would restrict the
exercise of his emergency powers. Along this line, Justice Carpio, in his Dissent in Fortun v.
President Macapagal-Arroyo, concluded that the President needs only to satisfy probable cause
as the standard of proof in determining the existence of either invasion or rebellion for purposes
of declaring martial law, and that probable cause is the most reasonable, most practical and
most expedient standard by which the President can fully ascertain the existence or non-
existence of rebellion necessary for a declaration of martial law or suspension of the writ. This is
because unlike other standards of proof, which, in order to be met, would require much from the
President and therefore unduly restrain his exercise of emergency powers, the requirement of
probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts
and circumstances without resorting to the calibration of the rules of evidence of which he has
no technical knowledge. He [merely] relies on common sense [and] x x x needs only to rest on
evidence showing that, more likely than not, a crime has been committed x x x by the
accused."177

To summarize, the parameters for determining the sufficiency of factual basis are as follows: l)
actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur;
and 3) there is probable cause for the President to believe that there is actual rebellion or
invasion.
Having laid down the parameters for review, the Court shall nowproceed to the core of the
controversy - whether Proclamation No. 216,Declaring a State of Martial Law and Suspending
the Privilege of the Writ of Habeas Corpus in the whole of Mindanao, lacks sufficient factual
basis.

IX. There is sufficient factual basis for the

declaration of martial law and the suspension of
the writ of habeas corpus.

At this juncture, it bears to emphasize that the purpose of judicial review is not the determination
of accuracy or veracity of the facts upon which the President anchored his declaration of martial
law or suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency of the
factual basis as to convince the President that there is probable cause that rebellion exists. It
must also be reiterated that martial law is a matter ofurgency and much leeway and flexibility
should be accorded the President. As such, he is not expected to completely validate all the
information he received before declaring martial law or suspending the privilege of the writ
of habeas corpus.

We restate the elements of rebellion for reference:

1. That there be (a) public uprising, and (b) taking up arms against the Government; and

2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to
said Government or its laws the territory of the Philippines or any part thereof, or any body of
land, naval or other armed forces or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers or prerogatives.178

Petitioners concede that there is an armed public uprising in Marawi City.179 However, they insist
that the armed hostilities do not constitute rebellion in the absence of the element of culpable
political purpose, i.e., the removal from the allegiance to the Philippine Government or its laws:
(i) the territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of
their powers and prerogatives.

The contention lacks merit.

a) Facts, events and

information upon which the President
anchored his decision to declare
martial law and suspend the privilege
of the writ of habeas corpus.

Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00
PM,180 the Court will consider only those facts and/or events which were known to or have
transpired on or before that time, consistent with the scope of judicial review. Thus, the following
facts and/or events were deemed to have been considered by the President in issuing
Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself:

1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency

on account of lawless violence in Mindanao;181
2. Series of violent acts182 committed by the Maute terrorist group including:

a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing
and wounding several soldiers;

b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the
Maute Group and other detainees;

3. On May 23, 2017:183

a) Takeover of a hospital in Marawi;

b) Establishment of several checkpoints within Marawi;

c) Burning of certain government and private facilities;

d) Mounting casualties on the part of the government;

e) Hoisting the flag of ISIS in several areas; and

f) Capability of the Maute Group and other rebel groups to sow terror, and cause death and
damage to property not only in Lanao del Sur but also in other parts of Mindanao; and the
Report184 submitted to Congress:

1. Zamboanga siege;185

2. Davao bombing;186

3. Mamasapano carnage;187

4. Cotabato bombings;188

5. Sultan Kudarat bombings;189

6. Sulu bombings;190

7. Basilan bombings;191

8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG
and the Maute Group;192

9. Escalation of armed hostility against the government troops;193

10. Acts of violence directed not only against government authorities and establishments but
civilians as well;194

11. Takeover of major social, economic and political foundations which paralyzed Marawi
City;195
12. The object of the armed hostilities was to lay the groundwork for the establishment of a
DAESH/ISIS wilayat or province;196

13. Maute Group has 263 active members, armed and combat-ready;197

14. Extensive networks or linkages of the Maute Group with foreign and local armed groups;198

15. Adherence of the Maute Group to the ideals espoused by ISIS;199

16. Publication of a video showing Maute Group's declaration of allegiance to ISIS;200

17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group;201

18. Events on May 23, 2017 in Marawi City, particularly:

a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various
government and privately-owned facilities;202

b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated
the escape of inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel
and/or locked them inside the cells; confiscated cellphones, personnel-issued firearms, and
vehicles;203

c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power outage by
evening;204

d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station;
commandeered a police car;205

e) BJMP personnel evacuated the Marawi City Jail and other affected areas;206

f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was taken
by the rebels;207

g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi
junction;208

h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters
in the church, and the Shia Masjid Moncado Colony;209

i) taking of hostages from the church;210

j) killing of five faculty members of Dansalan College foundation;211

k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot
School;212

1) overrunning of Amai Pakpak Hospital;213

m) hoisting the ISIS flag in several areas;214

n) attacking and burning of the Filipino-Libyan Friendship Hospital;215

o) ransacking of a branch of Landbank of the Philippines and commandeering an armored

vehicle;216

p) reports regarding Maute Group's plan to execute Christians;217

q) preventing Maranaos from leaving their homes;218

r) forcing young Muslims to join their group;219 and

s) intelligence reports regarding the existence of strategic mass action of lawless armed groups
in Marawi City, seizing public and private facilities, perpetrating killings of government
personnel1 , and committing armed uprising against and open defiance of the Government.220

b) The President's Conclusion

After the assessment by the President of the aforementioned facts, he arrived at the following
conclusions, as mentioned in Proclamation No. 216 and the Report:

1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine
Government this part of Mindanao and deprive the Chief Executive of his powers and
prerogatives to enforce the laws of the land and to maintain public order and safety in
Mindanao, constituting the crime of rebellion."221

2) "[L]awless armed groups have taken up arms and committed public uprising against the duly
constituted government and against the people of Mindanao, for the purpose of removing
Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the
Government and its laws and depriving the Chief Executive of his powers and prerogatives to
enforce the laws of the land and to maintain public order and safety in Mindanao, to the great
damage, prejudice, and detriment of the people therein and the nation as a whole."222

3) The May 23, 2017 events "put on public display the groups' clear intention to establish an
Islamic State and their capability to deprive the duly constituted authorities - the President,
foremost - of their powers and prerogatives. "223

4) "These activities constitute not simply a display of force, but a clear attempt to establish the
groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or
province covering the entire Mindanao."224

5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to
further expand their ranks and strengthen their force; the armed consolidation of their members
throughout Marawi City; the decimation of a segment of the city population who resist; and the
brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to
remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government."225
6) "There exists no doubt that lawless armed groups are attempting to deprive the President of
his power, authority, and prerogatives within Marawi City as a precedent to spreading their
control over the entire Mindanao, in an attempt to undermine his control over executive
departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are
faithfully executed; and remove his supervisory powers over local governments."226

7) "Law enforcement and other government agencies now face pronounced difficulty sending
their reports to the Chief Executive due to the city-wide power outages. Personnel from the
BJMP have been prevented from performing their functions. Through the attack and occupation
of several hospitals, medical services in Marawi City have been adversely affected. The bridge
and road blockades set up by the groups effectively deprive the government of its ability to
deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the
government from restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered."227

8) "The taking up of arms by lawless armed groups in the area, with support being provided by
foreign-based terrorists and illegal drug money, and their blatant acts of defiance which
embolden other armed groups in Mindanao, have resulted in the deterioration of public order
and safety in Marawi City; they have likewise compromised the security of the entire Island of
Mindanao."228

9) "Considering the network and alliance-building activities among terrorist groups, local
criminals, and lawless armed men, the siege f Marawi City is a vital cog in attaining their long-
standing goal: absolute control over the entirety of Mindanao. These circumstances demand
swift and decisive action to ensure the safety and security of the Filipino people and preserve
our national integrity."229

Thus, the President deduced from the facts available to him that there was an armed public
uprising, the culpable purpose of which was to remove from the allegiance to the Philippine
Government a portion of its territory and to deprive the Chief Executive of any of his powers and
prerogatives, leading the President to believe that there was probable cause that the crime of
rebellion was and is being committed and that public safety requires the imposition of martial
law and suspension of the privilege of the writ of habeas corpus.

A review of the aforesaid facts similarly leads the Court to conclude that the President, in
issuing Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion
exists. The President's conclusion, that there was an armed public uprising, the culpable
purpose of which was the removal from the allegiance of the Philippine Government a portion of
its territory and the deprivation of the President from performing his powers and prerogatives,
was reached after a tactical consideration of the facts. In fine, the President satisfactorily
discharged his burden of proof.

After all, what the President needs to satisfy is only the standard of probable cause for a valid
declaration of martial law and suspension of the privilege of the writ of habeas corpus. As
Justice Carpio decreed in his Dissent in Fortun:

x x x [T]he Constitution does not compel the President to produce such amount of proof as to
unduly burden and effectively incapacitate her from exercising such powers.
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard
of proof required for convicting an accused charged with a criminal offense.x x x

xxxx

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the
President to establish the existence of rebellion or invasion with such amount of proof before
declaring martial law or suspending the writ amounts to an excessive restriction on 'the
President's power to act as to practically tie her hands and disable her from effectively
protecting the nation against threats to public safety.'

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is
indispensable for a lawful declaration of martial law or suspension of the writ. This amount of
proof likewise unduly restrains the President in exercising her emergency powers, as it requires
proof greater than preponderance of evidence although not beyond reasonable doubt.

Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is
demanded for a lawful declaration of martial law.

xxxx

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she
can act and impose martial law or suspend the writ unreasonably curtails the President's
emergency powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of

her emergency powers. Substantial evidence is the amount of proof required in administrative or
quasi-judicial cases, or that amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion.

I am of the view that probable cause of the existence of either invasion or rebellion suffices and
satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by
the prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been
defined as a 'set of facts and circumstances as would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information or any offense included therein has
been committed by the person sought to be arrested.'

In determining probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He
relies on common sense. A finding of probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than suspicion; it requires less than evidence that
would justify conviction.

Probable cause, basically premised on common sense, is the most reasonable, most practical,
and most expedient standard by which the President can fully ascertain the existence or non-
existence of rebellion, necessary for a declaration of martial law x x x230
c) Inaccuracies, simulations,
falsities, and hyperboles.

The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the
Report are false, inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned,
the Court is not concerned about absolute correctness, accuracy, or precision of the facts
because to do so would unduly tie the hands of the President in responding to an urgent
situation.

Specifically, it alleges that the following facts are not true as shown by its counter-evidence.231

FACTUAL STATEMENTS COUNTER-EVIDENCE

(1) that the Maute group attacked Amai Statements made by:
Pakpak Hospital and hoisted the DAESH (a) Dr. Amer Saber, Chief of the Hospital
flag there, among several locations. As of (b) Health Secretary Paulyn Ubial;
0600H of 24 May 2017, members of the (c) PNP Spokesperson Senior Supt.
Maute Group were seen guarding the entry Dionardo Carlos;
gates of the Amai Pakpak Hospital and that (d) AFP Public Affairs Office Chief Co.
they held hostage the employees of the Edgard Arevalo; and
Hospital and took over the PhilHealth office (e) Marawi City Mayor Majul Gandamra
located thereat (Proclamation No. 216 and denying that the hospital was attacked by
Report); the Maute Group citing online news articles
of Philstar, Sunstar, Inquirer, and Bombo
Radyo.232
2. that the Maute Group ambushed and Statements made by PNP Director General
burned the Marawi Police Station Ronald dela Rosa and Marawi City Mayor
(Proclamation No. 216 and the Report); Majul Gandamra in the online news reports
of ABS-CBN News and CNN
Philippines233 denying that the Maute group
occupied the Marawi Police Station.
3. that lawless armed groups likewise Statement made by the bank officials in the
ransacked the Landbank of the Philippines on-line news article of Philstar234 that the
and commandeered one of its armored Marawi City branch was not ransacked but
vehicles (Report); sustained damages from the attacks.
4. that the Marawi Central Elementary Pilot Statements in the on-line news article of
School was burned (Proclamation No. 216 Philstar235 made by the Marawi City Schools
and the Report); Division Assistant Superintendent Ana
Alonto denying that the school was burned
and Department of Education Assistant
Secretary Tonisito Umali stating that they
have not received any report of damage.
5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. 216 Inquirer236 made by Marawi City Mayor Majul
and the Report). Gandamra stating that the ASG and the
Maute Terror Groups have not taken over
any government facility in Marawi City.
However, the so-called counter-evidence were derived solely from unverified news articles on
the internet, with neither the authors nor the sources shown to have affirmed the contents
thereof It was not even shown that efforts were made to secure such affirmation albeit the
circumstances proved futile. As the Court has consistently ruled, news articles are hearsay
evidence, twice removed, and are thus without any probative value, unless offered for a purpose
other than proving the truth of the matter asserted.237 This pronouncement applies with equal
force to the Cullamat Petition which likewise submitted online news articles238 as basis for their
claim of insufficiency of factual basis.

Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in
these cases. As long as there are other facts in the proclamation and the written Report
indubitably showing the presence of an actual invasion or rebellion and that public safety
requires the declaration and/or suspension, the finding of sufficiency of factual basis, stands.

d) Ruling in Bedol v.
Commission on Elections not
Applicable.

Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be

admitted on grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this
case is misplaced. The Court in Bedol made it clear that the doctrine of independent relevant
statement, which is an ·exception to the hearsay rule, applies in cases "where only the fact that
such statements were made is relevant, and the truth or falsity thereof is immaterial."240 Here,
the question is not whether such statements were made by Saber, et. al., but rather whether
what they said are true. Thus, contrary to the view of petitioners, the exception in Bedol finds no
application here.

e) There are other independent

facts which support the finding that,
more likely than not, rebellion exists
and that public safety requires it.

Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the
Report; along with these alleged false data is an arsenal of other independent facts showing
that more likely than not, actua1 rebellion exists, and public safety requires the declaration of
martial law or suspension of the privilege of the writ of habeas corpus. To be precise, the
alleged false and/or inaccurate statements are only five out of the severa1 statements bulleted
in the President's Report. Notably, in the interpellation by Justice Francis H. Jardeleza during
the second day of the oral argument, petitioner Lagman admitted that he was not aware or that
he had no personal knowledge of the other incidents cited.241 As it thus stands, there is no
question or challenge with respect to the reliability of the other incidents, which by themselves
are ample to preclude the conclusion that the President's report is unreliable and that
Proclamation No. 216 was without sufficient factual basis.

Verily, there is no credence to petitioners' claim that the bases for the President's imposition of
martial law and suspension of the writ of habeas corpus were mostly inaccurate, simulated,
false and/or hyperbolic.

X. Public safety requires the declaration of

martial law and the suspension of the privilege of
the writ of habeas corpus in the whole of
Mindanao.

Invasion or rebellion alone may justify resort to the calling out power but definitely not the
declaration of martial law or suspension of the privilege of the writ of habeas corpus. For a
declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid,
there must be a concurrence of actual rebellion or invasion and the public safety requirement. In
his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute
Group were directed not only against government forces or establishments but likewise against
civilians and their properties.242 In addition and in relation to the armed hostilities, bomb threats
were issued;243 road blockades and checkpoints were set up;244 schools and churches were
burned;245 civilian hostages were taken and killed;246 non-Muslims or Christians were
targeted;247 young male Muslims were forced to join their group;248 medical services and delivery
of basic services were hampered;249 reinforcements of government troops and civilian
movement were hindered;250 and the security of the entire Mindanao Island was
compromised.251

These particular scenarios convinced the President that the atrocities had already escalated to
a level that risked public safety and thus impelled him to declare martial law and suspend the
privilege of the writ of habeas corpus. In the last paragraph of his Report, the President
declared:

While the government is presently conducting legitimate operations to address the on-going
rebellion, if not the seeds of invasion, public safety necessitates the continued implementation
of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of
Mindanao until such time that the rebellion is completely quelled.252

Based on the foregoing, we hold that the parameters for the declaration of martial law and
suspension of the privilege of the writ f habeas corpus have been properly and fully complied
with. Proclamation No. 216 has sufficient factual basis there being probable cause to believe
that rebellion exists and that public safety requires the martial law declaration and the
suspension of the privilege of the writ of habeas corpus.

XI. Whole of Mindanao

a) The overriding and

paramount concern of martial law is
the protection of the security of the
nation and the good and safety of the
public.

Considering the nation's and its people's traumatic experience martial law under the Marcos
regime, one would expect the framers of the 1987 Constitution to stop at nothing
from not resuscitating the law. Yet it would appear that the constitutional writers
entertained no doubt about the necessity and practicality of such specie of extraordinary power
and thus, once again, bestowed on the Commander-in-Chief the power to declare martial law
albeit in its diluted form.

Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are
necessary for the protection of the security of the nation; suspension of the privilege of the writ
of habeas corpus is "precautionary , and although it might [curtail] certain rights of individuals,
[it] is for the purpose of defending and protecting the security of the state or the entire country
and our sovereign people".253 Commissioner Ople referred to the suspension of the privilege of
the writ of habeas corpus as a "form of immobilization" or "as a means of immobilizing potential
internal enemies" "especially in areas like Mindanao."254

Aside from protecting the security of the country, martial law also guarantees and promotes
public safety. It is worthy of mention that rebellion alone does not justify the declaration of
martial law or suspension of the privilege of the writ of habeas corpus; the public safety
requirement must likewise be present.

b) As Commander-in-Chief, the
President receives vital, relevant,
classified, and live information which
equip and assist him in making
decisions.

In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for
Proclamation No. 216. For the President, the totality of facts and events, more likely than not,
shows that actual rebellion exists and that public safety requires the declaration of martial law
and suspension of the privilege of the writ of habeas corpus. Otherwise stated, the President
believes that there is probable cause that actual rebellion exists and public safety warrants the
issuance of Proclamation No. 216. In turn, the Court notes that the President, in arriving at such
a conclusion, relied on the facts and events included in the Report, which we find sufficient.

To be sure, the facts mentioned in the Proclamation and the Report are far from being
exhaustive or all-encompassing. At this juncture, it may not be amiss to state that as
Commander-in-Chief, the President has possession of documents and information classified as
"confidential", the contents of which cannot be included in the Proclamation or Report for
reasons of national security. These documents may contain information detailing the position of
government troops and rebels, stock of firearms or ammunitions, ground commands and
operations, names of suspects and sympathizers, etc. , In fact, during the closed door session
held by the Court, some information came to light, although not mentioned in the Proclamation
or Report. But then again, the discretion whether to include the same in the Proclamation or
Report is the judgment call of the President. In fact, petitioners concede to this. During the oral
argument, petitioner Lagman admitted that "the assertion of facts [in the Proclamation and
Report] is the call of the President."255

It is beyond cavil that the President can rely on intelligence reports and classified documents. "It
is for the President as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified
evidence or documents/]reports and be satisfied that the public safety demands the suspension
of the writ."256 Significantly, respect to these so-called classified documents is accorded even
"when [the] authors of or witnesses to these documents may not be revealed."257

In fine, not only does the President have a wide array of information before him, he also has the
right, prerogative, and the means to access vital, relevant, and confidential data, concomitant
with his position as Commander-in-Chief of the Armed Forces.

c) The Court has no machinery

or tool equal to that of the
Commander-in-Chief to ably and
properly assess the ground
conditions.

In contrast, the Court does not have the same resources available to the President. However,
this should not be considered as a constitutiona1 lapse. On the contrary, this is in line with the
function of the Court, particularly in this instance, to determine the sufficiency of factual basis of
Proclamation No. 216. As thoroughly discussed in Part VIII, the determination by the Court of
the sufficiency of factual basis must be limited only to the facts and information mentioned in the
Report and Proclamation. In fact, the Court, in David v. President Macapagal-
Arroyo,258 cautioned not to "undertake an independent investigation beyond the pleadings." In
this regard, "the Court will have to rely on the fact-finding capabilities of the [E]xecutive
[D]epartment;"259 in turn, the Executive Department will have to open its findings to the
Court,260 which it did during the closed door session last June 15, 2017.

d) The 1987 Constitution

grants to the President, as
Commander-in-Chief, the discretion
to determine the territorial coverage
or application of martial law or
suspension of the privilege of the writ
of habeas corpus.

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the
public safety requires it, [the President] may x x x suspend the privilege of writ of habeas
corpus or place the Philippines or any part thereof under martial law." Clearly, the
Constitution grants to the President the discretion to determine the territorial coverage of martial
law and the suspension of the privilege of the writ of habeas corpus. He may put the entire
Philippines or only a part thereof under martial law.

This is both an acknowledgement and a recognition that it is the Executive Department,

particularly the President as Commander-in-Chief, who is the repository of vital, classified, and
live information necessary for and relevant in calibrating the territorial application of martial law
and the suspension of the privilege of the writ of habeas corpus. It, too, is a concession that the
President has the tactical and military support, and thus has a more informed understanding of
what is happening on the ground. Thus, the Constitution imposed a limitation on the period of
application, which is 60 days, unless sooner nullified, revoked or extended, but not on the
territorial scope or area of coverage; it merely stated "the Philippines or any part thereof,"
depending on the assessment of the President.

e) The Constitution has

provided sufficient safeguards against
possible abuses of Commander-in-
Chief's powers; further curtailment of
Presidential powers should not only
be discouraged but also avoided.

Considering the country's history, it is understandable that the resurgence of martial law would
engender apprehensions among the citizenry. Even the Court as an institution cannot project a
stance of nonchalance. However, the importance of martial law in the context of our society
should outweigh one's prejudices and apprehensions against it. The significance of martial law
should not be undermined by unjustified fears and past experience. After all, martial law is
critical and crucial to the promotion of public safety, the preservation of the nation's sovereignty
and ultimately, the survival of our country. It is vital for the protection of the country not only
against internal enemies but also against those enemies lurking from beyond our shores. As
such, martial law should not be cast aside, or its scope and potency limited and diluted, based
on bias and unsubstantiated assumptions.

Conscious of these fears and apprehensions, the Constitution placed several safeguards which
effectively watered down the power to declare martial law. The 1987 Constitution "[clipped] the
powers of [the] Commander-in-Chief because of [the] experience with the previous
regime."261 Not only were the grounds limited to actual invasion or rebellion, but its duration was
likewise fixed at 60 days, unless sooner revoked, nullified, or extended; at the same time, it is
subject to the veto powers of the Court and Congress.

Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted
his colleagues in the Constitutional Convention to look at martial law from a new perspective by
elaborating on the sufficiency of the proposed safeguards:

MR. MONSOD. x x x

Second, we have been given a spectre of non sequitur, that the mere declaration of martial law
for a fixed period not exceeding 60 days, which is subject to judicial review, is going to result in
numerous violations of human rights, the predominance of the military forever and in untold
sufferings. Madam President, we are talking about invasion and rebellion. We may not have any
freedom to speak of after 60 days, if we put as a precondition the concurrence of Congress.
That might prevent the President from acting at that time in order to meet the problem. So I
would like to suggest that, perhaps, we should look at this in its proper perspective. We are only
looking at a very specific case. We are only looking at a case of the first 60 days at its
maximum. And we are looking at actual invasion and rebellion, and there are other safeguards
in those cases.262

Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against
presidential abuses and commission of human rights violations. In voting yes for the elimination
of the requirement of prior concurrence of Congress, Bishop Bacani stated, viz.:

BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern
for human rights, I believe that a good President can also safeguard human rights and human
lives as well. And I do not want to unduly emasculate the powers of the President. Xxx263

Commissioner Delos Reyes shared the same sentiment, to wit:

MR. DE LOS REYES. May I explain my vote, Madam President.

x x x The power of the President to impose martial law is doubtless of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power, and the power to
impose martial law is certainly felt to be one of no ordinary magnitude. But as presented by the
Committee, there are many safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3)
the Supreme Court can still review as to the sufficiency of factual basis; and 4) it does not
suspend the operation of the Constitution. To repeat what I have quoted when I interpellated
Commissioner Monsod, it is said that the power to impose martial law is dangerous to liberty
and may be abused. All powers may be abused if placed in unworthy hands. But it would be
difficult, we think, to point out any other hands in which this power will be more safe and at the
same time equally effectual. When citizens of the State are in arms against each other and the
constituted authorities are unable to execute the laws, the action of the President must be
prompt or it is of little value. x x x264 (Emphasis supplied)

At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987
Constitution that sufficient safeguards against possible misuse and abuse by the Commander-
in-Chief of his extraordinary powers are already in place and that no further emasculation of the
presidential powers is called for in the guise of additional safeguards. The Constitution
recognizes that any further curtailment, encumbrance, or emasculation of the presidential
powers would not generate any good among the three co-equal branches, and to the country
and its citizens as a whole. Thus:

MR. OPLE. The reason for my concern, Madam President, is that when we put all of these
encumbrances on the President and Commander-in-Chief during an actual invasion or rebellion,
given an intractable Congress that may be dominated by opposition parties, we may be actually
impelling the President to use the sword of Alexander to cut the Gordian knot by just declaring a
revolutionary government that sets him free to deal with the invasion or the insurrection. x x
x265 (Emphasis supplied)

f) Rebellion and public safety;

nature, scope, and range.

It has been said that the "gravamen of the crime of rebellion is an armed public uprising against
the government;"266 and that by nature, "rebellion is x x x a crime of masses or multitudes,
involving crowd action, that cannot be confined a priori, within predetermined bounds."267 We
understand this to mean that the precise extent or range of the rebellion could not be measured
by exact metes and bounds.

To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre

Faura, Ermita, Manila where the Court's compound is situated. They overpowered the guards,
entered the Court's premises, and hoisted the ISIS flag. Their motive was political, i.e., they
want to remove from the allegiance to the Philippine government a part of the territory of the
Philippines, particularly the Court's compound and establish it as an ISIS-territory.

Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we
validly say that the rebellion is confined only within the Court's compound? Definitely not. The
possibility that there are other rebels positioned in the nearby buildings or compound of the
Philippine General Hospital (PGH) or the Manila Science High Schoo1 (MSHS) could not be
discounted. There is no way of knowing that all participants in the rebellion went and stayed
inside the Court's compound.

Neither could it be validly argued that the armed contingent positioned in PGH or MSHS
is not engaged in rebellion because there is no publicity in their acts as, in fact, they were
merely lurking inside the compound of PGH and MSHS. However, it must be pointed out that for
the crime of rebellion to be consummated, it is not required that all armed participants should
congregate in one place, in this case, the Court's compound, and publicly rise in arms against
the government for the attainment of their culpable purpose. It suffices that a portion of the
contingent gathered and formed a mass or a crowd and engaged in an armed public uprising
against the government. Similarly, it cannot be validly concluded that the grounds on which the
armed public uprising actually to6k place should be the measure of the extent, scope or range,
of the actual I rebellion. This is logical since the other rebels positioned in PGH, MSHS, I or
elsewhere, whose participation did not involve the publicity aspect of rebellion, may also be
considered as engaging in the crime of rebellion.

Proceeding from the same illustration, suppose we say that the President, after finding probable
cause that there exists actual rebellion and that public safety requires it, declares martial law
and suspends the writ of habeas corpus in the whole of Metro Manila, could we then say that
the territorial coverage of the proclamation is too expansive?

To answer this question, we revert back to the premise that the discretion to determine the
territorial scope of martial law lies with the President. The Constitution grants him the
prerogative whether to put the entire Philippines or any part thereof under martial law. There is
no constitutional edict that martial law should be confined only in the particular place where the
armed public uprising actually transpired. This is not only practical but also logical. Martial law is
an urgent measure since at stake is the nation's territorial sovereignty and survival. As such, the
President has to respond quickly. After the rebellion in the Court's compound, he need not wait
for another rebellion to be mounted in Quezon City before he could impose martial law thereat.
If that is the case, then the President would have to wait until every remote corner in the country
is infested with rebels before he could declare martial law in the entire Philippines. For sure, this
is not the scenario envisioned by the Constitution.

Going back to the illustration above, although the President is not required to impose martial law
only within the Court's compound because it is where the armed public uprising actually
transpired, he may do so if he sees fit. At the same time, however, he is not precluded from
expanding the coverage of martial law beyond the Court's compound. After all, rebellion is not
confined within predetermined bounds.

Public safety, which is another component element for the declaration of martial law, "involves
the prevention of and protection from events that could endanger the safety of the general
public from significant danger, injury/harm, or damage, such as crimes or disasters."268 Public
safety is an abstract term; it does not take any physical form. Plainly, its range, extent or scope
could not be physically measured by metes and bounds.

Perhaps another reason why the territorial scope of martial law should not necessarily be limited
to the particular vicinity where the armed public uprising actually transpired, is because of the
unique characteristic of rebellion as a crime. "The crime of rebellion consists of many acts. It is
a vast movement of men and a complex net of intrigues and plots. Acts committed in
furtherance of rebellion[,] though crimes in themselves[,] are deemed absorbed in one single
crime of rebellion."269 Rebellion absorbs "other acts committed in its pursuance".270 Direct
assault,271 murder,272 homicide,273 arson,274 robbery,275 and kidnapping,276 just to name a few, are
absorbed in the crime of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a
basis of a separate charge."277 Jurisprudence also teaches that not only common crimes may be
absorbed in rebellion but also "offenses under special laws [such as Presidential Decree No.
1829]278 which are perpetrated in furtherance of the political offense".279 "All crimes, whether
punishable under a special law or general law, which are me e components or ingredients, or
committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be
isolated and charged as separate crimes in themselves.280
Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in
furtherance of the crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila,
is stripped of its common complexion and is absorbed in the crime of rebellion. This all the more
makes it difficult to confine the application of martial law only to the place where the armed
public uprising is actually taking place. In the illustration above, Padre Faura could only be the
nerve center of the rebellion but at the same time rebellion is also happening in Makati City.

In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct
proportion to the "range" of actual rebellion and public safety simply because rebellion and
public safety have no fixed physical dimensions. Their transitory and abstract nature defies
precise measurements; hence, the determination of the territorial scope of martial law could only
be drawn from arbitrary, not fixed, variables. The Constitution must have considered these
limitations when it granted the President wide leeway and flexibility in determining the territorial
scope of martial law.

Moreover, the President's duty to maintain peace and public safety is not limited only to the
place where there is actual rebellion; it extends to other areas where the present hostilities are
in danger of spilling over. It is not intended merely to prevent the escape of lawless elements
from Marawi City, but also to avoid enemy reinforcements and to cut their supply lines coming
from different parts of Mindanao. Thus, limiting the proclamation and/or suspension to the place
where there is actual rebellion would not only defeat the purpose of declaring martial law, it will
make the exercise thereof ineffective and useless.

g) The Court must stay within

the confines of its power.

The Court can only act within the confines of its power.1âwphi1 For the Court to overreach is to
infringe upon another's territory. Clearly, the power to determine the scope of territorial
application belongs to the President. "The Court cannot indulge in judicial legislation without
violating the principle of separation of powers, and, hence, undermining the foundation of our
republican system."281

To reiterate, the Court is not equipped with the competence and logistical machinery to
determine the strategical value of other places in the military's efforts to quell the rebellion and
restore peace. It would be engaging in an act of adventurism if it dares to embark on a mission
of deciphering the territorial metes and bounds of martial law. To be blunt about it, hours after
the proclamation of martial law none of the members of this Court could have divined that more
than ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and that the
military would have to secure those places also; none of us could have predicted that Cayamora
Maute would be arrested in Davao City or that his wife Ominta Romato Maute would be
apprehended in Masiu, Lanao del Sur; and, none of us had an inkling that the Bangsamoro
Islamic Freedom Fighters (BIFF) would launch an attack in Cotabato City. The Court has no
military background and technical expertise to predict that. In the same manner, the Court lacks
the technical capability to determine which part of Mindanao would best serve as forward
operating base of the military in their present endeavor in Mindanao. Until now the Court is in a
quandary and can only speculate whether the 60-day lifespan of Proclamation No. 216 could
outlive the present hostilities in Mindanao. It is on this score that the Court should give the
President sufficient leeway to address the peace and order problem in Mindanao.
Thus, considering the current situation, it will not serve any purpose if the President is goaded
into using "the sword of Alexander to cut the Gordian knot"282 by attempting to impose another
encumbrance; after all "the declaration of martial law or the suspension of the privilege of the
writ of habeas corpus is essentially an executive act."283

Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give
the President a nudge, so to speak, as some sort of reminder of the nation's experience under
the Marcos-styled martial law. However, it is not fair to judge President Duterte based on the ills
some of us may have experienced during the Marcos-martial law era. At this point, the Court
quotes the insightful discourse of Commissioner Ople:

MR. OPLE. x x x

xxxx

Madam President, there is a tendency to equate patriotism with rendering the executive branch
of the government impotent, as though by reducing drastically the powers of the executive, we
are rendering a service to human welfare. I think it is also important to understand that the
extraordinary measures contemplated in the Article on the Executive pertain to a practical state
of war existing in this country when national security will become a common bond of patriotism
of all Filipinos, especially if it is an actual invasion or an actual rebellion, and the President may
have to be given a minimum flexibility to cope with such unprecedented threats to the survival of
a nation. I think the Commission has done so but at the same time has not, in any manner,
shunned the task of putting these powers under a whole system of checks and balances,
including the possible revocation at any time of a proclamation of martial law by the Congress,
and in any case a definite determination of these extraordinary powers, subject only to another
extension to be determined by Congress in the event that it is necessary to do so because the
emergency persists.

So, I think this Article on the Executive for which I voted is completely responsible; it is attuned
to the freedom and the rights of the citizenry. It does not render the presidency impotent and, at
the same time, it allows for a vigorous representation of the people through their Congress
when an emergency measure is in force and effect.284

h) Several local armed groups

have formed linkages aimed at
committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.

With a predominantly Muslim population, Marawi City is "the only Islamic City of the
South."285 On April 15, 1980, it was conferred the official title of "Islamic City of Marawi."286 The
city's first name, "Dansalan," "was derived from the word 'dansal', meaning a destination point
or rendezvous. Literally, it also means arrival or coming."287 Marawi lies in the heart of
Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in Marawi City thereby
making Marawi City the point of reference of all roads in Mindanao.

Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion,
both for symbolic and strategic reasons. Marawi may not be the target but the whole of
Mindanao. As mentioned in the Report, "[l]awless armed groups have historically used
provinces adjoining Marawi City as escape routes, supply lines, and backdoor
passages;"288 there is also the plan to establish a wilayat in Mindanao by staging the siege of
Marawi. The report that prior to May 23, 2017, Abdullah Maute had already dispatched some of
his men to various places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for
bombing operations, carnapping, and the murder of military and police personnel,289 must also
be considered. Indeed, there is some semblance of truth to the contention that Marawi is only
the start, and Mindanao the end.

Other events also show that the atrocities were not concentrated in Marawi City. Consider
these:

a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo
Uno, Lamita City, Basilan. A civilian was killed while another was wounded.290

b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island,
Taganak, Tawi-Tawi.291

c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan
resulting in the death of two children and the wounding of three others.292

d. From March to May 2017, there were eleven (11) separate instances of IED explosions by
the BIFF in Mindanao. These resulted in the death and wounding of several personalities.293

e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu.294

f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and
government troops.295

g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde.296

h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later.297

There were also intelligence reports from the military about offensives committed by the ASG
and other local rebel groups. All these suggest that the rebellion in Marawi has already spilled
over to other parts of Mindanao.

Moreover, considering the widespread atrocities in Mindanao and the linkages established
among rebel groups, the armed uprising that was initially staged in Marawi cannot be justified as
confined only to Marawi. The Court therefore will not simply disregard the events that happened
during the Davao City bombing, the Mamasapano massacre, the Zamboanga City siege, and
the countless bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others.298 The
Court cannot simply take the battle of Marawi in isolation. As a crime without predetermined
bounds, the President has reasonable basis to believe that the declaration of martial law, as
well as the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, is
most necessary, effective, and called for by the circumstances.

i) Terrorism neither negates

nor absorbs rebellion.
It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While
some groups have sought legal and peaceful means, others have resorted to violent extremism
and terrorism. Rebellion may be subsumed under the crime of terrorism, which has a broader
scope covering a wide range of predicate crimes. In fact, rebellion is only one of the various
means by which terrorism can be committed.299 However, while the scope of terrorism may be
comprehensive, its purpose is distinct and well-defined. The objective of a "'terrorist" is to sow
and create a condition of widespread fear among the populace in order to coerce the
government to give in to an unlawful demand. This condition of widespread fear is traditionally
achieved through bombing, kidnapping, mass killing, and beheading, among others. In contrast,
the purpose of rebellion, as previously discussed, is political, i.e., (a) to remove from the
allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part
thereof; (ii) any body of land, naval, or armed forces; or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers and prerogatives.

In determining what crime was committed, we have to look into the main objective of the
malefactors. If it is political, such as for the purpose of severing the allegiance of Mindanao to
the Philippine Government to establish a wilayat therein, the crime is rebellion. If, on the other
hand, the primary objective is to sow and create a condition of widespread and extraordinary
fear and panic among the populace in order to coerce the government to give in to an unlawful
demand, the crime is terrorism. Here, we have already explained and ruled that the President
did not err in believing that what is going on in Marawi City is one contemplated under the crime
of rebellion.

In any case, even assuming that the insurgency in Marawi City can also be characterized as
terrorism, the same will not in any manner affect Proclamation No. 216. Section 2 of Republic
Act (RA) No. 9372, otherwise known as the Human Security Act of 2007 expressly provides that
"[n]othing in this Act shall be interpreted as a curtailment, restriction or diminution of
constitutionally recognized powers of the executive branch of the government." Thus, as long as
the President complies with all the requirements of Section 18, Article VII, the existence of
terrorism cannot prevent him from exercising his extraordinary power of proclaiming martial ' law
or suspending the privilege of the writ of habeas corpus. After all, the extraordinary powers of
the President are bestowed on him by the Constitution. No act of Congress can, therefore,
curtail or diminish such powers.

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and
terrorism are mutuallty exclusive of each other or that they cannot co-exist together. RA 9372
does not expressly or impliedly repeal Art. 134 of the RPC. And while rebellion is one of the
predicate crimes of terrorism, one cannot absorb the other as they have different elements.300

Verily, the Court upholds the validity of the declaration of martial law and suspension of the
privilege of the writ of habeas corpus in the entire Mindanao region.

At the end of the day, however ardently and passionately we may believe in the validity or
correctness of the varied and contentious causes or principles that we espouse, advocate or
champion, let us not forget that at this point in time we, the Filipino people, are confronted with a
crisis of such magnitude and proportion that we all need to summon the spirit of unity and act as
one undivided nation, if we are to overcome and prevail in the struggle at hand.

Let us face up to the fact that the siege in Marawi City has entered the second month and only
God or Allah knows when it would end. Let us take notice of the fact that the casualties of the
war are mounting. To date, 418 have died. Out of that were 303 Maute rebels as against 71
government troops and 44 civilians.

Can we not sheathe our swords and pause for a while to bury our dead, including our
differences and prejudices?

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No.

216 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are
hereby DISMISSED.

SO ORDERED.