Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7708 May 30, 1955

JOSE MONDANO, petitioner,

vs.
FERNANDO SILVOSA, Provincial Governor of Surigao, JOSE ARREZA and OLIMPIO EPIS, Members of the
Provincial Board, respondents.

D. Avila and C. H. Lozada for petitioner.

Olimpio R. Epis in his own behalf and for his co-respondents.

PADILLA, J.:

The petitioner is the duly elected and qualified mayor of the municipality of Mainit, province of Surigao. On 27 February
1954 Consolacion Vda. de Mosende filed a sworn complaint with the Presidential Complaints and Action Committee
accusing him of (1) rape committed on her daughter Caridad Mosende; and (2) concubinage for cohabiting with her
daughter in a place other than the conjugal dwelling. On 6 March the Assistant Executive Secretary indorsed the
complaint to the respondent provincial governor for immediate investigation, appropriate action and report. On 10 April
the petitioner appeared before the provincial governor in obedience to his summons and was served with a copy of
the complaint filed by the provincial governor with provincial board. On the same day, the provincial governor issued
Administrative Order No. 8 suspending the petitioner from office. Thereafter, the Provincial Board proceeded to hear
the charges preferred against the petitioner over his objection.

The petitioner prays for a writ of prohibition with preliminary injunction to enjoin the respondents from further
proceeding with the hearing of the administrative case against him and for a declaration that the order of suspension
issued by the respondent provincial governor is illegal and without legal effect.

On 4 May 1954 the writ of preliminary injunction prayed for was issued after filing and approval of a bond for P500.

The answer of the respondents admits the facts alleged in the petition except those that are inferences and
conclusions of law and invokes the provisions of section 79 (c)of the Revised Administrative Code which clothes the
department head with "direct control, direction, and supervision over all bureaus and offices under his jurisdiction . .
." and to that end "may order the investigation of any act or conduct of any person in the service of any bureau or
office under his Department and in connection therewith may appoint a committee or designate an official or person
who shall conduct such investigations; . . ."and the rule in the case of Villena vs. Secretary of Interior, 67 Phil. 452,
which upheld "the power of the Secretary of Interior to conduct at its own initiative investigation of charges against
local elective municipal officials and to suspend them preventively," on the board proposition "that under the
presidential type of government which we have adopted and considering the departmental organization established
and continued in force by paragraph 1, section 11, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Departments, the heads of the various executive departments are
assistants and agents of the Chief Executive."

The executive departments of the Government of the Philippines created and organized before the approval of the
Constitution continued to exist as "authorized by law until the Congress shall provide otherwise." 1 Section 10,
paragraph 1, Article VII, of the Constitution provides: "The President shall have control of all the executive
departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law,
and take care that the laws be faithfully executed." Under this constitutional provision the President has been invested
with the power of control of all the executive departments, bureaus, or offices, but not of all local governments over
which he has been granted only the power of general supervision as may be provided by law. The Department head
as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction as
provided for in section 79 (c) of the Revised Administrative Code, but he does not have the same control of local
governments as that exercised by him over bureaus and offices under his jurisdiction. Likewise, his authority to order
the investigation of any act or conduct of any person in the service of any bureau or office under his department is
confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already
stated, the President exercises only general supervision as may be provided by law. If the provisions of section 79 (c)
of the Revised Administrative Code are to be construed as conferring upon the corresponding department head direct
control, direction, and supervision over all local governments and that for the reason he may order the investigation
of an official of a local government for malfeasance in office, such interpretation would be contrary to the provisions
of paragraph 1, section 10, Article VII, of the Constitution. If "general supervision over all local governments" is to be
construedas the same power granted to the Department Head in section 79 (c) of the Revised Administrative Code,
then there would no longer be a distinction or difference between the power of control and that of supervision. In
administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by
law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter. Such is the import of the provisions of section 79 (c) of the Revised Administrative
Code and 37 of Act No. 4007. The Congress has expressly and specifically lodged the provincial supervision over
municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under
oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office,
and conviction by final judgment of any crime involving moral turpitude."2 And if the charges are serious, "he shall
submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused
either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer)
pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in
question." 3 Section 86 of the Revised Administrative Code adds nothing to the power of supervision to be exercised
by the Department Head over the administration of . . . municipalities . . .. If it be construed that it does and such
additional power is the same authority as that vested in the Department Head by section 79 (c) of the Revised
Administrative Code, then such additional power must be deemed to have been abrogated by section 10 (1), Article
VII, of the Constitution.

In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held that the power of the President to remove officials from office
as provided for in section 64 (b) of the Revised Administrative Code must be done "conformably to law;" and only for
disloyalty to the Republic of the Philippines he "may at any time remove a person from any position of trust or authority
under the Government of the (Philippine Islands) Philippines." Again, this power of removal must be exercised
conformably to law.

In the indorsement to the provincial governor the Assistant Executive Secretary requested immediate investigation,
appropriate action and report on the complaint indorsed to him, and called his attention to section 2193 of the Revised
Administrative Code which provides for the institution of judicial proceedings by the provincial fiscal upon direction of
the provincial governor. If the indorsement of the Assistant Executive Secretary be taken as a designation of the
provincial governor to investigate the petitioner, then he would only be acting as agent of the Executive, but the
investigation to be conducted by him would not be that which is provided for in sections 2188, 2189 and 2190 of the
Revised Administrative Code. The charges preferred against the respondent are not malfeasances or any of those
enumerated or specified in section 2188 of the Revised Administrative Code, because rape and concubinage have
nothing to do with the performance of his duties as mayor nor do they constitute or involve" neglect of duty, oppression,
corruption or any other form of maladministration of office." True, they may involve moral turpitude, but before the
provincial governor and board may act and proceed in accordance with the provisions of the Revised Administrative
Code referred to, a conviction by final judgment must precede the filing by the provincial governor of charges and trial
by the provincial board. Even the provincial fiscal cannot file an information for rape without a sworn complaint of the
offended party who is 28 years of age and the crime of concubinage cannot be prosecuted but upon sworn complaint
of the offended spouse.4 The charges preferred against the petitioner, municipal mayor of Mainit, province of Surigao,
not being those or any of those specified in section 2188 of the Revised Administrative Code, the investigation of such
charges by the provincial board is unauthorized and illegal. The suspension of the petitioner as mayor of the
municipality of Mainit is, consequently, unlawful and without authority of law.

The writ of prohibition prayed for is granted, without pronouncement as to costs.

Pablo, Acting C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Reyes, J.B.L.,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 112497 August 4, 1994

HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner,

vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER ANTHONY ACEVEDO,
SANGGUNIANG PANGLUNSOD AND THE CITY OF MANILA, respondents.

The City Legal Officer for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).

Joseph Lopez for Sangguniang Panglunsod of Manila.

L.A. Maglaya for Petron Corporation.

CRUZ, J.:

The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public
Hearings. — The procedure for approval of local tax ordinances and revenue measures shall be in
accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the
purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or
legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from
the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from
the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of
suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge
levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of
the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may
file appropriate proceedings with a court of competent jurisdiction.

Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared
Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the
prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and
public policy.1

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary's
resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More
importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the
Secretary of Justice of the power of control over local governments in violation of the policy of local autonomy
mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only
the power of supervision over local governments.2

The present petition would have us reverse that decision. The Secretary argues that the annulled Section 187 is
constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local
Government Code had indeed not been observed.
Parenthetically, this petition was originally dismissed by the Court for non-compliance with Circular 1-88, the Solicitor
General having failed to submit a certified true copy of the challenged decision.3 However, on motion for
reconsideration with the required certified true copy of the decision attached, the petition was reinstated in view of the
importance of the issues raised therein.

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this
authority being embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts
jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation,4 even as the
accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with
violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article
X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders
of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the
consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of
separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments,
or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this
Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body
and with the concurrence of the majority of those who participated in its discussion.5

It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before
declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the
legislative departments and determined by them to be in accordance with the fundamental law before it was finally
approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing
that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required
majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be
struck down.

In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code unconstitutional
insofar as it empowered the Secretary of Justice to review tax ordinances and, inferentially, to annul them. He cited
the familiar distinction between control and supervision, the first being "the power of an officer to alter or modify or set
aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former
for the latter," while the second is "the power of a superior officer to see to it that lower officers perform their functions
in accordance with law."6 His conclusion was that the challenged section gave to the Secretary the power of control
and not of supervision only as vested by the Constitution in the President of the Philippines. This was, in his view, a
violation not only of Article X, specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of local
governments,8 and the policy of local autonomy in general.

We do not share that view. The lower court was rather hasty in invalidating the provision.

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and,
if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance,
he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the
measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of
what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment.
He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing
the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with
the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under
the Local Government Code. As we see it, that was an act not of control but of mere supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order
the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such
authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may
order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for
the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion
of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control
but of mere supervision.

The case of Taule v. Santos 9 cited in the decision has no application here because the jurisdiction claimed by the
Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the
Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as
follows:

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall
provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend
the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or
confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary
exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a
whole, for a period of thirty days within which period the local legislative body may either modify the
tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction;
otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as
revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time
as the grounds for the suspension thereof shall have ceased to exist.

That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or
fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise
of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law
had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned
before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is
permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his
opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon
set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions
and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not
the wisdom or reasonableness, of the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another
matter.

In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed
Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the
Local Government Code nor were copies of the proposed ordinance published in three successive issues of a
newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public
hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in
accordance with Sec. 511(a) of the Local Government Code. Finally, the Manila Revenue Code was not translated
into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec.
59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment
of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the
Secretary only because he had given it only five days within which to gather and present to him all the evidence
(consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation
to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the
procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties
as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits
B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25,
1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard
and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity,
considering that its publication in three successive issues of a newspaper of general circulation will satisfy due
process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this
requirement applies to the approval of local development plans and public investment programs of the local
government unit and not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not been raised in
issue in the present petition.

WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court
insofar as it declared Section 187 of the Local Government Code unconstitutional but AFFIRMING its finding that the
procedural requirements in the enactment of the Manila Revenue Code have been observed. No pronouncement as
to costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
 EN BANC

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,

vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,

vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.

----------------------------------------

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,

vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA,
and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,

vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE
PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
GENERAL LEANDRO MENDOZA, respondents.

RESOLUTION

MELO, J.:

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms,
bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang,
issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise
issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to
suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters
of the "rebellion" were thereafter effected.

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance
of legality to the arrests, the following four related petitions were filed before the Court –

(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the
issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray
B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the
suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ
of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No.
147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by
Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng
Demokratikong Pilipino.

All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the
warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on
May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila.
Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the
proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of
Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He
states that what is extant are general instructions to law enforcement officers and military agencies to implement
Proclamation No. 38. Indeed, as stated in respondents' Joint Comments:

[I]t is already the declared intention of the Justice Department and police authorities to obtain regular
warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means
that preliminary investigations will henceforth be conducted.

(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810,
p. 24)

With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion."

Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and
147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their
resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest
is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit
himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be
charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities
within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held
liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested
can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages
against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which
they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section
2 and 3, Rule 65, Rules of Court). 1âw phi 1.nêt

Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at
bar.

G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the
"appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and
proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature
considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime.
And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance
with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant.

As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio,
it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their
petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the
same must be made in proper proceedings initiated for that purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of
habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful
restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day.

G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters
relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is
sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the
time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not
shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have
categorically stated that petitioner will not be arrested without a warrant.

G.R. No. 147799

Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration
of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of
the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and
that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the
governmental powers.

We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he 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…" Thus, we held in Integrated Bar
of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):

x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts.
Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances,
the evidence upon which the President might decide that there is a need to call out the armed forces may be
of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or affecting the security of the state. In the exercise of
the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great
loss of human lives and mass destruction of property. x x x

(at pp.22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However,
this is no longer feasible at this time, Proclamation No. 38 having been lifted.

G.R. No. 147810

Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as
to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf
(KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself
which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be
threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened
with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party
whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to
freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said
proclamation is invalid for being contrary to the Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having
jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original
jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781,
and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their
agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners
therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001
siege of Malacañang.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur.

Vitug, separate opinion.

Kapunan, dissenting opinion.

Pardo, join the dissent of J. Kapunan.

Sandoval-Gutierrez, dissenting opinion.

Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

 EN BANC

G.R. No. 141284 August 15, 2000

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order
seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine National Police (the "PNP") in visibility
patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of
crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police
Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed the manner
by which the joint visibility patrols, called Task Force Tulungan, would be conducted.2 Task Force Tulungan was
placed under the leadership of the Police Chief of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. 3 In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro Manila through a more effective
crime prevention program including increased police patrols.4 The President further stated that to heighten police
visibility in the metropolis, augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-Chief
under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.6 Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation
shall have improved.7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in
the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to
national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized
syndicates whose members include active and former police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.
4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes
especially those perpetrated by organized crime syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and
the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state
against insurgents and other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated
by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work
cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for
the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force "TULUNGAN" shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.

xxx.8

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to annul LOI 02/2000
and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION,
IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY

REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN

FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5
(4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO

PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING

THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION. 10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law
and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP
in law enforcement.

Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000, required the Solicitor
General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines,
contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police
visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate
the civilian supremacy clause in the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the
President’s factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the
petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction
nor did he commit a violation of the civilian supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the
following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.12

The IBP has not sufficiently complied with the requisites of standing in this case.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.13 The term
"interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest.14 The gist of the question of standing is whether a party alleges
"such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional questions."15

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. 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. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest
in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the National President of the
IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action.
To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the
IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols.
Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed "militarization" of law enforcement
which might threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only
is the presumed "injury" not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy
the requirement of standing. Since petitioner has not successfully established a direct and personal injury as a
consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional
issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake
to obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit
which does not satisfy the requirement of legal standing when paramount interest is involved.16 In not a few cases, the
Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.17 Thus, when the issues raised are of paramount importance to the public,
the Court may brush aside technicalities of procedure.18 In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax
the rules on standing and to resolve the issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling
the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the
deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section
18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the
aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling
of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment."19

The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed
forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which
are beyond the review powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of
judicial review. But, while this Court gives considerable weight to the parties’ formulation of the issues, the resolution
of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus,
while the parties are in agreement that the power exercised by the President is the power to call out the armed forces,
the Court is of the view that the power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point
discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the President’s powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when
no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times
of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.

xxx21

Nonetheless, even if it is conceded that the power involved is the President’s power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result.

We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the judiciary
because it involves a political question, and thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.22 It
pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances
that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are "political questions." The
reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular
act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts
will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the
courts to step in to uphold the law and the Constitution.

As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government." Thus, if an issue is clearly identified by the text of the Constitution
as matters for discretionary action by a particular branch of government or to the people themselves then it is held to
be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on the surface of
any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by various departments on the one question."

The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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."25 Under this definition, the Court cannot agree with the
Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When
the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications
or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity,
not its wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.27 When
political questions are involved, the Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.28

By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as
to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.29 Under this definition, a court is without power to directly decide matters over which full discretionary authority
has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise has been made in grave abuse of discretion.30A
showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for
the improvident exercise or abuse thereof may give rise to justiciable controversy.31

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom
or substitute its own. However, 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. In view
of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.
The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there
exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that
grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional
provision on civilian supremacy over the military. In the performance of this Court’s duty of "purposeful
hesitation"32 before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion
is clearly shown shall the Court interfere with the President’s judgment. To doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call
out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part:

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.

xxx

The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is
also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:

xxx

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 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.

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.

Under the foregoing provisions, 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. Expressio unius est exclusio alterius. Where the terms are expressly
limited to certain matters, it may not, by interpretation or construction, be extended to other matters.33 That the intent
of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence
by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it
is necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first
sentence: "The President may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by
the First Sentence: "The President....may call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion." So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead
of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces
of the Philippines as their Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.34

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President
the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and
more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the
writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out
the armed forces. The only criterion is that "whenever it becomes necessary," the President may call the armed forces
"to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full
discretion and wide latitude in the exercise of the power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this
Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable
to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out
the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some
of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives
and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence
must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we
consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could
be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this Court.

The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila..."35 We do not doubt the veracity of the President’s assessment of the
situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the
areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient
factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character
of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts
that by the deployment of the Marines, the civilian task of law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the visibility
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader
of the PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures.38 It is their responsibility to direct and manage the deployment of the Marines.39 It
is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force.
Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.41

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement
in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision.
The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP,
and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines
was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of.
Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
patrols. As such, there can be no "insidious incursion" of the military in civilian affairs nor can there be a violation of
the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction.
The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally "civil" functions. As correctly pointed out by the Solicitor General, some of the
multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian
and the military together in a relationship of cooperation, are:

1. Elections;42

2. Administration of the Philippine National Red Cross;43

3. Relief and rescue operations during calamities and disasters;44

 4. Amateur sports promotion and development;45

5. Development of the culture and the arts;46

6. Conservation of natural resources;47

7. Implementation of the agrarian reform program;48

8. Enforcement of customs laws;49

9. Composite civilian-military law enforcement activities;50

10. Conduct of licensure examinations;51

11. Conduct of nationwide tests for elementary and high school students;52

12. Anti-drug enforcement activities;53

13. Sanitary inspections;54

14. Conduct of census work;55

15. Administration of the Civil Aeronautics Board;56

16. Assistance in installation of weather forecasting devices;57

17. Peace and order policy formulation in local government units.58

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice,
long pursued to the knowledge of Congress and, yet, never before questioned.59 What we have here is mutual support
and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic
purposes has persisted,60 and whose Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of
the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision
of the Act states:

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.62

To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US
courts63 apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive,
or compulsory64 George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards
for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE
BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal,
pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx
When this concept is transplanted into the present legal context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future
1âwphi1

injury would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible
use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian supremacy
clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory, proscriptive, or compulsory
military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6, 66 8(k)67 and 9(a)68of
Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all arrested
persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive
force. The materials or equipment issued to them, as shown in No. 8(c)70 of Annex A, are all low impact and defensive
in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power,
the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law
enforcement.71

It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain
ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power
to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not,
that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s determination of the
factual basis for the calling of the Marines to prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained
that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.
 EN BANC

G.R. No. 170165 August 15, 2006

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES, ARMED
FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA AS THE PRE-TRIAL
TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST MARSHALL GENERAL GARCIA, and OF
THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL, Respondents.

DECISION

TINGA, J.:

A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of their superior officers
are exempt

from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid under civilian
law. Obedience and deference to the military chain of command and the President as commander-in-chief are the
cornerstones of a professional military in the firm cusp of civilian control. These values of obedience and deference
expected of military officers are content-neutral, beyond the sway of the officer’s own sense of what is prudent or rash,
or more elementally, of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the
"ills" of participatory democracy.

Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining them and other
military officers from testifying before Congress without the President’s consent. Petitioners also pray for injunctive
relief against a pending preliminary investigation against them, in preparation for possible court-martial proceedings,
initiated within the military justice system in connection with petitioners’ violation of the aforementioned directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on
fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be

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

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

I.

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

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

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

On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the
Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri
in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee
hearing on 28 September 2005, the Memorandum directed the two officers to attend the hearing.6Conformably, Gen.
Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing
scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that some
of the invited officers also could not attend as they were "attending to other urgent operational matters." By this time,
both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.

Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA
Superintendent from the office of Gen. Senga, stating as follows:

PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY
CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F
GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.7

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that "no approval
has been granted by the President to any AFP officer to appear" before the hearing scheduled on that day.
Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to
the conduct of the 2004 elections.

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

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

On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order No.
464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive department including the military
establishment from appearing in any legislative inquiry without her approval."10 This Court subsequently ruled on the
constitutionality of the said executive order in Senate v. Ermita.11 The relevance of E.O. 464 and Senate to the present
petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A. Galarpe
of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General (OPMG) on 3 October
2005 for investigation. During their appearance before Col. Galarpe, both petitioners invoked their right to remain
silent.12 The following day, Gen. Gudani was compulsorily retired from military service, having reached the age of 56.13

In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with violation
of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct prejudicial to
the good order and military discipline.14 As recommended, the case was referred to a Pre-Trial Investigation Officer
(PTIO) preparatory to trial by the General Court Martial (GCM).15 Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa,
the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at
the Pre-Trial Investigation of the Charges for violation of Articles 65 16 and 9717 of Commonwealth Act No. 408,18 and
to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate General.19 The Orders
were accompanied by respective charge sheets against petitioners, accusing them of violating Articles of War 65 and
97.

It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking that (1)
the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before Congress
without her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets against petitioners
be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and
on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.20

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

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

II.

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

Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged by
petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28
September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact that
the day before, there was an order from Gen. Senga (which in turn was sourced "per instruction" from President
Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely admit
before this Court that they had learned of such order prior to their testimony, although the OSG asserts that at the
very least, Gen. Gudani already knew of such order before he testified.22 Yet while this fact may be ultimately material
in the court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not proffer as an
issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, which
emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be acknowledged
as a general principle23 that AFP personnel of whatever rank are liable under military law for violating a direct order of
an officer superior in rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be
necessary to assume, for the purposes of this petition, that petitioners did so.

III.

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

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

During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the issues
raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of E.O. 464 would
bear no impact on the present petition since petitioners herein were not called to task for violating the executive order.
Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the aegis of the
commander-in-chief powers26 to require military officials from securing prior consent before appearing before
Congress. The pertinent factors in considering that question are markedly outside of those which did become relevant
in adjudicating the issues raised in Senate. It is in this petition that those factors come into play.

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

This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 where the Court declared that an officer
whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military
authorities when military justice proceedings were initiated against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel
Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues
until the case is terminated.28

Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:

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

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

IV.

We now turn to the central issues.

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

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

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

implication as to whatever inherent martial authority the President may possess.36

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

Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered confined under "house
arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his
house arrest, that he may not issue any press statements or give any press conference during his period of detention.
The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that
certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by
rules of military discipline. Thus, to a certain degree, individual rights may be curtailed, because the
effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance
of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be
faithfully complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that
the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.39

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes several
of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot abide by these
limitations normally do not pursue a military career and instead find satisfaction in other fields; and in fact many of
those discharged from the service are inspired in their later careers precisely by their rebellion against the
regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on character, for
the military mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to personal
freedoms are expected. After all, if need be, the men and women of the armed forces may be commanded upon to
die for country, even against their personal inclinations.

It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the armed forces is as protector of the people and of the
State.40 Towards this end, the military must insist upon a respect for duty and a discipline without counterpart in civilian
life.41 The laws and traditions governing that discipline have a long history; but they are founded on unique military
exigencies as powerful now as in the past.42 In the end, it must be borne in mind that the armed forces has a distinct
subculture with unique needs, a specialized society separate from civilian society. 43 In the elegant prose of the
eminent British military historian, John Keegan:

[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They are those of
a world apart, a very ancient world, which exists in parallel with the everyday world but does not belong to it. Both
worlds change over time, and the warrior world adopts in step to the civilian. It follows it, however, at a distance. The
distance can never be closed, for the culture of the warrior can never be that of civilization itself….44

Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior officer is
punishable by court-martial under Article 65 of the Articles of War.45 "An individual soldier is not free to ignore the
lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline if the seaman
and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon
their own opinion of their rights [or their opinion of the

President’s intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully
exercised."46

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

The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to speak
freely on political matters. The Constitution requires that "[t]he armed forces shall be insulated from partisan politics,"
and that ‘[n]o member of the military shall engage directly or indirectly in any partisan political activity, except to
vote."47 Certainly, no constitutional provision or military indoctrination will eliminate a soldier’s ability to form a personal
political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a potential
source of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional function
as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an atmosphere
that promotes an active dislike of or dissent against the President, the commander-in-chief of the armed forces.
Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This fundamental principle averts
the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked by regime changes
wherein active military dissent from the chain of command formed a key, though not exclusive, element. The Court is
not blind to history, yet it is a judge not of history but of the Constitution. The Constitution, and indeed our modern
democratic order, frown in no uncertain terms on a politicized military, informed as they are on the trauma of absolute
martial rule. Our history might imply that a political military is part of the natural order, but this view cannot be affirmed
by the legal order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant
as our socio-political culture has become on it. At the same time, evolution mandates a similar demand that our system
of governance be more responsive to the needs and aspirations of the citizenry, so as to avoid an environment
vulnerable to a military apparatus able at will to exert an undue influence in our polity.

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

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

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

V.

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

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

Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized
the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on
specified grounds. However, the ability of the President to prevent military officers from testifying before
Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to
control the actions and speech of members of the armed forces. The President’s prerogatives as commander-
in-chief are not hampered by the same limitations as in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential approval before
appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of
the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as
budget appropriations and the approval of higher-rank promotions,51 yet it is on the President that the Constitution
vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to control the individual
members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President.
After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the
armed forces.52

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

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

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

As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among others, the Court
has not shirked from reviewing the exercise by Congress of its power of legislative inquiry. 56 Arnault recognized that
the legislative power of inquiry and the process to enforce it, "is an essential and appropriate auxiliary to the legislative
function."57 On the other hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries
in aid of legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI of the
Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the
petitioners in Bengzon from testifying and producing evidence before the committee, holding that the inquiry in
question did not involve any intended legislation.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on the
constitutional power of congressional inquiry. Thus:

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information
in the legislative process. If the information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and
the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era", however, the right of Congress to
conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

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

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if
they belong to the executive branch. Nonetheless, there may be exceptional circumstances… wherein a clear pattern
of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction59 .

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from
testifying before Congress without the President’s consent notwithstanding the invocation of executive privilege to
justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto superseded the
claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to case
basis. Should neither branch yield to the other branch’s assertion, the constitutional recourse is to the courts, as the
final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in
legislative inquiries.

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

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

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

Petitioners have presented several issues relating to the tenability or wisdom of the President’s order on them and
other military officers not to testify before Congress without the President’s consent. Yet these issues ultimately detract
from the main point — that they testified before the Senate despite an order from their commanding officer and their
commander-in-chief for them not to do so,61 in contravention of the traditions of military discipline which we affirm
today. The issues raised by petitioners could have very well been raised and properly adjudicated if the proper
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procedure was observed. Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior officer under the setup we have prescribed.

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

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

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

SO ORDERED.