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G.R. No.

88211, September 15, 1989 paramount duty residing in that office to safeguard and protect general
Marcos, petitioner welfare. In that context, such request or demand should submit to the
VS. exercise of a broader discretion on the part of the President to determine
Manglapus, respondent (Part 1) whether it must be granted or denied.
Facts: For issue number 2, the question for the court to determine is whether or
Former President Ferdinand E. Marcos was deposed from the presidency via not there exist factual basis for the President to conclude that it was in the
the non-violent “people power” revolution and was forced into exile. national interest to bar the return of the Marcoses in the Philippines. It is
Marcos, in his deathbed, has signified his wish to return to the Philippines to proven that there are factual bases in her decision. The supervening events
die. But President Corazon Aquino, considering the dire consequences to the that happened before her decision are factual. The President must take
nation of his return at a time when the stability of government is threatened preemptive measures for the self-preservation of the country & protection of
from various directions and the economy is just beginning to rise and move the people. She has to uphold the Constitution.
forward, has stood firmly on the decision to bar the return of Marcos and his Fernan, Concurring
family. The president’s power is not fixed. Limits would depend on the imperatives
Aquino barred Marcos from returning due to possible threats & following of events and not on abstract theories of law. We are undergoing a critical
supervening events: time and the current problem can only be answerable by the President.
failed Manila Hotel coup in 1986 led by Marcos leaders Threat is real. Return of the Marcoses would pose a clear & present danger.
channel 7 taken over by rebels & loyalists Thus, it’s the executive’s responsibility & obligation to prevent a grave &
plan of Marcoses to return w/ mercenaries aboard a chartered plane of a serious threat to its safety from arising.
Lebanese arms dealer. This is to prove that they can stir trouble from afar We can’t sacrifice public peace, order, safety & our political & economic
Honasan’s failed coup gains to give in to Marcos’ wish to die in the country. Compassion must give
Communist insurgency movements way to the other state interests.
secessionist movements in Mindanao Cruz, Dissenting
devastated economy because of As a citizen of this country, it is Marcos’ right to return, live & die in his own
accumulated foreign debt country. It is a right guaranteed by the Consti to all individuals, whether
plunder of nation by Marcos & cronies patriot, homesick, prodigal, tyrant, etc.
Marcos filed for a petition of mandamus and prohibition to order the Military representatives failed to show that Marcos’ return would pose a
respondents to issue them their travel documents and prevent the threat to national security. Fears were mere conjectures.
implementation of President Aquino’s decision to bar Marcos from returning Residual powers – but the executive’s powers were outlined to limit her
in the Philippines. Petitioner questions Aquino’s power to bar his return in powers & not expand.
the country. He also questioned the claim of the President that the decision Paras, Dissenting
was made in the interest of national security, public safety and health. AFP has failed to prove danger which would allow State to impair Marcos’
Petitioner also claimed that the President acted outside her jurisdiction. right to return to the Philippines. .
According to the Marcoses, such act deprives them of their right to life, Family can be put under house arrest & in the event that one dies, he/she
liberty, property without due process and equal protection of the laws. They should be buried w/in 10 days.
also said that it deprives them of their right to travel which according to Untenable that without a legislation, right to travel is absolute & state is
Section 6, Article 3 of the constitution, may only be impaired by a court powerless to restrict it. It’s w/in police power of the state to restrict this right
order. if national security, public safety/health demands that such be restricted. It
Issue: can’t be absolute & unlimited all the time. It can’t be arbitrary & irrational.
Whether or not, in the exercise of the powers granted by the Constitution, No proof that Marcos’ return would endanger national security or public
the President may prohibit the Marcoses from returning to the Philippines. safety. Fears are speculative & military admits that it’s under control.
Whether or not the President acted arbitrarily or with grave abuse of Filipinos would know how to handle Marcos’ return.
discretion amounting to lack or excess of jurisdiction when she determined Padilla, Dissenting
that the return of the Marcoses to the Philippines poses a serious threat to Sarmiento, Dissenting
national interest and welfare and decided to bar their return. President’s determination that Marcos’ return would threaten national
Decision: security should be agreed upon by the court. Such threat must be clear &
No to both issues. Petition dismissed. present.
Ratio: G.R. No. 88211, October 27, 1989
Separation of power dictates that each department has exclusive powers. Marcos, petitioner
According to Section 1, Article VII of the 1987 Philippine Constitution, “the VS.
executive power shall be vested in the President of the Philippines.” Manglapus, respondent (Part 2)
However, it does not define what is meant by “executive power” although in Facts:
the same article it touches on exercise of certain powers by the President, In its decision dated September 15, 1989, the Court by a vote of eight to
i.e., the power of control over all executive departments, bureaus and seven, dismissed the petition, after finding that the President did not act
offices, the power to execute the laws, the appointing power to grant arbitrarily or with grave abuse of discretion in determining that the return of
reprieves, commutations and pardons… (art VII secfs. 14-23). Although the former President Marcos and his family pose a threat to national interest and
constitution outlines tasks of the president, this list is not defined & welfare and in prohibiting their return to the Philippines. On September 28,
exclusive. She has residual & discretionary powers not stated in the 1989, Marcos died in Honolulu, Hawaii.
Constitution which include the power to protect the general welfare of the President Corazon Aquino issued a statement saying that in the interest of
people. She is obliged to protect the people, promote their welfare & the safety of those who will take the death of Marcos in widely and
advance national interest. (Art. II, Sec. 4-5 of the Constitution). Residual passionately conflicting ways, and for the tranquility and order of the state
powers, according to Theodore Roosevelt, dictate that the President can do and society, she did not allow the remains of Marcos to be brought back in
anything which is not forbidden in the Constitution (Corwin, supra at 153), the Philippines.
inevitable to vest discretionary powers on the President (Hyman, American A motion for Reconsideration was filed by the petitioners raising the
President) and that the president has to maintain peace during times of following arguments:
emergency but also on the day-to-day operation of the State. Barring their return would deny them their inherent right as citizens to
The rights Marcoses are invoking are not absolute. They’re flexible return to their country of birth and all other rights guaranteed by the
depending on the circumstances. The request of the Marcoses to be allowed Constitution to all Filipinos.
to return to the Philippines cannot be considered in the light solely of the The President has no power to bar a Filipino from his own country; if she has,
constitutional provisions guaranteeing liberty of abode and the right to she had exercised it arbitrarily.
travel, subject to certain exceptions, or of case law which clearly never There is no basis for barring the return of the family of former President
contemplated situations even remotely similar to the present one. It must be Marcos.
treated as a matter that is appropriately addressed to those residual Issue:
unstated powers of the President which are implicit in and correlative to the
Whether or not the motion for reconsideration that the Marcoses be allowed I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK VIN
to return in the Philippines be granted. JOVITA MONTES, Petitioners, v. PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECR
No. The Marcoses were not allowed to return. Motion for Reconsideration NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents.
denied because of lack of merit. G.R. No.
Petitioners failed to show any compelling reason to warrant reconsideration. NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NOR
Factual scenario during the time Court rendered its decision has not MAPANDI, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPA
changed. The threats to the government, to which the return of the SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOV
Marcoses has been viewed to provide a catalytic effect, have not been shown CHARGE) CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHIEF OF S
to have ceased. Imelda Marcos also called President Aquino “illegal” claiming NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA ROSA, NATIO
that it is Ferdinand Marcos who is the legal president. ESPERON, JR., Respondents.
President has unstated residual powers implied from grant of executive DECISION
power. Enumerations are merely for specifying principal articles implied in DEL CASTILLO, J.:
the definition; leaving the rest to flow from general grant that power, Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo
interpreted in conformity with other parts of the Constitution (Hamilton). declaring a state of martial law and suspending the privilege of the writ of h
Executive unlike Congress can exercise power from sources not enumerates
so long as not forbidden by constitutional text (Myers vs. US). This does not The full text of Proclamation No. 216 reads as follows:
amount to dictatorship. Amendment No. 6 expressly granted Marcos power WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016
of legislation whereas 1987 Constitution granted Aquino with implied account of lawless violence
It is within Aquino’s power to protect & promote interest & welfare of the WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of in
people. She bound to comply w/ that duty and there is no proof that she requires it, he (the President) may, for a period not exceeding sixty days, suspend the p
acted arbitrarily the Philippines or any part thereof under

Philippine Supreme Court Jurisprudence > Year 2017 > July 2017 Decisions > G.R. No. 231658, Article
04, 2017 the Revised Penal Code, as amended by R.A. No. 6968, provide
AND TEDDY by rising and taking
BRAWNER arms against
BAGUILAT, JR., the Government for the purpose of remo
Petitioners, v. HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN or itsN.laws, the territory
LORENZANA, of the Republic
SECRETARY OF THEof the Philippines or any part thereof, of any b
the Legislature, wholly or partially, of
OLALO, reasons
ROY for the issuance of Proclamation No. 55 was the seri
terrorist groupANTONIO
L. TINIO, on the military outpost in Butig, Lanao del Sur in F
Marawi City in August 2016, freeing their
DEFENSE 2017, the same
SECRETARY DELFINMaute terrorist group has taken over a hospit
checkpoints within
NATIONAL burned down certain government and private fac
DIRECTOR-GENERAL RONALD DELA ROSA, Respondents.; G.R. No. 231774 - NORKAYAGovernment S. MOHAMAD, forces, and started
SITTIE flying theS.flag of the Islamic State of Iraq and Syria (ISIS
the allegiance to the Philippine Government this part of Mindanao an
of the land and to maintain public order and sa
SECURITY ADVISER HERMOGENES C. ESPERON, JR., Respondents.: WHEREAS, this recent attack shows the capability of the Maute group and other rebel
damage to property not only in Lanao del Sur but also

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippin
the Constitution and by law, do hereby
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of is
effective as of the
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the
of martial
DONE in the Russian Federation, this 23 day of May in the year of our Lord, Two Thousa
Within the timeline set by Section 18, Article VII of the Constitution, the President subm
Report on the factual basis of
The Report pointed out that for decades, Mindanao has been plagued with rebellion an
worsened with the passing of time.
Mindanao has been the hotbed of violent extremism and a brewing rebellion for decad
the perpetration of numerous acts of violence challenging the authority of the duly c
siege, the Davao bombing, the Mamasapano carnage, and the bombings in Cotabato
others. Two armed groups have figured prominently in all these, namely, the Abu Say
G.R. No. 231658, July 04, 2017
The President went on to explain that on May 23, 2017, a government operation to c
Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which have be
confronted the government operation by intensifying their efforts at sowing violenc
authorities and its facilities but likewise against civilians and their prop
G.R. No. 231771
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader
leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance wh
government. Through these groups' armed siege and acts of violence directed tow
institutions and establishments, they were able to take control of major social, econom
which led to its paralysis. This sudden taking of control was intended to lay the groundwork
have been
for the
the government
of a from restoring peace and order in
DAESH wilayat or province government
in personnel Mindanao.
to and from the cit

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted Theoftaking
around uptwoof arms
hundredby lawless
armed(263)groups in the area, with support being provide
members, fully armed and prepared to wage combat in furtherance of its aims. The group money,
chieflyand operates
their blatant
in the acts
provinceof defiance
of Lanao which embolden other armed groups in Min
del Sur, but has extensive networks and linkages with foreign and local armed groupspublic such order
as theand Jemaah
safety Islamiyah,
in Marawi Mujahidin
City; they have likewise compromised the security of t
Indonesia Timur and the ASG. It adheres to the ideals being espoused by the DAESH, as The evidenced
Reportby, highlighted
among others, the strategic
its publication
location of Marawi City and the crucial and sig
of a video footage declaring its allegiance to the DAESH. Reports abound that foreign-based Philippines
terroristas groups,
a whole. theInISISaddition,
(Islamicthe StateReportof pointed out the possible tragic repercussi
Iraq and Syria) in particular, as well as illegal drug money, provide financial andoflogistical the lawless support the Maute Group.
The groups' occupation of Marawi City fulfills a strategic objective because of its terra
The events commencing on 23 May 2017 put on public display the groups' clear intention parts toof establish
Mindanao. anLawless
Islamic armedState and groupstheir have historically used provinces adjoining Ma
capability to deprive the duly constituted authorities - the President, foremost - of their powers
backdoor and prerogatives.2
In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City which impelled him
to declare a state of martial law and suspend the privilege of writ of habeas corpus, to wit: Considering the network and alliance-building activities among terrorist groups, local cr
At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced Marawi Citytheir is a vital
attack cogoninvarious
their long-standing goal: absolute control over the
government and privately owned - in the City of Marawi. demand swift and decisive action to ensure the safety and security of the Filipino people
At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being managed ThebyPresident
the Bureau ended of his
Managementin this wise:chanRoblesvirtualLawlibrary
Penology (BJMP). While the government is presently conducting legitimate operations to address the on-
The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted public
safety personnel.
necessitates BJMPthe personnel
continued were implementation of martial law and the suspe
disarmed, tied, and/or locked inside the cells. corpus in the whole of Mindanao until such time that the rebellion is completely quelled
The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisonerInvans addition
and privateto thevehicles).
Report, representatives from the Executive Department, the militar
By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights with were the heard Senate and feltandeverywhere.
the House By of Representatives relative to
evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply was still cut off, plunging the city
into total black-out.) After the submission of the Report and the briefings, the Senate issued P.S. Resolut
From 1800H to 1900H, the same members of the Maute Group ambushed and burned the martial
Marawi lawPolice
Station. and A patrol
of the No. 216 "to be satisfactory, constitut
Police Station was also taken. same Resolution, the Senate declared that it found "no compelling reason to revok
A member of the Provincial Drug Enforcement Unit was killed during the takeover of follows:chanRoblesvirtualLawlibrary
the Marawi City Jail. The Maute Group
facilitated the escape of at least sixty-eight (68) inmates of the City Jail. NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the
The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate. Proclamation No. 216 to be satisfactory, constitutional and in accordance with th
By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo,
and Sauiaran, No. 216 felland
findsthe nocontrol
compelling of reason to revoke the same.9
these groups. They threatened to bomb the bridges to pre-empt military reinforcement. The Senate's counterpart in the lower house shared the same sentiments. The Hous
As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi Resolution City,No. 105010 "EXPRESSING
Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, IT FINDS
Mapandi,NO REASONSaduc, TO LilodREVOKE
Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and Abubakar. PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN
These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City junction.
Later in the evening, the Maute Group burned Dansalan College Foundation, CathedralThe of Maria Auxiliadora, the nun's quarters in
the church, and the Shia Masjid Moncado Colony. Hostages were taken from the church.
About five (5) faculty members of Dansalan College Foundation had been reportedly killed A)by the lawless groups. G.R. No. 231658
Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the Marawi Central
Elementary Pilot School. On June 5, 2017, Representatives Edcel C. Lagman, Tomasito S. Villarin, Gary C. Alejano
The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there,Baguilat, among other Jr. several a Petition11As
filed locations. Under
of 0600H the Third Paragraph of Section 18 of
of 24 May 2017, members of the Maute Group were seen guarding the entry gates of Amai Pakpak Hospital. They held hostage the
employees of the Hospital and took over the PhilHealth office located thereat. First, the Lagman Petition claims that the declaration of martial la has no sufficient fa
The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, whichinvasion
they later
in Marawi set ablaze.
City or in any part of Mindanao. It argues that acts of terrorism in M
Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered there oneis noofproofits armored
that itsvehicles.
purpose is to remove Mindanao or any part thereof from a
Latest information indicates that about seventy-five percent (75%) of Marawi City hasterritory. been infiltratedIt labelsby thelawless
flying of armedISIS flag
by the Maute Group in Marawi City and other o
composed of members of the Maute Group and the ASG. As of the time of this Report,an eleven
open(11) attemptmembers to remove
of thesuch Armed areas
Forcesfrom the allegiance to the Philippine Governm
and the Philippine National Police have been killed in action, while thirty-five (35) others assertion
have beenand seriously
exercise wounded.
of his powers and prerogatives therein. It contends that the Ma
There are reports that these lawless armed groups are searching for Christian communities basis thein Marawi
alleged interview
City to executeof VeraChristians.
Files with Joseph Franco wherein the latter allegedly
They are also preventing Maranaos from leaving their homes and forcing young male Muslims a "clan'sto join
groups.latching into the IS brand theatrically to inflate perceived ca
Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic
during the mass briefing,
action of representatives
lawless armedofgroups the military and defense authorities did not cate
in Marawi City, seizing public and private facilities, perpetrating killings of governmentISIS personnel,
threat inand thecommitting
country butarmed that they merely gave an evasive answer16 that "there is IS
against and open defiance of the government.3 also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed
The unfolding of these events, as well as the classified reports he received, led the President
to conclude
by the government
that - in its bid to capture Hapilon.18 Based on said statement, i
These activities constitute not simply a display of force, but a clear attempt to establish the
groups'armed seatresistance
of power in was Marawi
merelyCity to shield
for Hapilon and the Maute brothers from th
their planned establishment of a DAESH wilayat or province Marawi covering City and theremove entire
its allegiance the Philippine Republic.19 It then posit that i
Marawi City which is akin to "imminent danger" of rebellion, which is no longer a valid
The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and
strengthen their force; the armed consolidation of their members throughout Marawi City; Second,
the decimation
the LagmanofPetition a segment claims of that
the city
the declaration of martial law has no sufficient
population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, contained and unmistakable "false,intent to remove inaccurate, contrived and
Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government.
It labels as false the claim in the President's Report that the Maute Group attacked
There exists no doubt that lawless armed groups are attempting to deprive the President reports
of hison power,
the interview
authority, of and
Dr. Amer
Saber (Dr. Saber), the hospital's Chief, the Lagman
within Marawi City as a precedent to spreading their control over the entire Mindanao, in brought
an attempt
an injuredto undermine
memberhis to control
the hospital
over for treatment but did not overrun the hos
executive departments, bureaus, and offices in said area; defeat his mandate to ensure Lagman
that all Petition
laws are alsofaithfully
refutes the executed;
claim inand the President's Report that a branch of the Lan
remove his supervisory powers over local governments.4 its armored vehicle commandeered. It alleges that the bank employees themselves clar
According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, the armored
broughtvehicleaboutwas undue ownedconstraints
by a third andparty and was empty at the time it was comm
difficulties to the military and government personnel, particularly in the performanceonofthe their
dutiesofand thefunctions,
Senator Ninoy and untold
Aquino College Foundation and the Marawi Centr
hardships to the civilians, viz.:chanRoblesvirtualLawlibrary Senator Ninoy Aquino College Foundation is intact as of May 24, 2017 and that accord
Law enforcement and other government agencies now face pronounced difficulty sending Marawi
their reports
Centralto Elementary
the Chief Executive
Pilot School duewas to not burned by the terrorists. 24 Lastly, it poi
the city-wide power outages. Personnel from the BJMP have been prevented from performing of the policetheir functions.
chief of Malabang,
Through the Lanao
attack del Sur, and the occupation of the Marawi
and occupation of several hospitals, medical services in Marawi City have been adversely University.
affected. 25 The bridge and road blockades

set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements
Third, the Lagman Petition claims that the declaration of martial law has no sufficientprerogatives;
factual basisand
Marawi armedReport
hostilities is merely a prelude to a grander pla
mistakenly included the attack on the military outpost in Butig, Lanao del Sur in February conclusions
2016, the mass jailbreak in Marawi City inbereft of
August 2016, the Zamboanga siege, the Davao market bombing, the Mamasapano carnage and other bombing incidents in Cotabato,
Sultan Kudarat, and Basilan, as additional factual bases for the proclamation of martial law.
contends that
took after the declaration of martial law, and
place long before the conflict in Marawi City began, had long been resolved, or with the suit culprits
may already
having already
be brought
been arrested.
before the26 Court to assail the sufficiency of the

Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient Finally,
factual basis
in invoking
this Court's
that thepower
to review the sufficiency of the factual basis
acted alone and did not consult the military establishment or any ranking official 27 before
suspension of themaking
theof proclamation.
the writ of habeas corpus, the Mohamad Petition insists
the [President's] actions, [and] not just the presence of arbitrariness".54 Further, it assert
Finally, the Lagman Petition claims that the President's proclamation of martial law lacks
the burdenfactual
to prove
basis owing
the sufficiency
to the fact of the factual basis is shifted to and lies on t
that during the presentation before the Committee of the Whole of the House of Representatives,
compel the it [r]espondents
was shown that to divulge relevant information"56 in order for it to re
the military
was even successful in pre-empting the ASG and the Maute Group's plan to take over Marawi City and other parts of Mindanao;
there was absence of any hostile plan by the Moro Islamic Liberation Front; and the number
In closing,
of foreign
the Mohamad
fighters allied
ISIS for
wasthe Court to exercise its power to review, "c
"undetermined"28 which indicates that there are only a meager number of foreign fighters factualwho
the declaration
support to of themartial
Mautelaw and the suspension of the privilege of th
Group.29 declare as unconstitutional Proclamation No. 216 for lack

Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exerciseThe its specific and special jurisdiction to Consolidated
review sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a Decision voiding and nullifying Proclamation No.
216" for lack of sufficient The respondents'
Consolidated Comment basis.5830was filed on June 12, 2017, as required by
with the celebration of the 119th anniversary of the independence of this Republic, the
In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the "defending
Lagman Petition
the constitutionality
and set the caseof Proclamation
for oral No. 216" should serve as "a rallying ca
argument on June 13, 14, flag and and defend
15, it against
2017. all threats from within

On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 The wereOSG filedacknowledges
and eventuallythat consolidated
Section 18,with Article VII of the Constitution vests the Court
G.R. No. sufficiency of the factual basis of the 231658. 32
declaration of martial law.60 The OSG, however, po
the basis for the exercise of such authority or power, the same constitutional provision f
B) G.R. No. 231771 through (Cullamat
which the "appropriate proceeding" Petition) mentioned therein may be resorted to
proceeding" referred to in Section 18, Article VII may be availed of using the vehicle, m
The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewiseunder
the nullification
1 or 5, of of Article VIII.61 Corollarily,
Proclamation No. the OSG maintains that the review pow
216 for being unconstitutional because it lacks sufficient factual basis that there is rebellion
on thein Mindanao part of and thethatCourt.
public 62 The
safetyCourt has the discretion not to
warrants its declaration.34
Prescinding from the foregoing, the OSG contends that the sufficiency of the factua
In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates
to events by happening
the Courtin Marawi"under City the onlylens of grave abuse of discretion"64 and
an not in the entire region of Mindanao. It concludes that Proclamation No. 216 "failed facts.
to show 65Arbitrariness,
any factual basis notfor correctness,
the impositionshould be the standard in review
of martial law in the entire Mindanao,"35 "failed to allege any act of rebellion outside Marawi City, much less x x x allege that public
safety requires the imposition of martial law in The
the OSG maintainswhole that
of the burdenMindanao".lies not with the respondents but with the petitio
bereft of factual basis. It thus takes issue with petitioners' attempt to shift the burde
The Cullamat Petition claims that the alleged "capability of the Maute Group and other compel
rebel groups [the] to respondents
sow terror to andpresent
cause deathproof on the factual basis"66 of Proclamation N
and damage to property"37 does not rise to the level of rebellion sufficient to declare martial
prove" law67
in the wholethat of Mindanao.
governmental 38
It also actions are presumed to
posits that there is no lawless violence in other parts of Mindanao similar to that in Marawi City. 39
Likewise, the OSG posits that the sufficiency of the factual basis must be assessed f
Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups"President
in the lastand Whereas
based Clause
on the of facts available to him at the time the decision was made.6
No. 216 for being vague as it failed to identify these rebel groups and specify the acts basisof should
rebellion be that
they were not based
supposedlyon the facts discovered after the President had
waging.40 because to do so would subject the exercise of the President's discretion to an im
President's decision should be guided only by the information and data avail
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities determination.
in the Report of The
the OSG
thus asserts
to Congress,
that facts that were established after the declara
particularly the attack at the Amai Pakpak Hospital, the ambush and burning of the Marawi in the
of thethesufficiency
killing of five of teachers
the factual basis of the proclamation of martial law
of Dansalan College Foundation, and the attacks on after-proclamation-facts
various government lies with facilities.
the President 41 and Congress for the purpose of determ
the martial law. The OSG fears that the Court considers after-proclamation-facts in its
In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional
for the proclamation,
or in the alternative,
it would in should
effect usurp
the the powers of the Congress to determin
of the writ72of habeas corpus in Marawi City,
Court find justification for the declaration of martial law and suspension of the privilege extended.
to declare the same as unconstitutional insofar as its inclusion of the other parts of Mindanao.42
It is also the assertion of the OSG that the President could validly rely on intelligence re
C) G.R. No. 231774 Philippines;
(Mohamad and that he could not Petition) be expected to personally determine the veracity of
power to impose martial law is vested solely on the President as Commander-in-Ch
The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the]Defense
Factual Basis Secretary,
of [the] orDeclaration
any officialoffor Martial
that matter, will not nullify the said declaratio
Law and [the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself assufficiency
"a special proceeding"44 or an "appropriate of the
proceeding filed by any citizen"45 authorized under Section 18, Article VII of the Constitution.
Moreover, the OSG opines that the petitioners miserably failed to validly refute the fact
The Mohamad Petition posits that martial law is a measure of last resort46 and should 216be and invoked
in his Report
by the to President
the Congress
only afterby merely citing news reports that supposedly
exhaustion of less severe remedies.47 It contends that the extraordinary powerscriticizing of the in President
piecemealshould the happenings
be dispensed in Marawi. For the OSG, the said news articles a
sequentially, i.e., first, the power to call out the armed forces; second, the power to suspend
thus inadmissible
the privilegeand ofwithout
the writprobative
of habeas value, and could not overcome the "legal pres
corpus; and finally, the power to declare martial law.48 It maintains that the President has no discretion to choose which
extraordinary power to use; moreover, his choice must be dictated only by, and commensurate Finally, the to, OSG
the exigencies
points outof that
has no duty 49 or burden to prove that Proclamation No

that the burden rests with the petitioners. However, the OSG still endeavors to lay out t
According to the Mohamad Petition, the factual situation in Marawi is not so grave as to "if requireonlythe imposition
to remove of martial anylaw.50doubtIt as to the constitutionalit
asserts that the Marawi incidents "do not equate to the existence of a public necessity brought about by an actual rebellion, which
would compel the imposition of martial law or the suspension of the privilege of theThe writfacts
of habeas
laid out corpus".
by the OSG 51 It in
its Consolidated
that Comment will be discussed in detail in t
"[m]artial law can only be justified if the rebellion or invasion has reached such gravity that
ISSUES[its] imposition x x x is compelled by the
needs of public safety"52 which, it believes, is not yet present in Mindanao.
The issues as contained in the revised Advisory78 are as follows:
Moreover, it alleges that the statements contained in the President's Report to the Congress,
Whether to wit: or that
not the Maute
petitions Group
intended as G.R. Nos. 231658, 231771, and 231774 ar
to establish an Islamic State; that they have the capability to deprive the duly constitutedParagraph authorities
3, Section 18, of their
VII of and the Constitution sufficient to invoke the mod
declaration of martial law or the suspension of the privilege of the writ of habeas corpus of
is promulgated; Article
Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas corpus:
is required to be factually correct or only not arbitrary in his appreciation of facts; The Court
is required to obtain the favorable recommendation thereon the Secretary of National Defense;
is required to take into account only the situation at the time of the proclamation, evena) if subsequent
events provemust the situation
be to specifically conferred by the
have not been accurately reported;
It is settled that jurisdiction over the subject matter is conferred only by the Constitu
Whether or not the power of this Court to review the sufficiency of the factual basis [of] beenthespecifically
of martial
by thelaw
or the or by some legislative act, no body or t
suspension of the privilege of the writ of habeas corpus is independent of the actual matteractionsbrought
that have before
beenit taken
for resolution.
by Congress
It is likewise settled that in the absence of a c
jointly or separately; implied from the language of the Constitution or a statute.90 It must appear clearly fr
Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus; A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically gra
What are the parameters for review? sufficiency of the factual basis of the proclamation of martial law or suspension of
Who has the burden of proof?
What is the threshold of evidence? b) "In an appropriate proceeding" does not refer to a petition for certiorari fi

Whether the exercise of the power of judicial review by this Court involves the calibration It could not of have
been the powers
grantedof thetheframers of the Constitution that the phrase "
President a Commander-in-Chief, namely calling out powers, suspension of the privilege a Petition of for
writ of habeas
to Sectionand1 or Section 5 of Article VIII. The standard of
declaration of martial law; the respondent has committed any grave abuse of discretion amounting to lack or exces
Whether or not Proclamation No. 216 of 23 May 2017 may be considered vague and thusher nullfunctions.
and void:Thus, it is not the proper tool to review the sufficiency of the factual basi
with its inclusion of "other rebel groups;" or be emphasized that under Section 18, Article VII, the Court is tasked to review the suff
since it has no guidelines specifying its actual operational parameters within the entire Mindanao
exercise of region;
emergency powers. Put differently, if this Court applies the standard of revie
would emasculate its constitutional task under
Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are
sufficient [bases]: c) Purpose/significance of Section 18, Article VII is to constitutionalize the pre-Marco
for the existence of actual rebellion; or Petition for Habeas Corpus
for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire Mindanao region;
The third paragraph of Section 18, Article VII was inserted by the framers of the 198
Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion Marcos and martial
the requirements
law ruling of of this
in In the Matter of the Petition for Habeas Corpu
sufficient to declare martial law or suspend the privilege of the writ of habeas corpus; andof the declaration of martial law or the suspension of the privilege of the writ of h
Whether or not nullifying Proclamation No. 216 of 23 May 2017 will: precisely within the ambit of
have the effect of recalling Proclamation No. 55 s. 2016; or
also nullify the acts of the President in calling out the armed forces to quell lawless "In violence
in Marawithe meaning,
and otherintent,
parts andof the purpose of a law or constitutional provision, t
Mindanao region. and to which it may be rationally supposed to bear some direct relationship, the evils in
After the oral argument, the parties submitted their respective memoranda and supplemental accomplished
memoranda. are proper subjects of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas),
OUR RULING that drafted the 1987 Constitution, explained:chanRoblesvirtualLawlibrary
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Fe
I. Locus standi of on the Philippines from 1972 topetitioners. 1986. Supreme Court decisions during that period u
made authoritarian rule part of Philippine constitutional jurisprudence.The members o
One of the requisites for judicial review is locus standi, i.e., "the constitutional question aware
is brought
of these before
aboutby areformulating
party the Commander-in-Chief powers w
having the requisite 'standing' to challenge it."79 As a general rule, the challenger must constructed
have "a personal during and thesubstantial
authoritarian interest
years.inThe new formula included revised grounds
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement."
manner of Over
the years,
the scope of thea powers, and review of presidential action.94
has been
trend towards relaxation of the rule on legal standing, a prime example of which is found Toinrecall,
Section the18Court
of Article
held VII
in the
which 1951 case of Montenegro v. Castañeda95 that the auth
that any citizen may file the appropriate proceeding to assail the sufficiency of the factual rebellion
basis ofrequiring
the declaration
the suspension
of martial of the
or of the writ of habeas corpus is lodged
the suspension of the privilege of the writ of habeas corpus. "[T]he only requisite foris final standingand conclusive
to challenge upon
thethe validity
courts. ofThis
the ruling was reversed in the 1971 case of Lan
suspension is that the challenger be a citizen. He need of thenot declaration
even ofbemartial a lawtaxpayer."
and the suspension of the privilege of the writ of hab
within the ambit of judicial review.96 However, in 1983, or after the declaration of m
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of Marcos,
the Republic;" 82 similarly,
the Court, in Garcia-Padilla
petitioners v. Enrile,97 abandoned the ruling in Lansang and
in the
Mohamad Petition all claim to be "Filipino citizens, all women, all of legal [age], and Supreme residents Court,
of Marawi City". 83 In the power
the constitutional Lagman of the President to suspend the privilege of
Petition, however, petitioners therein did not categorically mention that they are suing as judicial
citizens but merely referred to themselves
as duly elected Representatives.84 That they are suing in their official capacities as Members of Congress could have elicited a
vigorous discussion considering the issuance by the House of Representatives of House Resolution
Thus, by inserting
No. 1050 Section
expressing18 full
in Article
supportVIIo which allows judicial review of the declar
President Duterte and finding no reason to revoke Proclamation No. 216. By such resolution, privilege ofthe theHouse
writ ofof habeas
corpus, the isframers of the 1987 Constitution in effect co
declaring that it finds no reason to review the sufficiency of the factual basis of the doctrine.martial law declaration, which is in direct
contrast to the views and arguments being espoused by the petitioners in the Lagman Petition. Considering, however, the trend
towards relaxation of the rules on legal standing, as well as the transcendental issues involved
d) Purpose
in theofpresent
18, Article theVIICourt
is to will
provide additional safeguard against possible a
exercise judicial self-restraint85 and will not venture into this matter. After all, "the Courtextraordinary
is not entirely without discretion to accept
a suit which does not satisfy the requirements of a [bona fide] case or of standing. Considerations paramount to [the requirement of
legal standing] could compel assumption of jurisdiction."86 In any case, the Court canSection take judicial
18, Article
VII is meantof the
to provide
fact that additional safeguard against possible abuse b
petitioners in the Lagman Petition are all citizens of the Philippines since Philippine citizenship
to declare is martial
a requirement
law or suspendfor them the privilege
to be of the writ of habeas corpus. Reeling fro
elected as representatives. We will therefore consider them a suing in their own behalf the framers
as citizens
of the of Constitution
this country. deemedBesides,
it wise to insert the now third paragraph of Sec
respondents did not question petitioners'
records of the Constitutional
legal Commission
standing. when its members were deliberating on whet
even without the concurrence of Congress. Thus:chanRoblesvirtualLawlibrary
II. Whether or not the petitions are the "appropriate proceeding" covered by paragraph MR. 3, Section 18, SUAREZ.
Article VII of the Thank you,
Constitution sufficient to invoke the mode of review required by the Court.
The Commissioner is proposing a very substantial amendment because this means that
All three petitions beseech the cognizance of this Court based on the third paragraph the rightof toSection
determine18, Article
the factors
VII (Executive
which may lead to the declaration of martial law and
Department) of the 1987 Constitution which provides:chanRoblesvirtualLawlibrary I suppose he has strong and compelling reasons in seeking to delete this particular ph
The Supreme Court may review, in an appropriate proceeding filed by any citizen, substantial 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. MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
During the oral argument, the petitioners theorized that the jurisdiction of this Court under during
the the
paragraphon of the
Bill of
Articleas I understand it, the interpretation is a situ
VII is sui generis.87 It is a special and specific jurisdiction of the Supreme Court different situations,
from thosethe enumerated
President in hasSections
to act quickly.
1 and 5Secondly, this declaration has a time fuse. I
the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire
into the sufficiency of the factualjurisdiction
basis of of
the proclamation always exists, even during those first 60 days.
g) Jurisdiction of the Court is not restricted to those enumerated in
MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the President to determine
these factors, especially the existence of an invasion or rebellion and the second factorThe of jurisdiction
this Court theis public
not restricted
safety to those enumerated in Sections 1 and 5
requires it or not, may I call the attention of the Gentleman to what happened to us during be thethesolepast
of all contestsProclamation
relating to the election, returns, and qualifications of the
No. 1081 was issued by Ferdinand E. Marcos in his capacity as President of the Philippines thebylast
of the powers
of Sectionvested
4, Article
upon him VII.102 The power of the Court to review on ce
purportedly under Article VII, Section 10 (2) of the Constitution, wherein he made Commission
this predicate
on under Electionsthe "Whereas"
and Commission on Audit can be fou
Whereas, the rebellion and armed action undertaken by these lawless elements of the h) Communists
Unique andfeatures
other armed of aggrupations
the third paragraph of Section 18, A
organized to overthrow the Republic of the Philippines by armed violence and force have assumed the magnitude of an actual state
of war against our people and the Republic of the Philippines. The unique features of the third paragraph of Section 18, Article VII clearly indicate tha
And may I also call the attention of the Gentleman to General Order No. 3, also promulgated and different
by Ferdinand
in his capacity
in Article VIII. Under the third paragraph of Sec
as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamationtherewith No.will
dated a different
September rule21,on1972
standing as any citizen may file it. Said provisio
wherein he said, among other things:chanRoblesvirtualLawlibrary the sufficiency of the factual basis of the exercise by the Chief Executive of his eme
Whereas, martial law having been declared because of wanton destruction of lives and pleadings
in Petition
for Certiorari
is likewise
and not applicable under the third paragrap
anarchy and chaos and disorder now prevailing throughout the country, which conditionlimited has been brought
periodabout by within
groups of men which this Court has t
who are actively engaged in a criminal conspiracy to seize political and state power in the Philippines in order to take over the
government by force and violence, the extent of which has now assumed the proportionAofproceeding an actual war
its general
our people
and the [is] the form in which actions are to be broug
legitimate government . . . in suits, of conducting them, the mode of deciding them, of opposing judgments, and
And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and appropriate
declare martial
law in ourappearing
country on without
the third paragraph of Section 18, Article VII refe
justifiable reason. Would the Gentleman still insist on the deletion of the phrase 'and, withpurpose
the concurrence
of questioning of atthe
a majority of of
the factual basis of the exercise of the Chief
all the members of cases. Itthecould be denominated Congress'? as a complaint, a petition, or a m

MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos, he is undoubtedly III. anThe
power ofinthe ourCourt
historyto review
and national
the sufficiency of the factual basis of the proclama
consciousness. But given the possibility that there would be another Marcos, our Constitution privilege,now of the
of habeas safeguards.
corpus underAs I Section 18, Article VII of the 1987 Constitu
said, it is not really true, as the Gentleman has mentioned, that there is an exclusive right Congress.
to determine the factual basis because
the paragraph beginning on line 9 precisely tells us that the Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspensionDuring theoforal argument,of105the
the privilege thewrit
OSG or urged
the the Court to give deference to the ac
extension thereof and must promulgate its decision on the same Government: within 30on days the partfrom of the its President Commander-in-Chief, in resorting to his
and suspend the privilege of the writ of habeas corpus; and on the part of Congress, in g
I believe that there are enough safeguards. The Constitution is supposed to balance theand interests of the country. Andnot here we are revoking
trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. And I am saying that there are
enough safeguards, unlike in 1972 when Mr. Marcos was able to do all those things mentioned. 100
The framers of the 1987 Constitution reformulated the scope of the extraordinary pow
To give more teeth to this additional safeguard, the framers of the 1987 Constitution notand onlythe
the said presidential
proclamation action.
of In particular, the President's extraordina
martial law or suspension of the privilege of the writ of habeas corpus within the ambit writ of judicial
of habeas
review, corpus
it also relaxed
and imposingthe rule on martial law are subject to the veto
standing by allowing any citizen to question before this Court the sufficiency of the factual basis of such proclamation or suspension.
Moreover, the third paragraph of Section 18, Article VII veritably conferred upon any citizen a) aThe
demandable judicial
right to challenge
power theto review versus the con
sufficiency of the factual basis of said proclamation or suspension. It further designated this Court as the reviewing tribunal to
examine, in an appropriate proceeding, the sufficiency of the factual basis and to renderThe its decision
Court may thereon
strike within
down athe limited
period proclamation in an appropriate proceeding
of 30 days from datesufficient factual basis. of On the other hand, filing.Congress may revoke th proclamation or su
aside by the
e) Purpose of Section 18, Article VII is to curtail the extent of the powers of the President.
In reviewing the sufficiency of the factual basis of the proclamation o suspension, the Co
The most important objective, however, of Section 18, Article VII is the curtailment of the available
extent of to the
the powers
President of the
to or at the time of the declaration; it is not allowed
in-Chief. This is the primary reason why the provision was not placed in Article VIII or the beyond
Judicial pleadings."106
theDepartment butOn remained
the other under
hand, Congress may take into consideration n
Article VII or the events
supervening the declaration. Department.
Unlike the Court which does not look into the absol
discussed below, Congress could probe deeper and further; it can delve into the
During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz Palma expressed her
sentiments on the 1987 Constitution. She said:chanRoblesvirtualLawlibrary In addition, the Court's review power is passive; it is only initiated by the filing of a p
The executive power is vested in the President of the Philippines elected by the people for citizen.
a six-year
On the term
no reelection
Congress'for review
the mechanism is automatic in the sense that
duration of his/her life. While traditional powers inherent in the office of the Presidenttime are granted, nonetheless
after for thethe first time, proclamation or s
there are specific provisions which curtail the extent of such powers. Most significant is the power of the Chief Executive to
suspend the privilege of the writ of habeas corpusThus,
or the power
to reviewmartial
by the Court law. and the power to revoke by Congress are not on
from each other although concededly, they have the same trajectory, which is, the nu
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the Needless
to say,of martial
the power law of forthe
thanto review can be exercised independently
eight years and the suspension of the privilege of the writ even after the lifting of martial law in 1981. The new Constitution now
provides that those powers can be exercised only in two cases, invasion or rebellion when b)public
The framers
safety demands
of the 1987 it, only
for a period
intended the judicial power to review to be exe
not exceeding 60 days, and reserving to Congress the power to revoke such suspension power or proclamation of martial law which to
congressional action may not be revoked by the President. More importantly, the action of the President is made subject to judicial
review, thereby again discarding jurisprudence which render[s] the executive action a political If only question
to show and thatbeyond
the intent the jurisdiction
of the framers of the 1987 Constitution was to vest
of the courts independently
to from each other, we adjudicate.
quote the following exchange:chanRoblesvirtualLaw
MS. QUESADA. Yesterday, the understanding of many was that there would be safegua
For the first time, there is a provision that the state of martial law does not suspend the proclamation.
operation of the Constitution nor abolish
civil courts or legislative assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the privilege of the writ. Please
forgive me if, at this point, I state that this constitutional provision vindicates the dissentingMR. opinions I have written during my RAMA.
tenure in the Supreme Court in the martial law cases.101
f) To interpret "appropriate proceeding" as filed under Section 1 of Article VIII would beMS. contrary
QUESADA. to theButintent
now, ofif they
the Constitution.
cannot meet because they have been arrested or that th
going to declare that such a proclamation
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded jurisdiction of this Court
would, therefore, contradict the clear intention of the framers of the Constitution to place x additional safeguards against possiblex
martial law abuse for, invariably, the third paragraph of Section 18, Article VII would be subsumed under Section I of Article VIII. In
other words, the framers of the Constitution added the safeguard under the third paragraph MR. REGALADO.
of Section 18, May Article
I alsoVIIinform
on topCommissioner
of the Quesada that the judiciary is not ex
of habeas corpus, if the Members are detained, can immediately be applied for, and the that. Supreme
A state
Court of shall
alsolaw review
doesthe notfactual
suspend the operation of the Constitution; ther
basis. x x x107 separation of
c) Re-examination of the Court's pronouncement in Fortun v. President Macapagal-Arroyo.
The question now is: During martial law, can the President issue decrees? The answer
Considering the above discussion, the Court finds it imperative to re-examine, reconsider,was: andDuring
set aside
its pronouncement
law, the President in Fortun
may have the powers of a commanding general i
v. President Macapagal-Arroyo108 to the effect that:chanRoblesvirtualLawlibrary is fighting in an area, the President as the commanding general has the authority to is
Consequently, although the Constitution reserves to the Supreme Court the power to review strictlythe
in asufficiency
theater ofofwar, thenot
in thebasis
of we had during the period of martial law
the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress
return totothe exercise
its own concept
martial law as it was developed especially in Ame
which is automatic rather than initiated. Only when Congress defaults in its express duty reference
to defend the Constitutionto through such the theater
review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial
law or suspension of the writ of habeas corpus is first a political question in the hands xof Congress before it becomes a justiciablex
one in the hands of the Court.109
FR. BERNAS. This phrase was precisely put here because we have clarified the meaning
x x xlaw as it has existed in the jurisprudence inx international law, that it is a law for the th
are unable to function. If in the actual theater of war civil courts, in fact, are unable t
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation
or suspension
to give jurisdiction
within the evenshort
civilians to military courts precisely because th
expected of it, then the Court can step in, hear the petitions challenging the President's action,
the general
and ascertain
area where if itthe
a factual
are open then in no case can the military courts
x x x.110 reference to a theater of war where the civil courts, in
By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same to Congress as
well as, abdicated from its bounden duty to review. Worse, the Court considered itself just MR.on FOZ.
It iswaiting
a state and willing
of thingsto actbrought
as about by the realities of the s
a substitute in case Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set aside in this
proceeding.111 FR. BERNAS. That

We, therefore, hold that the Court can simultaneously exercise its power of review with, MR. and FOZ.
And it from, is not the something
power to that is brought about by a d
revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its
power to FR. BERNAS. It is not brought aboutreview. by a declaration of the Commander-in-Chief. The
authorize the conferment of jurisdiction on military courts and agencies over civilian
IV. The judicial power to review the sufficiency of factual basis of the declaration of martial
Marcos lawregime
or thewhere
of courts
the privilege
were given jurisdiction over civilians. We say here
of the writ of habeas corpus does not extend to the calibration of the President's decision whereof civil
which courts
among are,his
in fact,
to function and it becomes necessary for some kind
he will avail of in aA state of martial givenlaw is peculiar because
situation. the President, at such a time, exercises police
Legislature. In particular, the President exercises police power, with the military's assist
The President as the Commander-in-Chief wields the extraordinary powers of: a) calling government
out the armed agencies
whichb) suspending
for the timethe being are unable to cope with the condition in
privilege of the writ of habeas corpus; and c) declaring martial law.112 These powersofmay be resorted to only under specified the
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendo
The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief Senate Committee
by revising on the
on March for13,the2006, stated that under a valid declaration o
activation of emergency powers, the manner of activating them, the scope of the powers, in-Chiefand
may review
orderof thepresidential
"(a) arrestsaction."
and seizures without judicial warrants; (b) ban on pub
and agencies and press censorship; and (d) issuance of
a) Extraordinary powers of the President distinguished.
Worthy to note, however, that the above-cited acts that the President may perform do
Among the three extraordinary powers, the calling out power is the most benign and on the
rights ofordinary
duringaction. 114law.
martial The This is because martial law does not suspen
President may resort to this extraordinary power whenever it becomes necessary to prevent does or
it supplant
suppressthe lawless
of civil
courts or legislative assemblies. Moreover, the g
or rebellion. "[T]he power to call is fully discretionary to the President;"115 the only limitations
place during
being its
he acts within
And inpermissible
such instance where the privilege of the writ of habea
constitutional boundaries or in a manner not constituting grave abuse of discretion.116 Inapplies
fact, "the actual
only use to to which
those the judicially
President charged with rebellion or of
puts the armed forces is x x x not subject to judicial review." 117
Clearly, from the foregoing, while martial law poses the most severe threat to civil
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or against
declaring martial
the lawPresident's
may be exercised prerogative to declare a
only when there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution imposed the following limits in
the exercise of these powers: "(1) a time limit of sixty days; (2) review and possible revocation
c) "Graduation"
by Congress;
of powers [and]refers
(3) review
to hierarchy
and based on scope and effect) it does not re
possible nullification by the which Supreme the Court." 118 Commander-in-Chief must

The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent Indeed,danger
the 1987
as grounds
gives the
for "President,
the as Commander-in-Chief, a 'sequenc
suspension of the privilege of the writ of habeas corpus or declaration of martial law. the119least
these theare:
the calling
out power, the power to suspend the privilege of
danger" to be "fraught with possibilities of abuse;"120 besides, the calling out power declare
of the President "is 131
martial law." sufficient
It must be forstressed,
handlinghowever, that the graduation refers only to
imminent not in any manner refer to a sequence, danger." 121
arrangement, or order which the Commander-in
of powers" does not dictate or restrict the manner by which the Presi
The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and suppression of
civil rights and individual freedom. Thus, the declaration of martial law serves as a warning
to citizens
that thepowers
Executive areDepartment
conferred by the Constitution with the President as C
has called upon the military to assist in the maintenance of law and order, and while follows
the emergency
that the remains,
power and theprerogative
citizens must,to determine whether the situation warrants a
under pain of arrest and punishment, not act in a manner that will render it more difficultwhether
to restore theorder
and enforce
demandsthe law.122 As of the privilege of the writ of habeas corp
such, their exercise requires more stringent safeguards by the Congress, martial andlaw, also
lies, at byleast the
initially, with123
Court. the President. The power to choose, initially,
wield in a given set of conditions is a judgment call on the part of the President. As
b) What really happens during
enough to include martial
his prerogative to address law? exigencies or threats that endanger the
During the oral argument, the following questions cropped up: What really happens during the imposition of martial law? What
powers could the President exercise during martial law that he could not exercise if there It is thus
is nobeyond
law? thatInterestingly,
the powerthese of judicial review does not extend to calibrating
questions were also discussed by the framers of the 1987 Constitution, viz.:chanRoblesvirtualLawlibrary
extraordinary power to avail given a set of facts or conditions. To do so would be tan
FR. BERNAS. That same question was asked during the meetings of the Committee: What domain precisely
of thedoes
martial andlaw addan toinfringement
the on the prerogative that solely,
power of the President to call on the armed forces? The first and second lines in this provision state:chanRoblesvirtualLawlibrary
A state of martial law does not suspend the operation of the Constitution, nor supplant d) Thethe framers
of theof1987 the civil
courts orintended the Congress not to interfere a p
legislative assemblies . . . President.
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case of Aquino v. COMELEC where
the Supreme Court said that in times of martial law, the President automatically has legislative
The elimination
power. Sobythese
the framers
two clausesof thedenied
1987 Constitution of the requirement of prior
imposition of martial law or suspension of the privilege of the writ of habeas corpus further supports the conclusion that judicial
review does not include the calibration of the President's decision of which of his graduated
x powers will be availed of in a givenx
situation. Voting 28 to 12, the framers of the 1987 Constitution removed the requirement of congressional concurrence in the first
imposition of martial law and suspension of the privilege.133 MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legi
MR. PADILLA. x Chief x Executive x acting a

We all agree with the suspension of the writ or the proclamation of martial law should MR.
not require
I would
the concurrence
be less comfortable
of if we have a presidency th
the majority of the Members of the Congress. However, as provided by the Committee, the Congress may revoke, amend, or shorten
or even increase the period ofMR. SUAREZ. such But he suspension.
can act 134 with the concurrence of the

x x xMR. MONSOD. Yes. But when those situations x arise, it is very unlikely that the concur
secondly, the President will be able to act quickly in order
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial law there is no
need for concurrence of the Members of Congress because the provision says 'in caseMR. of actualSUAREZ.
invasion or rebellion.'
So, weIf therewould
is be subordinating actual
actual invasion and rebellion, as Commissioner Crispino de Castro said, there is a need for immediate response because there is an
attack. Second, the fact of securing a concurrence may be impractical because the roads MR.
be blocked
believe it is
x xexpediency
x So the when one is trying to protect the country
requirement of an initial concurrence of the majority of all Members of the Congress in Thecase
of an invasion
exchange orclearly
might bethe intent of the Constitution not to allow Co
impractical as I can choice see ofit. extraordina

Second, Section 15 states that the Congress may revoke thedeclaration

e) The Court must or similarly
lift the and necessarily
suspension.refrain from calibrating the President's decisi
to avail given a certain sit
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is subject to
judicial review at any point in time. So on that basis, I agree that there is no need for concurrence
It cannot as
prerequisite to declare
that time martial
is paramount in situations necessitating the proc
law or to suspend the privilege of the writ of
habeas of thecorpus.
writ of habeas
x corpus. x It xwas precisely this time element that prompted
the requirement of concurrence of the Congress in the initial imposition by the Pre
x x xprivilege of the writ of habeas corpus. Considering x that the proclamation of martial la
of habeas corpus is now anchored on actual invasion or rebellion and when public safety
in imminent danger thereof, there is a necessity you. and urgency for the President to act qu
Congress does, must thus accord the President the same leeway by not wading into t
The Commissioner is suggesting that in connection with Section 15, we delete the phrase Constitution
'and, with the concurrence of attoleast a the E
majority of all the Members of the Congress . . .'
f) The recommendation of the Defense Secretary is not a condition for the declaration of
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ
the of habeas corpus or also the writdeclaration of
of martial law.
Even the recommendation of, or consultation with, the Secretary of National Defense, o
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would becondition an exclusivefor prerogative
the President of to
martial law. A plain reading of Section 18, Ar
President's power to declare martial law is not subject to any condition except for the
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 daysand may that
the Congress
it. Besides,
or theit would be contrary to common sense if the
Senate because the next sentence says that the Congress or the Senate on maythe even
revoke theof his mere alter 136
proclamation. ego. Rightly so, it is only on the President and
the Commander-in-Chief under Section 18, Article VII of
x x x x
g) In any event, the President initially employed the most benign action - the calling out
MR. SUAREZ. x suspended x the privilegex of the writ

The Commissioner is proposing a very substantial amendment because this means that At hethis
is vesting
it must unto
be stressed
the President
that prior to Proclamation No. 216 or the decla
the right to determine the factors which may lead to the declaration of martial law and the President
had already
of the writ
of habeas
corpus. No. 55 on September 4, 2016, declaring a
I suppose he has strong and compelling reasons in seeking to delete this particular phrase. lawless Mayviolence
we beininformed
Mindanao. of his
goodin fact,
and is extant in the first Whereas Clause of Pro
substantial presidential actions, it can be gleaned reasons?that although there is no obligation or requir
powers on a graduated or sequential basis, still the President made the conscious an
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous benign interpellations
from amongregarding
his extraordinary
this phrase, powers.
even As the initial and preliminary step tow
during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation
of actual
in Mindanao,
invasion ortherebellion.
President Indecided
these to use his calling out power first. Unfortu
situations, the President has to act quickly. Secondly, this declaration has a time fuse. Itcontrary,
is only good
it only
for worsened.
a maximumThus, of 60exercising
days. At his sole and exclusive prerogative, the P
the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire
into thethesufficiency
privilege of the
the factual
writ of basis
habeasof corpus on the belief that the armed hostil
the proclamation always exists, even during rebellion
those first 60
and days. publip safety

x x xV. Whether or not Proclamation No. 216 xmay be considered vague and thus void b
groups"; and (b) the absence of any guideline specifying its actual operational para
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration in our history and national
consciousness. But given the possibility that there would be another Marcos, our Constitution
now has No. sufficient
216 is being
facially As
I on the ground of "vagueness" by
said, it is not really true, as the Gentleman mentioned, that there is an exclusive right groups" 139 in its
to determine theWhereas
factual basis
and forthelack of available guidelines specifying its actu
paragraph being on line 9 precisely tells us that the Supreme court may review, in an appropriate
region, filed
by anythecitizen,
the susceptible to broad interpre
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same within
This 30 days from argument
its filing. lacks

I believe that there are enough safeguards. The Constitution is supposed to balance thea)interests of the country. And here we are Void-for-vagueness
trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. x x x
The void-for-vagueness doctrine holds that a law is facially invalid if "men of commo
MR. SUAREZ. Will that prevent a future President from doingmeaning what andMr.differ Marcos
as to its application."
had done? 140 "[A] statute or act may be said to be vague

men of common intelligence must necessarily guess at its meaning and differ in its a
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. repugnant
What we to the
are Constitution
looking for are
in two
respects: (1) it violates due process for failure to ac
that are reasonable and, I believe, adequate at this point. On the other hand, in case of invasion
by it, fair
or notice
of the
during the
to avoid;
first 60and (2) it leaves law enforcers unbridled d
days when the intention here is to protect the country in that situation, it would be unreasonable
becomes to askanthat there should
be a flexing of the
concurrence on the part of the Congress, which situation is automatically terminated at the end of such 60 days.
b) Vagueness doctrine applies only in
could Proclamation
speech No. 216 be cases.
described as vague, and thus void, on the gro
actual operational parameters within the entire Mindanao region. Besides, operationa
The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes
free speech cases of or,
they are called In Part III, we declared that judicial review c
in American law, First Amendment cases.142 A facial challenge is allowed to be made to data
a vague
to orandknown
also toto one
the which
is prior to, or at the time of, the declarati
overbroad because of possible "'chilling effect' on protected speech that comes from statutes
in free
Part speech.
VII, theA person
review whowill be confined to the proclamation itself
does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking
in order to avoid being charged of a crime. The overbroad or vague Clearly, law thustherefore,
chills there
him isintono need for 143
silence." the Court to determine the constitutionalit
guidelines, general orders, arrest orders and other orders issued after the proclamation
It is best to stress that the vagueness doctrine has a special application only to free-speech
act committed
cases. They
underare thenotsaid
orders in violation
for of the Constitution and the laws, such
testing the validity of penal statutes.144 Justice Mendoza explained the reason as follows:chanRoblesvirtualLawlibrary
should be resolved in a separate proceeding. Finally, there is a risk that if the Court wa
A facial challenge is allowed to be made to a vague statute and to one which is overbroad trespassing
because ofintopossible
the 'chilling
sphereeffect'thatuponis reserved exclusively for Congress i
protected speech. The theory is that '[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent
VI. Whether
value toorallnotsociety
of constitutionally
Proclamation No. 216 will (a) have the effect of recalling
protected expression is deemed to justify allowing attacks on overly broad statutes with acts
no requirement
of the President
that the
in calling
personout making
the armed
the forces to quell lawless violence in Mara
attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to
society in permitting some unprotected speech to go unpunished is outweighed by the a) The
calling that
out power
the protected
is in a different
speech category
of from the power to declare martial la
others may be deterred and perceived grievances left to fester because of possible the inhibitory
writ effects
of habeas
of overly corpus;
broad statutes.
nullification of Proclamation No. 216 w

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem Theeffect
Court's resulting
ruling from
in thesetheir
not, in any way, affect the President's declaration
and, if facial challenge is allowed for this reason alone, the State may well be preventedof from
Mindanao socially
Proclamation No. 55 dated September 4, 2016,
conduct. In the area of criminal law, the law cannot take chances theasPhilippine in theNational area Policeof free(PNP) speech.
to undertake such measures to suppress any and a
region, and to prevent such lawless violence from spreading and esc
x x x x
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a differe
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
privilege offorthe testing
writ of 'onhabeas
their faces'
and the power to declare martial law:chanRoblesv
in free speech cases or, as they are called in American law, First Amendment cases. Theyxcannot x x Congress
be made mayto do
such when
what is or suspension and the Court may review
involved is a criminal statute. With respect to such statute, the established rule is that However,
'one to therewhomisapplication
no such equivalent
of a statuteprovision
is dealing with the revocation or revie
constitutional will not be heard to attack the statute on the ground that impliedly it might armed
also be forces.
takenTheas applying
to other
the calling out power in a different category from
or other situations in which its application might be unconstitutional.' As has been pointed powerout, to suspend
'vagueness thechallenges
privilege ofinthe
Firstof habeas corpus, otherwise, the framers of
Amendment context, like overbreadth challenges typically produce facial invalidation, while together
statutesthe found
three powers
vague asand a matter
of due
for their revocation and review without any qua
process typically are invalidated [only] 'as applied' to a particular defendant.' x x x145 In other words, the President may exercise the power to call out the Armed Forces i
Invalidation of statutes "on its face" should be used sparingly because it results in striking
down statutes
of the writentirely
of habeas
on thecorpus
groundand thatto declare martial law, although, of course, i
they might be applied to Rarties not before the Court whose activities are constitutionally exercise protected.146 "Such of invalidation the would latter powers, as
constitute a departure from the usual requirement of 'actual case and controversy' and permit decisions to be made in a sterile
abstract context having no Even factual
so, the Court's review concreteness." 147
of the President's declaration of martial law and his
entails separate proceedings instituted for that
c) Proclamation No. 216 cannot be facially challenged using the vagueness doctrine.
As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. prevent
or suppress No. lawless
216 does violence,
not regulate
invasion or rebellion may only be examined by
speech, religious freedom, and other fundamental rights that may be facially challenged.exercised What it seeks withinto penalize
is conduct,
not limits or in a manner con
In Zamora, the Court categorically ruled that the Integrated Bar of the Philippines
As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation
requisitesNo. of locus
issued asby itthen
not able to show any specific injury which it had su
Gloria Macapagal-Arroyo declaring a state of national emergency, on ground of vagueness Joseph is uncalled
Estrada'sforordersince deploying
a plain reading
the of Philippine Marines to join the PNP in v
Proclamation No. 1017 shows that it is not primarily directed at speech or even speech-related conduct. It is actually a call upon the
Armed Forces of the Philippines (AFP) to prevent or suppress all forms of lawless violence. This
standi requirement,
No. 1017, Proclamation
however, need not be complied with in so far as the Co
No. 216 pertains to a spectrum of conduct, not free speech, which is the manifestly
factual basissubjectof the
to state
declaration of martial law or suspension of th
concerned. In fact, by constitutional design, such review may be instituted by any citiz
d) Inclusion of "other rebel groups" does not make prove Proclamation
that he or she No.stands 216to sustain
vague.a direct and personal injury as a consequ

The contention that the phrase "other rebel groups" leaves Proclamation No. 216 openBut,
to broad
even assuming
that the Court finds no sufficient basis for the declaration
and confusion, cannot not be affect the President's
exercise of his calling out powe

In People v. Nazario,150 the Court enunciated that:chanRoblesvirtualLawlibrary b) The operative

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of common intelligence must
necessarily guess at its meaning and differ as to its application.' It is repugnant to the Constitution
Neither would in twotherespects:
(1) itofviolates
due No. 216 result in thcl nullification of the
process for failure to accord persons, especially the parties targetted by it, fair notice ofUnder
the conduct
the "operative
to avoid; and fact (2)
it leaves the
law unconstitutional statute is recognized as
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of 158
unconstitutional. the Government muscle.
Where the assailed legislative or executive act is found by the judiciary to be contrary t
But the act must be utterly vague on its face, that is to say, it cannot be clarified by eithernew
a saving
Civil Code
or byit:construction.
'When the courts Thus, in
declare a law to be inconsistent with the Co
Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made latter it
for 'three
or more persons
or executive
to acts, orders and regulations shall be v
assemble on any sidewalk and there conduct themselves in a manner annoying to persons laws or thepassing
by.' Clearly, Thetheaboveordinance
provision of the Civil Code reflects the orthodox
imposed no standard at all 'because one may never know in advance what annoys legislative some people or executive,
but does not is not
annoya law,
confers no rights, imposes no duties, and affo
qualifications, however. As the American Supreme Court stated: 'The actual existence o
Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is constitutionality],
evident on its face. is It
to be distinguished,
fact and may have consequences which cannot always
however, from legislation couched in imprecise language - but which nonetheless specifies effect
a standard
of the subsequent
though defectively
ruling asphrased
to the -invalidity may have to be considered in v
in which case, it may be 'saved' by proper construction.151 regulations, individual and corporate, and particular c
The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the words that accompany
it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in Proclamation
The orthodox No.view
55, which
finds support
it cited by in the
way well-settled
of doctrine that the Constitution is
reference in its validity
Whereasof legislative or executive acts. clauses.
Clearly then, neither the legislative nor the exec
this Court, has power under the Constitution to act contrary to its terms. Any attem
e) Lack of guidelines/operational parameters does not make provisions
Proclamation No.
is 216 to vague. that extent u
The growing awareness of the role of the judiciary as the governmental organ which hasathe final say level
on whether or that
not a legislative
is hard, if not
or executive measure is valid leads to a more appreciative attitude of the emerging concept that a declaration of nullity may have
legal consequences which the more orthodox view would deny. That for a period of timeBesides, such a statute,
the framerstreaty, of executive
the 1987 order,
or considered intelligencb reports of mil
ordinance was in 'actual existence' appears to be indisputable. What is more appropriate President
and logical
cah then appraise
than toand consider
to itwhich
as he can anchor his judgment,16
'an operative fact?'(Emphasis supplied)159
However, it must also be stressed that this "operative fact doctrine" is not a fool-proofAt shield
this that
it isrepulse
wise anyto challenge
quote thetopertinent portions of the Dissenting Op
acts performed during the effectivity of martial law or suspension of the privilege ofinthe Fortun:chanRoblesvirtualLawlibrary
writ of habeas corpus, purportedly in
furtherance of quelling rebellion or invasion, and promotion of public safety, President
when Arroyo
cannot showsbe blamed otherwise.
for relying upon the information given to her by t
Philippine National Police, considering that the matter of the supposed armed uprising
VII. The Scope of the Powerthat a state of emergency
to has alsoReview.
been declared in Central Mindanao to prevent la
massacre,' which may be an indication that there is a threat to the public safety
a) The scope of the power of review under the 1987 Constitution refers only to the determination
suspension of the sufficiency of the factual of t
basis of the declaration of martial law and suspension of the privilege of habeas corpus.
Certainly, the President cannot be expected to risk being too late before declaring m
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang, which
was decided as couched,
under thedoes1935not require precision in establishing the fact
Constitution,161 held that it can inquire into, within proper bounds, whether there has public been adherence to or168compliance with the
safety requires.
constitutionally-imposed limitations on the Presidential power to suspend Corollary, the privilegeas the President
of the iswrit expected
of habeas
to decide quickly on whether there is a need to p
corpus.162 "Lansanglimited the review function of the Court to a very prudentially narrow intelligencd
test reports,
of arbitrariness." 163
it is irrelevant,Fr.for
purposes of the Court's review, if subsequent e
described the "proper bounds" in Lansang as follows:chanRoblesvirtualLawlibrary accurately reported
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer that its power was
'merely to check not to supplant the Executive, or to ascertain merely whether he has After gone beyond
all, the theCourt's
review is limits
of his
to the sufficiency, not accuracy, of the info
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. suspension;
More specifically,
subsequent theevents
Court do
its any bearing insofar as the Court's review i
power was not 'even comparable with its power over civil or criminal cases elevatedSection thereto18, byArticle
appealVII. .of. the
in which
cases theare in place to cover such a situation, e.g., the
appellate court has all the powers of the court of origin,' nor to its power of quasi-judicialCongress
may choose decisions
to revoke
immediately after the proclamation is made;
is limited to asking whether 'there is some evidentiary basis' for the administrative finding.background
Instead, the Court accepted the Solicitor of the
General's suggestion that it 'go no further than to satisfy [itself] not that the President's decision is correct and that public safety was
endangered by the rebellion and justified the suspension of the writ, but that in suspending Hence, the themaxim
writ, thefalsus
in uno, did
notinactomnibus finds no application in this case. Fa
arbitrarily.'164 facts stated in the proclamation and the written report are not enough reasons for th
Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, bysuspension providing onlyas long
for asjudicial
are other
onin the proclamation and the written Report
th determination of the sufficiency of the factual bases, has in fact done away with the actual
test of arbitrariness
invasion asorprovided rebellion
in Lansang.
and that public safety requires

b) The "sufficiency of factual

In sum, the Court'sbasis
power to review is limited
test". to the determination of whether the Presi
the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our revi
Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 whether
the President
are presumed
acted within
to know
the bounds
the set by the Constitution, i.e., whether th
prevailing jurisprudence at the time they were drafting the Constitution. Thus, the phrase time
of the declaration
of factual basis"
or suspension
in Sectionare
18,sufficient for him to declare martial law or
Article VII of th Constitution should be understood as the only test for judicial review of the
President's power to declare martial law
and suspend the privilege of the writ of habeas corpus under Section 18, Article VII of the Constitution. The Court does not need to
satisfy itself that the President's decision is correct, rather it only needs to determine whether
President's for
had sufficient
the sufficiency of the factual basis for the declar
factual of the privilege bases. of the writ

We conclude, therefore, that Section 18, Article VII limits the scope of judicial review bya)the introductionActual of the "sufficiency
invasion of the or rebellion, and
factual basis" test.
Section 18, Article VII itself sets the parameters for determining the sufficiency of the fa
As Commander-in-Chief, the President has the sole discretion to declare martial law and/or and/or to thesuspend
suspensionthe privilege
of the privilege
of the of writthe writ of habeas corpus, "namely (1) actua
of habeas corpus, subject to the revocation of Congress and the review of this Court. requires
Since the exercise of of such
powers 170isWithout
a the concurrence of the two condition
judgment call of the President, the determination of this Court as to whether there is sufficient
and/or factual suspension
basis for theof exercise theof such, privilege of the writ of habeas
must be based only on facts or information known by or available to the President at the time he made the declaration or
suspension, which facts or information are found in the proclamation as well as the written As a general
Report submitted
rule, a word byused
him in to aCongress.
statute which has a technical or legal meaning, is co
These may be based on the situation existing at the time the declaration was made ormeaning. past events.171 Since
As tothehowConstitution
far the past didevents
not define the term "rebellion," it must be unders
should be from the present depends on the President. Past events may be consideredofas justifications "rebellion"
for the declaration and/or in the Revised
suspension as long as these are connected or related to the current situation existing at the time of the declaration.
During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then C
As to what facts must be stated in the proclamation and the written Report is up to the President. 165 As Commander-in-Chief,
actual rebellion as one defined under he Article
has 134 of the RPC:chanRoblesvirtualLawlibrary
sole discretion to determine what to include and what not to include in the proclamationMR. andDE theLOS
REYES. Report
As I see
it now,
Committee envisions actual rebellion and no lon
the urgency of the situation as well as national security. He cannot be forced to divulge mean thatintelligence
there should
reportsbe actual
and confidential
shooting or actual attack on the legislature or Malacañ
information that may prejudice the operations and the
safety event of - this the
Manila Hotelmilitary.
incident, everybody knows what happened. W
act of
Similarly, events that happened after the issuance of the proclamation, which are included in the written report, cannot be
considered in determining the sufficiency of the factual basis of the declaration of martialMR.lawREGALADO.
and/or the Ifsuspension
we consider of the definition
privilege of rebellion under Articles 134 and 135 of
of the writ of habeas corpus since these happened after the President had already issued actual
proclamation. of men
If atinall,
armed may public
be uprising for the purposes mentioned in Ar
used only as tools, guides or reference in the Court's determination of the sufficiency ofArticle
basis, x173not as part or component
x xbut
of the portfolio of the factual
Thus, rebellion as mentioned basis in the Constitution
itself. could only refer to rebellion as define
different definition would not only create confusion but would also give the Presiden
In determining the sufficiency of the factual basis of the declaration and/or the suspension,
abused the Court - shoulda look intosituation the full that the Constitution
complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness
of the facts stated in the proclamation and in the written Report as the President couldArticle
not be134 expected
of the RPCto verify
the accuracy and
veracity of all facts reported to him due to the urgency of the situation. To require precision
Art. 134.
in theRebellion
or insurrection;
appreciation Howof facts
committed. - The crime of rebellion or insurrecti
would unduly burden him and therefore impede the process of his decision-making. Such armsa requirement
against the Government
will practically fornecessitate
the purpose of removing from the allegiance to said
the President to be on the ground to confirm the correctness of the reports submitted Philippine
to him Islands
withinora any
only of theany body of land, naval or other armed f
circumstances obtaining would be able to dictate. Such a scenario, of course, would notLegislature,
only place the wholly
or partially,
in peril
of any
but of
wouldtheir powers or prerogatives.
also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow Thus, thefor words
rebellion of Justice
to exist,Antonio
the following
T. Carpio elements must be present, to wit: "(1) there
in Fortun, to "immediately put an end to the root cause of the emergency".166 Possibly, by against
the time thetheGovernment;
President is and satisfied
(2) the
the of the uprising or movement is eithe
correctness of the facts in his possession, it would be too late in the day as the invasion Government
or rebellion could or its have
(i) the territory
escalatedoftothe Philippines or any part thereof; or (ii) any
or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives." 175
f) Capability of the Maute Group and other rebel groups to sow terror, and cause deat
b) Probable cause is the allowable standard of del Sur
but also for
in other parts
the of Mindanao;

In determining the existence of rebellion, the President only needs to convince himself andthat
to Congress:
or evidence
showing that more likely than not a rebellion was committed or is being committed. 176 To 1. require him to satisfy a higher standard of Zamboanga
proof would restrict the exercise of his emergency powers. Along this line, Justice Carpio, in his Dissent in Fortun v. President
Macapagal-Arroyo, concluded that the President needs only to satisfy probable cause as 2. the standard of proof in determining the Davao
existence of either invasion or rebellion for purposes of declaring martial law, and that probable cause is the most reasonable, most
practical and most expedient standard by which the President can fully ascertain the 3. existence or non-existence of rebellion Mamasapano
necessary for a declaration of martial law or suspension of the writ. This is because unlike other standards of proof, which, in order
to be met, would require much from the President and therefore unduly restrain his exercise 4. Cotabato
of emergency
bombings; 188
powers, the requirement
of probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts and circumstances without resorting
to the calibration of the rules of evidence of which he has no technical knowledge. He [merely]
5. relies on common sense [and] Sultan
xxx Kudarat
needs only to rest on evidence showing that, more likely than not, a crime has been committed x x x by the accused." 177
6. Sulu
To summarize, the parameters for determining the sufficiency of factual basis are as follows: 1) actual rebellion or invasion; 2) public
safety requires it; the first two requirements must concur; and 3) there is probable cause 7. Basilan President 191
for thebombings; to believe that there is
actual rebellion or invasion.
8. Attempt to capture Hapilon was confronted with armed resistance, by combined force
Having laid down the parameters for review, the Court shall now proceed to the core of the controversy - whether Proclamation No.
216, Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas 9. Escalation
Corpus inofthearmed
of Mindanao,
against the government troops;193
sufficient factual basis.
10. Acts of violence directed not only against government authorities and establishment
IX. There is sufficient factual basis for the declaration of martial law and the suspension of the writ of habeas corpus.
11. Takeover of major social, economic and political foundations
At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of accuracy or veracity of the facts
upon which the President anchored his declaration of martial law or suspension of the privilege
12. The ofobject
the writ
of the
of habeas
was to lay the groundwork for the establishm
only the sufficiency of the factual basis as to convince the President that there is probable cause that rebellion exists. It must also be
reiterated that martial law is a matter of urgency and much leeway and flexibility should 13.beMaute
Group thehas
263 active such, he isarmed and combat ready;197
not expected to completely validate all the information he received before declaring martial law or suspending the privilege of the
writ of habeas 14. Extensive networks linkages of thecorpus. Maute Group with foreign and local armed group

We restate the elements of rebellion for reference:chanRoblesvirtualLawlibrary 15. Adherence of the Maute Group to the ideals espoused by ISIS;199
1. That there be (a) public uprising, and (b) taking up arms against the Government; and
16. Publication of a video showing Maute Group's declar
2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said Government or its laws the
territory of the Philippines or any part thereof, or any body of land, naval or other armed17.
or (b) to deprive terrorist
the Chief Executive
groups provide financial and logistical
or Congress, wholly or partially, of any of their powers or prerogatives.178
Petitioners concede that there is an armed public uprising in Marawi City.179 However, they18. Events
insist on
in MarawidoCity,
constitute rebellion in the absence of the element of culpable political purpose, i.e., the removal from the allegiance to the
Philippine Government or its laws: (i) the territory of the Philippines or any part thereof;
a) at
or 2:00
(ii) any
of land,and
or other of the Maute Group and ASG attacked
of any 202
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially,facilities; of their powers and prerogatives.

The contention lacks

b) at 4:00 PM, around fifty (50) armed merit.
criminals forcibly entered the Marawi City Jai
member of PDEA; assaulted and disarmed on-duty personnel and/or locked them inside
a) Facts, events and information upon which the President anchored his decision to declare
law and
and suspend 203 privilege of
the writ of habeas corpus.
c) by 4:30 PM, interruption of power supply; sporadic gunfights; city wide power outage
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM,180 the Court will consider only those facts
and/or events which were known to or have transpired d) from
on 6:00orPM tobefore
7:00 PM, Maute
that Grouptime,ambushed and burned the Marawi Police Sta

consistent with the scope of judicial review. Thus, the following facts and/or events were
e) deemed
BJMPto havepersonnel
been consideredevacuated
by the the Marawi City Jail
President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself:
f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was
1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account of lawless violence in
Mindanao;181 g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi

2. Series of violent acts182 committed by the Maute terrorist group including: h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns'
a) Attack on the military outpost in Butig, Lanao del Sur in February 2016,Moncado
killing and
Colony; 209
wounding several soldiers;

b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute Group
i) taking
hostages from the church;210

3. On May 23, 2017:183 j) killing of five faculty members of Dansalan College Foundation;211
a) Takeover of a hospital in Marawi;
k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary
b) Establishment of several checkpoints within Marawi;
l) overrunning of Amai Pakpak Hospital;213
c) Burning of certain government and private facilities;
m) hoisting the ISIS flag in several areas;214
d) Mounting casualties on the part of the government;
n) attacking and burning of the Filipino-L
e) Hoisting the flag of ISIS in several areas; and
o) ransacking of a branch of Landbank of the Philippines and commandeering an armoredinvehicle; 216
x x x [T]he Constitution does not compel the President to produce such amount of
p) reports regarding Maute Group's plan incapacitate
to execute Christians;217
her from exercising

q) preventing Maranaos from leaving

Definitely, the President
their gather 218
need not homes; proof beyond reasonable doubt, which is the
accused charged with a criminal o
r) forcing young Muslims to join their group;219 and
x x
s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City, seizing public and
private facilities, perpetrating killings of government personnel, and committing armedProofuprising
and opendoubt
is the
of highest
the quantum of evidence, and to require
Government.220 rebellion or invasion with such amount of proof before declaring martial law or sus
restriction on 'the President's power to act as to practically tie her hands and disable
b) The President's against threats
Conclusion to

After the assessment by the President of the aforementioned facts, he arrived at the Neither
clear and
mentioned which
in is employed in either criminal or civil case
Proclamation No. 216 and martial law orthe
suspension of the writ.Report:
This amount of proof likewise unduly restrains
powers, as it requires proof greater than preponderance of evidence al
1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and
deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land
to maintain
public order
of evidence,
and safety
in is the degree of proof necessary in civil ca
Mindanao, constituting the crime martial of rebellion."221

2) "[L]awless armed groups have taken up arms and committed public uprising against thex duly constituted government and againstx
the people of Mindanao, for the purpose of removing Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance
to the Government and its laws and depriving the Chief Executive of his powers and prerogatives
the laws
of the
of the
land and
on hand, from at least two opposing sides, b
to maintain public order and safety in Mindanao, to the great damage, prejudice, andsuspend
detriment of the people writtherein andunreasonably
the curtails the P
nation as a whole."222
Similarly, substantial evidence constitutes an unnecessary restriction on the President'
3) The May 23, 2017 events "put on public display the groups' clear intention to establish
an Islamic
is theState
requiredtoin administrative or quasi-judicial cases, or
deprive the duly constituted authorities the President, foremost - ofreasonable their powers mind and prerogatives."
might 223 accept as adequate

4) "These activities constitute not simply a display of force, but a clear attempt to establish
I amthe
of groups'
the viewseat
power incause
of the
Cityexistence of either invasion or rebellion suff
for their planned establishment of a DAESH wilayat or province valid
covering the
entire Mindanao."
of martial law and sus

5) "The cutting of vital lines for transportation and power; the recruitment of young Probable
Muslims to cause
is theexpand
same amount
their ranks
of proof
and required for the filing of a criminal inform
strengthen their force; the armed consolidation of their members throughout Marawi City;
of anthe
warrantofbya asegment
judge. Probable
of the citycause has been defined as a 'set of facts an
population who resist; and the brazen display of DAESH flags constitute a clear, pronounced,
prudent manintent
to believe
to remove
that the offense charged in the Information
Marawi City, and eventually the rest of Mindanao, from its committed allegiance to theby Government." the225 person sought

6) "There exists no doubt that lawless armed groups are attempting to deprive the In determining
President ofprobable
his power,
the average
and man weighs the facts and circumstances
prerogatives within Marawi City as a precedent to spreading their control over the entirerules
of evidence
in an of
which to
has no technical
his knowledge. He relies on common sense
control over executive departments, bureaus, and offices in said area; defeat his mandaterest ontoevidence
ensure that
all laws
likely than not, a crime has been committed a
executed; and remove his supervisory powers Probable
over cause
local demands governments."
more than suspicion; it requires less than ev

7) "Law enforcement and other government agencies now face pronounced difficulty sending
to the
Chief Executive
on common sense, is the most reasonable, most prac
due to the city-wide power outages. Personnel from the BJMP have been prevented from the performing
President can their
the existence
the or non-existence of rebellion, necessary fo
attack and occupation of several hospitals, medical services in Marawi City have beenc) adversely affected. Inaccuracies,
The bridge and road simulations, falsities,
blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop
reinforcements have been hampered, preventing the government from restoring peaceThe andallegation
order in thein thearea.
boththe facts stated in Proclamation No. 216 and
civilians and government personnel to and from the and/or
city hyperbolic,
is likewise
does not persuade. As 227
hindered." mentioned, the Court is not concerned about
of the facts because to do so would unduly tie the hands of the Presiden
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal
drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao,
it alleges
resulted thatinthe
facts are not true as shown by its counter-eviden
of public order and safety in Marawi City; they have likewise compromised the security of the entire Island of Mindanao." 228
9) "Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the
siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control(1)over
Maute ofgroup attacked
Mindanao. Amai Pakpak Hospital and
These Statements
hoisted people
circumstances demand swift and decisive action to ensure the safety and security of the Filipino the DAESH flag there,
and preserve our among
nationalseveral locations. As of (a) Dr. Ame
integrity."229 0600H of 24 May 2017, members of the Maute Group were seen (b) Health
guarding the entry gates of the Amai Pakpak Hospital and that (c) PNP Spoke
Thus, the President deduced from the facts available to him that there was an armed public they held hostage
uprising, the employees
the culpable purpose of of the Hospital and took over
which (d) AFP Public A
was to remove from the allegiance to the Philippine Government a portion of its territory the
and PhilHealth
to deprive office located
the Chief thereat
Executive (Proclamation No. 216 and
of any (e) Marawi City
of his powers and prerogatives, leading the President to believe that there was probable cause that the crime of rebellion was and is hospital was at
being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas news articles o
corpus. Radyo.232

A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing
2. that Proclamation
the Maute No. 216,and
Group ambushed had
burned the Marawi Police Statements ma
sufficient factual bases tending to show that actual rebellion exists. The President's conclusion, that there was
Station (Proclamation armed
216 public
and the Report); Rosa and Maraw
uprising, the culpable purpose of which was the removal from the allegiance of the Philippine Government a portion of its territory line news re
and the deprivation of the President from performing his powers and prerogatives, was reached after a tactical consideration of the Philippines233de
facts. In fine, the President satisfactorily discharged his burden of proof. Marawi Police S

After all, what the President needs to satisfy is only the standard of probable cause for
3. athat
valid declaration
lawless armed of martial
groups law and
likewise ransacked the Landbank of Statement mad
suspension of the privilege of the writ of habeas corpus. As Justice Carpio decreed in his Dissent
the Philippines and commandeered one of its armored vehicles article of Philstar234 that the Marawi City branch was not
XI. Whole of
(Report); ransacked but sustained damages from the attacks.
a) The overriding and paramount concern of martial law is the protection of the security
4. that the Marawi Central Elementary Pilot School was burned Statements in the on-line news article ofPhilstar235 made
(Proclamation No. 216 and the Report); by the Marawi City Schools Division Assistant
Superintendent Considering
Ana Alonto denying that and
the nation's the school was traumatic experience of martial law under
its people's
burned and Department
framers ofof the
Education Assistant Secretary
1987 Constitution to stop at nothing from not resuscitating the law.
Tonisito Umali stating
writers that they have
entertained not received
no doubt anynecessity and practicality of such specie of
about the
report of damage.
bestowed on the Commander-in-Chief the power to declare martial

5. that the Maute Group attacked various government facilities Statement in theIndeed,
news article ofthe
Inquirer 236 made
law and suspension of the privilege of the writ of habeas corpus are
(Proclamation No. 216 and the Report). by Marawi City ofMayor Majul Gandamra stating
the nation; suspension of the privilege that theof the writ of habeas corpus is "precautionary,
ASG and the Maute Terror Groups
of individuals, [it] is have
for tlienot taken over
purpose of defending and protecting the security of the st
any governmentpeople".
facility in253Marawi City. Ople referred to the suspension of the privilege of the writ of
or "as a means of immobilizing potential internal enemies" "esp
However, the so-called counter-evidence were derived solely from unverified news articles on the internet, with neither the authors
nor the sources shown to have affirmed the contents thereof. It was not even shown Asidethatfromefforts were made
protecting to secure
the security such
of the country, martial law also guarantees and pro
affirmation albeit the circumstances proved futile. As the Court has consistently ruled,that
news articlesalone
rebellion are hearsay
does not evidence,
justify thetwice
declaration of martial law or suspension of th
removed, and are thus without any probative value, unless offered for a purpose other publicthan proving the truth of the matter
safety requirement must lik
asserted.237 This pronouncement applies with equal force to the Cullamat Petition which likewise submitted online news articles 238as
basis for their claim of insufficiency b) As Commander-in-Chief,
of factualthe President basis.
receives vital, relevant, classified, and live infor
Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in these cases. As long as there are
other facts in the proclamation and the written Report indubitably showing the presenqe In of an actual
Parts IX andinvasion or rebellion
X, the Court and that
laid down the arsenal of facts and events that formed t
public safety requires the declaration and/or suspension, the finding of President, sufficiency of factual
the totality of factsbasis, stands.
and events, more likely than not, shows that actual rebell
declaration of martial law and suspension of the privilege of the writ of habeas corpus. O
d) Ruling in Bedol v. Commission on
thereElections not that actual
is probable cause applicable.
rebellion exists and public safety warrants the issu
Court notes that the President, in arriving at such a conclusion, relied on the facts and e
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be admitted on grounds of relevance,
trustworthiness, and necessity. Petitioners' reliance on this case is misplaced. The Court in Bedol made it clear that the doctrine of
independent relevant statement, which is an exception to the hearsay rule, appliesToinbe cases
sure,"where onlymentioned
the facts the fact that
in thesuch
Proclamation and the Report are far from be
statements were made is relevant, and the truth or falsity thereof is immaterial." 240 juncture, it may not be amiss to state such
Here, the question is not whether that as Commander-in-Chief, the President ha
statements were made by Saber, et al., but rather whether what they said are true. Thus, contrary
classified to the view ofthe
as "confidential", petitioners,
contents the
of which cannot be included in the Proclamatio
exception in Bedol finds no Theseapplication
documents may contain information here. detailing the position of government
ammunitions, ground commands and operations, names of suspects and sympathizers
e) There are other independent facts which support the finding that, more likely than held not, by
rebellion existssome
the Court, and information
that public safety
came to light, although not mentioned in the P
requires discretion whether to include the same in it. the Proclamation or Report is the judgme
concede to this. During the oral argument, petitioner Lagman admitted that "the assert
Moreover, the alleged false and/or inaccurate statements are just pieces and parcels ofis the Report; along with thethese alleged false call of
data is an arsenal of other independent facts showing that more likely than not, actual rebellion exists, and public safety requires the
declaration of martial law or suspension of the privilege of the writ of habeas corpus. It isTobeyond
be precise,
cavil the
thatalleged false and/or
the President can rely on intelligence reports and classifie
inaccurate statements are only five out of the several statements bulleted in the President's Report. Notably, in the
[C]ommander-in-[C]hief interpellation
of the by to appraise these [classified evidence or d
Armed Forces
Justice Francis H. Jardeleza during the second day of the oral argument, petitioner Lagmanpublicadmitted
safety that he
demands was
thenot aware
suspensionor that
of the writ."256 Significantly, respect to these so-
he had no personal knowledge of the other incidents cited.241 As it thus stands, there is no question[the]
"when or challenge with respect
authors of to orthe witnesses to these documen
reliability of the other incidents, which by themselves are ample to preclude the conclusion that the President's report is unreliable
and that Proclamation No. 216 was without In fine,sufficient
not only does thefactual
President have basis.
a wide array of information before him, he also
access vital, relevant, and confidential data, concomitant with his position as C
Verily, there is no credence to petitioners' claim that the bases for the President's imposition of martial law and suspension of the
writ of habeas corpus were mostly inaccurate, simulated,c) The Court
false has noand/or
machinery orhyperbolic.
tool equal to that of the Commander-in-Chief to ably
X. Public safety requires the declaration of martial law and the suspension of the privilege of thethe
In contrast, writ of habeas
Court does notcorpus
have inthethe
same resources available tp the President. H
whole of constitutional lapse. On the contrary, Mindanao.
this is in line with the function of the Court, pa
sufficiency of factual basis of Proclamation No. 216. As thoroughly discussed in Part
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration
sufficiency of martial
of factual basislaw
mustor be
limited only to the facts and information mentioned
of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of the privilege of the writ of habeas 258 cautioned not to "undertake an indep
Court, in David v. President Macapagal-Arroyo,
corpus to be valid, there must be a concurrence of actual rebellion or invasion and the public
In thissafety
"the Court willIn his Report,
have the
to rely on the fact-finding capabilities of the [E]xecu
President noted that the acts of violence perpetrated by the ASG and the Maute Group Department
were directedwill nothave
only against government
to open its findings to the Court,260 which it did during the
forces or establishments but likewise against civilians and their properties. In addition and in relation to the armed hostilities,
bomb threats were issued;243 road blockades and checkpoints were set up;244 schools andd)churches
The 1987were burned;245grants
Constitution civiliantohostages
the President, as Commander-in-Chief the discreti
were taken and killed;246 non-Muslims or Christians were targeted;247 young male Muslims were forced
application to
of joinmartial 248 medical
their group;law or suspension of the privilege o
services and delivery of basic services were hampered;249 reinforcements of government troops and civilian movement were
hindered; and the security of the entire Mindanao Section Island was compromised. 251
18, Article VII of the Constitution states that "[i]n case of invasion or rebelli
President] may x x x suspend the privilege of writ of habeas corpus or place the Philipp
These particular scenarios convinced the President that the atrocititts had already escalated to athe
Clearly, level that risked grants
Constitution public safety
to theand President the discretion to determine the t
thus impelldd him to declare martial law and suspend the privilege of the writ of habeassuspension
corpus. In the lastprivilege
of the paragraph of his
of the Report,
writ of habeas corpus. He may put the entire Philippin
the President declared:chanRoblesvirtualLawlibrary
While the government is presently conducting legitimate operations to address the on-going This isrebellion, if not the seeds ofand
both an acknowledgement invasion,
a recognition that it is the Executive Department,
public safety necessitates the continued implementation of martial law and the suspension Chief, of
who theis privilege
the of theofwrit
repository ofclassified,
vital, habeas and live information necessary for and rel
corpus in the whole of Mindanao until such time that the rebellion is completely quelled.of martial law and the suspension of the privilege of the writ of habeas corpus. It, too
Based on the foregoing, we hold that the parameters for the declaration of martial lawtactical
and suspension
and military of the privilegeand
support, of the
has a more informed understanding of wh
of habeas corpus have been properly and fully complied with. Proclamation No. 216 has Constitution
sufficient factual basis there being probable
imposed a limitation on the period of application, which is 60 days, unles
cause to believe that rebellion exists and that public safety requires the martial larv declaration
not on theand the suspension
territorial scope orofarea
the of
coverage; it merely stated "the Philippines or any
of the writ of habeas corpus.
of the President.
Neither could it be validly argued that the armed contingent positioned in PGH or MSHS
e) The Constitution has provided sufficient safeguards against possible abuses of Commander-in-Chief's
no publicity in their powers;acts further
as, in fact,curtailment
they were merely lurking inside the compound of P
of Presidential powers should not only be discouraged
out that for thebut crime of also rebellion toavoided.
be consummated, it is not required that all armed
in this case, the Court's compound, and publicly rise in arms against the government for
Considering the country's history, it is understandable that the resurgence of martial lawsuffices
would engender
that a portion apprehensions
of the contingent
the and formed a mass or a crowd and eng
citizenry. Even the Court as an institution cannot project a stance of nonchalance. However, government.the importance
Similarly, it ofcannot
martialbe lawvalidly
in the concluded that the grounds on which the arm
context of our society should outweigh one's prejudices and apprehensions against it. The be the
measureofofmartialthe extent,law should
scope or notrange,
be of the actual rebellion. This is logical sinc
undermined by unjustified fears and past experience. After all, martial law is critical and or crucial
elsewhere, to the whose
of public didsafety,
not involve the publicity aspect of rebellion, may
the preservation of the nation's sovereignty and ultimately, the survival of our country.ofIt is vital for the protection of the country
not only against internal enemies but also against those enemies lurking from beyond our shores. As such, martial law should not be
cast aside, or its scope and potency limited and diluted, based on bias Proceedingand from unsubstantiated
the same illustration,
assumptions. suppose we say that the President, after find
rebellion that public safety requires it, declares martial law and suspends the writ of h
Conscious of these fears and apprehensions, the Constitution placed several safeguardscould which effectively
we then
wateredsay down that the power the territorial coverage of the
to declate martial law. The 1987 Constitution "[clipped] the powers of [the] Commander-in-Chief because of [the] experience with
the previous regime."261 Not only were the grounds limited to actual invasion or rebellion, To answer
but its duration
this question,was likewise
we revert fixed
backatto60the premise that the discretion to determine
days, unless sooner revoked, nullified, or extended; at the same time, it is subject to the thevetoPresident.
powersThe of Constitution
the Court and grants
him the prerogative whether to put the entire P
law. There is no constitutional edict that martial law should be confined only in the part
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted actually transpired.
his colleagues Thisinis the
only practical but also logical. Martial law is an urgent me
Convention to look at martial law from a new perspective by elaboratingsovereignty on the and sufficiency
survival. of As such,
the proposed
the President has to respond quickly. After the rebe
safeguards:chanRoblesvirtualLawlibrary wait for another rebellion to be mounted in Quezon City before he could impose mar
MR. MONSOD. x President would x have to wait until every remote x corner in the country is infested with r
the entire Philippines. For sure, this is not the scenario
Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a fixed period not exceeding 60
days, which is subject to judicial review, is going to result in numerous violations ofhuman Going rights,
backthe to the
illustration above,
of the military
although the President is not required to impose m
forever and in untold sufferings. Madam President, we are talking about invasion and rebellion.
because itWe is where
may not thehave
armed anypublic
freedom uprising
to actually transpired, he may do so if he se
speak of after 60 days, if we put as a precondition the concurrence of Congress. That might precluded
preventfrom the President
expanding fromtheacting
coverage at that
of martial law beyond the Court's compound
time in order to meet the problem. So I would like to suggest that, perhaps, we should look predetermined
at this in its proper perspective. We are
only looking at a very specific case. We are only looking at a case of the first 60 days at its maximum. And we are looking at actual
invasion and rebellion, and there are other safeguards in those cases.262 Public safety, which is another component element for the declaration of martial law,
Even Bishop Bacani was convinced that the 1987 Constitution hrs enough safeguards against from presidential
events that could abusesendanger
and commission
the safety ofof the general public from significant dange
human rights violations. In voting yes for the elimination of the requirement pf prior disasters."
concurrence Public
of Congress,
safety is an Bishop
abstract Bacani
term; it does not take any physical form. Plai
stated, viz.:chanRoblesvirtualLawlibrary physically measured by metes
BISHOP BACANI. Yes, just two sentences. The reason I vote yes is that despite my concern for human rights, I believe that a good
President can also safeguard human rights and human lives as well. And I do not want Perhaps
to unduly anotheremasculate
reason why the the
of thescope of martial law should not necessarily b
President. x x x263 armed public uprising actually transpired, is because of the unique characteristic of r
Commissioner De los Reyes shared the same sentiment, to wit:chanRoblesvirtualLawlibrary consists of many acts. It is a vast movement of men and a complex net of intrigues a
MR. DE LOS REYES. May I explain my rebellion[,]
vote, thoughMadam crimes in themselves[,]
President.are deemed absorbed in one single crime o
committed in its pursuance".270 Direct assault,271 murder,272 homicide,273 arson,274 robbe
x x x The power of the President to impose martial law is doubtless of a very high and are delicate
absorbed Athe freecrime
people of are
naturally if committed in furtherance of rebelliop; "[
jealous of the exercise of military power, and the power to impose martial law is certainly felt to277be
charge." Jurisprudence
one of no ordinary also teaches
magnitude.that not only common crimes may be absorbed
But as presented by the Committee, there are many safeguards: 1) it is limited to 60 days; laws
2) Congress
[such as Presidential
can revoke it; Decree
3) theNo. 1829]278 which are perpetrated in furtherance of
Court can still review as to the sufficiency of factual basis; and 4) it does not suspend the punishable
operation under
of thea special
law orTo general
repeatlaw, which are mere components or ingred
what I have quoted when I interpellated Commissioner Monsod, it is said that the power become to impose
absorbed martial in the
law iscrime
of rebellion
to and cannot be isolated and charg
liberty and may be abused. All powers may be abused if placed in unworthy hands. But it would be difficult, we think, to point out
any other hands in which this power will be more safe and at the same time equally Thus, effectual.
by the When theory
of absorption,
of the Statethe arecrime
in of murder committed n Makati City, if
arms against each other and the constituted authorities are unable to execute the laws, rebellion
the actionbeing of thehypothetically
President must staged
be prompt
in Padre Faura, Ermita, Manila, is stripped of its
or it is of little value. x x x264 (Emphasis supplied) crime of rebellion. This all the more makes it difficult to confine the application of ma
At this juncture, it bears to stress that it was the collective sentiment of public the framers
uprising isofactually
the 1987 takingConstitution
place. In the illustration above, Padre Faura could only
that sufficientsafeguards against possible misuse and abuse by the Commander-in-Chiefthe of his extraordinary
same powers timeare already rebellion
in is also happe
place and that no further emasculation of the presidential powers is called for in the guise of additional safeguards. The Constitution
recognizes that any further curtailment, encumbrance, or emasculation of the presidential In fine, powers
it is difficult,
would not if notgenerate
impossible, any to good
fix the territorial scope of martial law in direct
among the three co-equal branches, and to the country and its citizens as a whole. Thus:chanRoblesvirtualLawlibrary
and public safety simply because rebellion and public safety have no fixed physiqal dim
MR. OPLE. The reason for my concern, Madam President, is that when we put all of defies these encumbrances
precise measurements; on the President
hence, the anddetermination of the territorial scope of mar
Commander-in-Chief during an actual invasion or rebellion, given an intractable Congress not fixed,
that may variables.
be dominated
The Constitution
by opposition must have considered these limitations when
parties, we may be actually impelling the President to use the sword of Alexander to flexibility
cut the Gordian in knot by just determining
declaring a the territorial sco
revolutionary government that sets him free to deal with the invasion or the insurrection. x x x265 (Emphasis supplied)
f) Rebellion and public safety; nature, Moreover, scope,
the President's andduty to maintain range.peace and public safety is not limited only to
extends to other areas where the present hostilities are in danger of spilling over. It is n
It has been said that the "gravamen of the crime of rebellion is an armed public uprising lawless
againstelements from Marawi266City,
the govemment;" andbut thatalso
by to avoid enemy reinforcements and to cut t
nature, "rebellion is x x x a crime of masses or multitudes, involving crowd action,ofthat Mindanao.
cannotThus, be confined
limiting the a priori,
within and/or suspension to the place where th
predetermined bounds."267 We understand this to mean that the precise extent or rangethe of thepurpose
rebellion couldof declaring
not be measured martial by law, it will make the exercis
exact metes and bounds.
g) The Court must stay within the
To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ennita, Manila where the Court's
compound is situated. They overpowered the guards, entered the Court's premises, and The hoisted
Court can theonly
Their themotive
confines was of its power. For the Court to overreach is to
political, i.e., they want to remove from the allegiance to the Philippine governmentpower a parttoofdetermine
the territory the ofscope
the ofPhilippines,
territorial application belongs to the President. "The
particularly the Court's compound and establish without
it violating
as theanprincipleISIS-territory.
of separation of powers, and, hence, undermining th

Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion,Tocould
we validly
the Court
say that
is notthe
is the competence and logistical machinery
confined only within the Court's compound? Definitely not. The possibility that thereplaces
are other
in the
efforts in
to the
the rebellion and restore peace. It would be eng
buildings or compound of the Philippine General Hospital (PGH) or the Manila Science High
a mission
be discounted.
the territorial metes and bounds of martial l
There is no way of knowing that all participants in the rebellion went andproclamation stayed insideof martial
the Court's
law none compound.
of the members of this Court could have divined th
forced to evacuate to Iligan and Cagayan de Oro and that the military would have to secure those places also; none of us could have
predicted that Cayamora Maute would be arrested in Davao City or that his wife Ominta i) Romato Maute Terrorism
would be apprehended neither
in negates nor
Masiu, Lanao del Sur; and, none of us had an inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would launch an attack in
Cotabato City. The Court has no military background and technical expertise to predict that. It is In
the insurgency
lacks the in Mindanao has be n ongoing for decade
technical capability to determine which part of Mindanao would best serve as forward operating
peaceful base
means, of the
their present
to violent extremism and terrorism. Rebellion ma
endeavor in Mindanao. Until now the Court is in a quandary and can only speculate whether which thehas
a broader
of Proclamation
covering a wide No. range of predicate crimes. In fact, rebellion
216 could outlive the present hostilities in Mindanao. It is on this score that the Court should
give can
the President
be committed.sufficient However,
leeway towhile the scope of terrorism may be comp
address the peace and order problem
defined. The objective in of a "terrorist"Mindanao.
is to sow and create a condition of widespread fea
government to give in to an unlawful demand. This condition of widespread fear
Thus, considering the current situation, it will not serve any purpose if the President is goaded
into using
to others. In contrast, the purpose of rebe
cut the Gordian knot"282 by attempting to impose another encumbrance; after all, "the declaration
(a) to remove of from
martial thelaw
or the suspension
to the Philippine Government or its laws: (i) the territ
of the privilege of the writ of habeas corpus is essentially
any body of land,an naval, executive
or armed forces; 283 (b) to deprive the Chief Executive or Congre
Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the President a nudge, so to speak, as
some sort of a reminder of the nation's experience under the Marcos-styled martial law. In determining
However, it iswhat not crime
fair towas
judge committed,
President we have to look into the main objective of
Duterte based on the ills some of us may have experienced during the Marcos-martial the law era.
At this
of point,
quotes theof Mindanao to the Philippine Government
insightful discourse of Commissioner Ople:chanRoblesvirtualLawlibrary rebellion. If, on the other hand, the primary objective is to sow and create a conditio
MR. OPLE. x panic amongx the populace in order to coerce x the government to give in to an unlawfu
have already explained and ruled that the President did not err in believing that what is
x x xunder the x crime

Madam President, there is a tendency to equate patriotism with rendering the executive In anybranch
the government
assuming that impotent,
the insurgency
as in Marawi City can also be character
though by reducing drastically the powers of the executive, we are rendering a service tomanner humanaffectwelfare.Proclamation
I think it is No. also216.important
Section 2 of Republic Act (RA) No. 9372, otherwis
to understand that the extraordinary measures contemplated in the Article on the Executive expresslypertain
provides to that
a practical
"[n]othing stateinofthiswarAct shall be interpreted as a curtailment,
existing in this country when national security will become a common bond of patriotism recognized
of all Filipinos,
of the executive
if it is an branch
actualof the government." Thus, as long as the Pre
invasion or an actual rebellion, and the President may have to be given a minimum flexibilitySection 18, to Article
cope with VII, the
such existence
of terrorism cannot prevent him from exercising hi
threats to the survival of a nation. I think the Commission has done so but at the samelaw time or has
not, in any themanner,
of the writ theof habeas corpus. After all, the extraordinar
task of putting these powers under a whole system of checks and balances, includinghim the possible
by therevocation Constitution.
at any time No of acta of Congress can, therefore,
proclamation of martial law by the Congress, and in any case a definite determination of these extraordinary powers, subject only to
another extension to be determined by Congress in the event that it is necessary to Besides,
do sotherebecauseis nothing
the emergency
in Art. 134 persists.
of the RPC and RA 9372 which states that rebellion a
other or that they cannot co-exist together. RA 9372 does not expressly or impliedly rep
So, I think this Article on the Executive for which I voted is completely responsible; it is is attuned
one ofto the freedom predicate andcrimes
the rights of ofterrorism, one cannot absorb the oth
the citizenry. It does not render the presidency impotent and, at the same time, it allows for a vigorous representation of the
people through their Congress when an emergency measure is in force and effect.284 Verily, the Court upholds the validity of the declaration of martial law and suspension of
h) Several local armed groups have formed linkages aimed at committing rebellion andthe acts in furtherance thereof in the whole entireof Mindan
At the end of the day, however ardently and passionately we may believe in the validity
With a predominantly Muslim population, Marawi City is "the only Islamic City of the South." causes285orOn principles
April 15,that 1980, weitespouse,
was conferredadvocate or champion, let us not forget that at t
the official title of "Islamic City of Marawi."286 The city's first name, "Dansalan," "was confronted
derived from withthea word
crisis of'dansal',
such magnitude
meaning aand proportion that we all need to summon
destination point or rendezvous. Literally, it also means arrival or coming." 287 Marawi nation,
lies in the heart if of we Mindanao. areIn fact,tothe overcome and prevail in
Kilometer Zero marker in Mindanao is found in Marawi City thereby making Marawi City the point of reference of all roads in
Mindanao. Let us face up to the fact that the siege in Marawi City has entered the second month
end. Let us take notice of the fact that the casualties of the war are mounting. To date,
Thus, there is reasonable basis to believe that Marawi is only the staging point of therebels rebellion, bothasfor symbolic against
and strategic 71 government troops
reasons. , Marawi may not be the target but the whole of Mindanao. As mentioned in the Report, "[l]awless armed groups have
historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor
Can we passages;"
not sheathe thereour is also
the plan
and topause for a while to bury our dead, i
establish a wilayat in Mindanao by staging the siege of Marawi. The report that prior to May 23, 2017, Abdullah Maute had already
dispatched some of his men to various places in Mindanao, such as Marawi, Iligan, and WHEREFORE,
Cagayan de Oro the forCourt
bombing FINDSoperations,
sufficient factual bases for the issuance of
carnapping, and the murder of military and police personnel,289 must also be considered. as Indeed,
there is some semblance Accordingly,
of truth the consolidated Peti
to the contention that Marawi is only the start, and Mindanao the end.
Other events also show that the atrocities were not concentrated in Marawi City. Consider these:
On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Sereno,
Uno, Lamita City, Basilan. C. A civilian was J., See
killed while another was wounded.290 Carpio, J., See
On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island, Taganak, Tawi-Tawi.291 Jr.,
Velasco, J., I concur. Please see
On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan resultingLeonardo-De in the death of Castro,two children andJ., the I concur in
wounding of three others.292 Peralta, J., See
From March to May 2017, there were eleven (11) separate instances of IED explosions Bersamin, by the BIFF in Mindanao. J., TheseI resulted inconcur. Please see
the death and wounding of several personalities.293 Mendoza, J., I concur. See
On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu.294 Reyes, J., See Separate
On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebelsPerlas-Bernabe,
and government troops. J., 295 I concur in the result. Ple
On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde.296 Leonen, J., I dissent. See
On April 20, 2017, the ASG kidnapped SSg. Anni Siraji artd beheaded him three days later.Jardeleza, J., See
There were also intelligence reports from the military about offensives committed by theCaguioa,
ASG and other local rebel groups.J.,All these See
suggest th t the rebellion in Marawi has already spilled overMartires to other parts of Mindanao. J., with
Tijam, J., with Separate Opinion.
Moreover, considering the widespread atrocities in Mindanao and tbe linkages established U.S. among
Supreme rebel
Court groups, the armed uprising
that was initially staged in Marawi cannot be justified as confined only to Marawi. The Court
States v. Nixon,
will not418 simplyU.S.disregard
683 (1974)the
events that happened during the Davao City bombing, the Mamasapano massacre, the United
States v.City Nixonsiege, and the countless
bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others.298 The Court No. cannot73-1766
simply take the battle of Marawi in
isolation. As a crime without predetermined bounds, the President has reasonable basis Arguedto believe
July 8,that
1974the declaration of martial
law, as well as the suspension of the privilege of the writ of habeas corpus in the whole Decided
of Mindanao,
July 24,is1974*most necessary, effective,
and called for by 418 U.S. the683 circumstances.
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES Presidential communications is not significantly diminished by producing
COURT material for a criminal trial under the protected conditions of in
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT camera inspection, and any absolute executive privilege under Art. II of the
Syllabus Constitution would plainly conflict with the function of the courts under the
Following indictment alleging violation of federal statutes by certain staff Constitution. Pp. 418 U. S. 703-707.
members of the White House and political supporters of the President, the 5. Although the courts will afford the utmost deference to Presidential acts in
Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a the performance of an Art. II function, United States v. Burr, 25 F.Cas. 187,
subpoena duces tecum for the production before trial of certain tapes and 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to
documents relating to precisely identified conversations and meetings materials subpoenaed for use in a criminal trial is based, as it is here, not on
between the President and others. The President, claiming executive the ground that military or diplomatic secrets are implicated, but merely on
privilege, filed a motion to quash the subpoena. The District Court, after the ground of a generalized interest in confidentiality, the President's
treating the subpoenaed material as presumptively privileged, concluded generalized assertion of privilege must yield to the demonstrated, specific
that the Special Prosecutor had made a sufficient showing to rebut the need for evidence in a pending criminal trial and the fundamental demands
presumption and that the requirements of Rule 17(c) had been satisfied. The of due process of law in the fair administration of criminal justice. Pp. 418 U.
court thereafter issued an order for an in camera examination of the S. 707-713.
subpoenaed material, having rejected the President's contentions (a) that 6. On the basis of this Court's examination of the record, it cannot be
the dispute between him and the Special Prosecutor was nonjusticiable as an concluded that the District Court erred in ordering in camera examination of
"intra-executive" conflict and (b) that the judiciary lacked authority to review the subpoenaed material, which shall now forthwith be transmitted to the
the President's assertion of executive privilege. The court stayed its order District Court. Pp. 418 U. S. 713-714.
pending appellate review, which the President then sought in the Court of 7. Since a president's communications encompass a vastly wider range of
Appeals. The Special Prosecutor then filed in this Court a petition for a writ of sensitive material than would be true of an ordinary individual, the public
certiorari before judgment (No. 73-1766), and the President filed a cross- interest requires that Presidential confidentiality be afforded the greatest
petition for such a writ challenging the grand jury action (No. 73-1834). The protection consistent with the fair administration of justice, and the District
Court granted both petitions. Court has a heavy responsibility to ensure that material involving Presidential
Held: conversations irrelevant to or inadmissible in the criminal prosecution be
1. The District Court's order was appealable as a "final" order under 28 U.S.C. accorded the high degree of respect due a President, and that such material
§ 1291, was therefore properly "in" the Court of Appeals, 28 U.S.C. § 1254, be returned under seal to its lawful custodian. Until released to the Special
when the petition for certiorari before judgment was filed in this Court, and Prosecutor, no in camera material is to be released to anyone. Pp. 418 U.
is now properly before this Court for review. Although such an order is S. 714-716.
normally not final and subject to appeal, an exception is made in a No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as
"limited class of improvidently granted.
Page 418 U. S. 684 BURGER, C.J., delivered the opinion of the Court, in which all Members joined
cases where denial of immediate review would render impossible any review except REHNQUIST, J., who took no part in the consideration or decision of
whatsoever of an individual's claims," the cases.
United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception Page 418 U. S. 686
is proper in the unique circumstances of this case, where it would be MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
inappropriate to subject the President to the procedure of securing review by This litigation presents for review the denial of a motion, filed in the District
resisting the order and inappropriate to require that the District Court Court on behalf of the President of the United States, in the case of United
proceed by a traditional contempt citation in order to provide appellate States v. Mitchell (D.C.Crim. No. 7110), to quash a third-party
review. Pp. 418 U. S. 690-692. subpoena duces tecum issued by the United States District Court for the
2. The dispute between the Special Prosecutor and the President presents a District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena
justiciable controversy. Pp. 418 U. S. 692-697. directed the President to produce certain tape recordings and documents
(a) The mere assertion of an "intra-branch dispute," without more, does not relating to his conversations with aides and advisers. The court rejected the
defeat federal jurisdiction. United States v. ICC,337 U. S. 426. P. 418 U. President's claims of absolute executive privilege, of lack of jurisdiction, and
S. 693. of failure to satisfy the requirements of Rule 17(c). The President appealed to
(b) The Attorney General, by regulation, has conferred upon the Special the Court of Appeals. We granted both the United States' petition for
Prosecutor unique tenure and authority to represent the United States, and certiorari before judgment (No. 7 1766), [Footnote 1] and also the
has given the Special Prosecutor explicit power to contest the invocation of President's cross-petition for certiorari
executive privilege in seeking evidence deemed relevant to the performance Page 418 U. S. 687
of his specially delegated duties. While the regulation remains in effect, the before judgment (No. 73-1834), [Footnote 2] because of the public
Executive Branch is bound by it. United States ex rel. Accardi v. importance of the issues presented and the need for their prompt resolution.
Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696. 417 U.S. 927 and 960 (1974).
(c) The action of the Special Prosecutor within the scope of his express On March 1, 1974, a grand jury of the United States District Court for the
authority seeking specified evidence preliminarily determined to be relevant District of Columbia returned an indictment charging seven named
and admissible in the pending criminal case, and the President's assertion of individuals [Footnote 3] with various offenses, including conspiracy to
privilege in opposition thereto, present issues "of a type which are defraud the United States and to obstruct justice. Although he was not
traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430, designated as such in the indictment, the grand jury named the President,
and the fact that both litigants are officers of the Executive Branch is not a among others, as an unindicted coconspirator. [Footnote 4] On April 18,
bar to justiciability. Pp. 418 U. S. 696-697. 1974, upon motion of the Special
3. From this Court's examination of the material submitted by the Special Page 418 U. S. 688
Prosecutor in support of his motion for the subpoena, much of which is Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to
under seal, it is clear that the District Court's denial of the motion to quash Rule 17(c) to the President by the United States District Court and made
comported with Rule 17(c), and that the Special Prosecutor has made a returnable on May 2, 1974. This subpoena required the production, in
sufficient showing to justify a subpoena for production before trial. Pp. 418 advance of the September 9 trial date, of certain tapes, memoranda, papers,
U. S. 697-702. transcripts, or other writings relating to certain precisely identified meetings
4. Neither the doctrine of separation of powers nor the generalized need for between the President and others. [Footnote 5] The Special Prosecutor was
confidentiality of high-level communications, without more, can sustain an able to fix the time, place, and persons present at these discussions because
absolute, unqualified Presidential privilege of immunity from judicial process the White House daily logs and appointment records had been delivered to
under all circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. him. On April 30, the President publicly released edited transcripts of 43
177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent a claim of need conversations; portions of 20 conversations subject to subpoena in the
to protect military, diplomatic, or sensitive national security secrets, the present case were included. On May 1, 1974, the President's counsel filed a
confidentiality of "special appearance" and a motion to quash the subpoena under Rule 17(c).
Page 418 U. S. 685 This motion was accompanied by a formal claim of privilege. At a subsequent
hearing, [Footnote 6] further motions to expunge the grand jury's action with the concomitant possibility of an adjudication of contempt if his claims
naming the President as an unindicted coconspirator and for protective are rejected on appeal."
orders against the disclosure of that information were filed or raised orally by United States v. Ryan, supra, at 402 U. S. 533.
counsel for the President. The requirement of submitting to contempt, however, is not without
On May 20, 1974, the District Court denied the motion to quash and the exception, and in some instances the purposes underlying the finality rule
motions to expunge and for protective orders. 377 F.Supp. 1326. It further require a different result. For example, in Perlman v. United States, 247 U.
ordered "the President or any subordinate officer, official, or employee with S. 7 (1918), a subpoena had been directed to a third party requesting certain
custody or control of the documents or exhibits; the appellant, who owned the exhibits, sought to raise a claim of
Page 418 U. S. 689 privilege. The Court held an order compelling production was appealable
objects subpoenaed," id. at 1331, to deliver to the District Court, on or because it was unlikely that the third party would risk a contempt citation in
before May 31, 1974, the originals of all subpoenaed items, as well as an order to allow immediate review of the appellant's claim of
index and analysis of those items, together with tape copies of those privilege. Id. at247 U. S. 12-13. That case fell within the "limited class of
portions of the subpoenaed recordings for which transcripts had been cases where denial of immediate review would render impossible any review
released to the public by the President on April 30. The District Court whatsoever of an individual's claims." United States v. Ryan, supra, at 402
rejected jurisdictional challenges based on a contention that the dispute was U. S. 533.
nonjusticiable because it was between the Special Prosecutor and the Chief Here too, the traditional contempt avenue to immediate appeal is peculiarly
Executive and hence "intra-executive" in character; it also rejected the inappropriate due to the unique setting in which the question arises. To
contention that the Judiciary was without authority to review an assertion of require a President of the United States to place himself in the posture of
executive privilege by the President. The court's rejection of the first disobeying an order of a court merely to trigger the procedural mechanism
challenge was based on the authority and powers vested in the Special for review of the ruling would be
Prosecutor by the regulation promulgated by the Attorney General; the court Page 418 U. S. 692
concluded that a justiciable controversy was presented. The second unseemly, and would present an unnecessary occasion for constitutional
challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 confrontation between two branches of the Government. Similarly, a federal
U.S.App.D.C. 58, 487 F.2d 700 (1973). judge should not be placed in the posture of issuing a citation to a President
The District Court held that the judiciary, not the President, was the final simply in order to invoke review. The issue whether a President can be cited
arbiter of a claim of executive privilege. The court concluded that, under the for contempt could itself engender protracted litigation, and would further
circumstances of this case, the presumptive privilege was overcome by the delay both review on the merits of his claim of privilege and the ultimate
Special Prosecutor's prima facie "demonstration of need sufficiently termination of the underlying criminal action for which his evidence is
compelling to warrant judicial examination in chambers. . . ." 377 F.Supp. at sought. These considerations lead us to conclude that the order of the
1330. The court held, finally, that the Special Prosecutor had satisfied the District Court was an appealable order. The appeal from that order was
requirements of Rule 17(c). The District Court stayed its order pending therefore properly "in" the Court of Appeals, and the case is now properly
appellate review on condition that review was sought before 4 p.m., May 24. before this Court on the writ of certiorari before judgment. 28 U.S.C. § 1254;
The court further provided that matters filed under seal remain under seal 28 U.S.C. § 2101(e).Gay v. Ruff, 292 U. S. 25, 292 U. S. 30 (1934).
when transmitted as part of the record. [Footnote 7]
On May 24, 1974, the President filed a timely notice of appeal from the II
District Court order, and the certified record from the District Court was JUSTICIABILITY
docketed in the United In the District Court, the President's counsel argued that the court lacked
Page 418 U. S. 690 jurisdiction to issue the subpoena because the matter was an intra-branch
States Court of Appeals for the District of Columbia Circuit. On the same day, dispute between a subordinate and superior officer of the Executive Branch,
the President also filed a petition for writ of mandamus in the Court of and hence not subject to judicial resolution. That argument has been
Appeals seeking review of the District Court order. renewed in this Court with emphasis on the contention that the dispute does
Later on May 24, the Special Prosecutor also filed, in this Court, a petition for not present a "case" or "controversy" which can be adjudicated in the federal
a writ of certiorari before judgment. On May 31, the petition was granted courts. The President's counsel argues that the federal courts should not
with an expedited briefing schedule. 417 U.S. 927. On June 6, the President intrude into areas committed to the other branches of Government.
filed, under seal, a cross-petition for writ of certiorari before judgment. This Page 418 U. S. 693
cross-petition was granted June 1, 1974, 417 U.S. 960, and the case was set He views the present dispute as essentially a "jurisdictional" dispute within
for argument on July 8, 1974. the Executive Branch which he analogizes to a dispute between two
I congressional committees. Since the Executive Branch has exclusive
JURISDICTION authority and absolute discretion to decide whether to prosecute a
The threshold question presented is whether the May 20, 1974, order of the case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox, 342
District Court was an appealable order and whether this case was properly F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S. 935
"in" the Court of Appeals when the petition for certiorari was filed in this (1965), it is contended that a President's decision is final in determining what
Cort. 28 U.S.C. § 1254. The Court of Appeals' jurisdiction under 28 U.S.C. § evidence is to be used in a given criminal case. Although his counsel
1291 encompasses only "final decisions of the district courts." Since the concedes that the President ha delegated certain specific powers to the
appeal as timely filed and all other procedural requirements were met, the Special Prosecutor, he has not
petition is properly before this Court for consideration if the District Court "waived nor delegated to the Special Prosecutor the President's duty to claim
order was final. 28 U.S.C. §§ 1254(1), 2101(e). privilege as to all materials . . . which fall within the President's inherent
The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional authority to refuse to disclose to any executive officer."
policy against piecemeal reviews, and against obstructing or impeding an Brief for the President 42. The Special Prosecutor's demand for the items
ongoing judicial proceeding by interlocutory appeals. See, e.g., Cobbledick therefore presents, in the view of the President's counsel, a political question
v. United States, 309 U. S. 323, 309 U. S. 324-326 (1940). This under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually
requirement ordinarily promotes judicial efficiency and hastens the ultimate demonstrable" grant of power under Art. II.
termination of litigation. In applying this principle to an order denying a The mere assertion of a claim of an "intra-branch dispute," without more,
motion to quash and requiring the production of evidence pursuant has never operated to defeat federal jurisdiction; justiciability does not
Page 418 U. S. 691 depend on such a surface inquiry. In United States v. ICC, 337 U. S.
to a subpoena duces tecum, it has been repeatedly held that the order is 426 (1949), the Court observed, "courts must look behind names that
not final, and hence not appealable. United States v. Ryan, 402 U. S. symbolize the parties to determine whether a justiciable case or controversy
530, 402 U. S. 532 (1971); Cobbledick v. United States, supra; is presented." Id. at 337 U. S. 430. See also Powell v. McCormack, 395
Alexander v. United States, 201 U. S. 117 (1906). This Court has U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States
"consistently held that the necessity for expedition in the administration of ex rel. Chapman v. FPC, 345 U. S. 153 (1953); Secretary of Agriculture
the criminal law justifies putting one who seeks to resist the production of v. United States, 347 U. S. 645(1954); FMB v. Isbrandtsen Co., 356 U.
desired information to a choice between compliance with a trial court's order S. 481, 356 U. S. 483 n. 2 (1958); United States v. Marine
to produce prior to any review of that order, and resistance to that order
Bancorporation, ante, p. 418 U. S. 602; and United States v. RULE 17(c)
Connecticut National Bank, ante, p. 418 U. S. 656. The subpoena duces tecum is challenged on the ground that the Special
Page 418 U. S. 694 Prosecutor failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c),
Our starting point is the nature of the proceeding for which the evidence is which governs
sought -- here, a pending criminal prosecution. It is a judicial proceeding in a Page 418 U. S. 698
federal court alleging violation of federal laws, and is brought in the name of the issuance of subpoenas duces tecum in federal criminal proceedings. If
the United States as sovereign. Berger v. United States, 295 U. S. 78, 295 we sustained this challenge, there would be no occasion to reach the claim of
U. S. 88 (1935). Under the authority of Art. II, § 2, Congress has vested in privilege asserted with respect to the subpoenaed material. Thus, we turn to
the Attorney General the power to conduct the criminal litigation of the the question whether the requirements of Rule 17(c) have been
United States Government. 28 U.S.C. § 516. It has also vested in him the satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public
power to appoint subordinate officers to assist him in the discharge of his Utilities, 304 U. S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U.
duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the S. 288, 297 U. S. 346-347 (1936) (Brandeis, J., concurring).
Attorney General has delegated the authority to represent the United States Rule 17(c) provides:
in these particular matters to a Special Prosecutor with unique authority and "A subpoena may also command the person to whom it is directed to
tenure. [Footnote 8] The regulation gives the produce the books, papers, documents or other objects designated therein.
Page 418 U. S. 695 The court on motion made promptly may quash or modify the subpoena if
Special Prosecutor explicit power to contest the invocation of executive compliance would be unreasonable or oppressive. The court may direct that
privilege in the process of seeking evidence deemed relevant to the books, papers, documents or objects designated in the subpoena be
performance of these specially delegated duties. [Footnote 9] 38 Fed.Reg. produced before the court at a time prior to the trial or prior to the time
30739, as amended by 38 Fed.Reg. 32805. when they are to be offered in evidence and may upon their production
So long as this regulation is extant, it has the force of law. In United States permit the books, papers, documents or objects or portions thereof to be
ex rel. Accardi v. Shaughnessy, 347 U. S. 260(1954), regulations of the inspected by the parties and their attorneys."
Attorney General delegated certain of his discretionary powers to the Board A subpoena for documents may be quashed if their production would be
Page 418 U. S. 696 "unreasonable or oppressive," but not otherwise. The leading case in this
of Immigration Appeals and required that Board to exercise its own Court interpreting this standard is Bowman Dairy Co. v. United
discretion on appeals in deportation cases. The Court held that, so long as States, 341 U. S. 214(1951). This case recognized certain fundamental
the Attorney General's regulations remained operative, he denied himself characteristics of the subpoena duces tecum in criminal cases: (1) it was not
the authority to exercise the discretion delegated to the Board even though intended to provide a means of discovery for criminal cases, id. at 341 U. S.
the original authority was his and he could reassert it by amending the 220; (2) its chief innovation was to expedite the trial by providing a time and
regulations. Service v. Dulles, 354 U. S. 363, 354 U. S. 388 (1957), place before trial for the inspection of
and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding Page 418 U. S. 699
of Accardi. subpoenaed materials, [Footnote 11] ibid. As both parties agree, cases
Here, as in Accardi, it is theoretically possible for the Attorney General to decided in the wake of Bowman have generally followed Judge Weinfeld's
amend or revoke the regulation defining the Special Prosecutor's authority. formulation in United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to
But he has not done so. [Footnote 10] So long as this regulation remains in the required showing. Under this test, in order to require production prior to
force, the Executive Branch is bound by it, and indeed the United States, as trial, the moving party must show: (1) that the documents are evidentiary
the sovereign composed of the three branches, is bound to respect and to [Footnote 12] and relevant; (2) that they are not otherwise procurable
enforce it. Moreover, the delegation of authority to the Special Prosecutor in reasonably in advance of trial by exercise of due diligence; (3) that the party
this case is not an ordinary delegation by the Attorney General to a cannot properly prepare for trial without such production and inspection in
subordinate officer: with the authorization of the President, the Acting advance of trial, and that the failure to obtain such inspection may tend
Attorney General provided in the regulation that the Special Prosecutor was unreasonably to delay the trial; and (4) that
not to be removed without the "consensus" of eight designated leaders of Page 418 U. S. 700
Congress. N 8, supra. the application is made in good faith and is not intended as a general "fishing
The demands of and the resistance to the subpoena present an obvious expedition."
controversy in the ordinary sense, but that alone is not sufficient to meet Against this background, the Special Prosecutor, in order to carry his burden,
constitutional standards. In the constitutional sense, controversy means must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our
more than disagreement and conflict; rather it means the kind of controversy own review of the record necessarily affords a less comprehensive view of
courts traditionally resolve. Here the total situation than was available to the trial judge, and we are unwilling
Page 418 U. S. 697 to conclude that the District Court erred in the evaluation of the Special
at issue is the production or nonproduction of specified evidence deemed by Prosecutor's showing under Rule 17(c). Our conclusion is based on the record
the Special Prosecutor to be relevant and admissible in a pending criminal before us, much of which is under seal. Of course, the contents of the
case. It is sought by one official of the Executive Branch within the scope of subpoenaed tapes could not at that stage be described fully by the Special
his express authority; it is resisted by the Chief Executive on the ground of his Prosecutor, but there was a sufficient likelihood that each of the tapes
duty to preserve the confidentiality of the communications of the President. contains conversations relevant to the offenses charged in the
Whatever the correct answer on the merits, these issues are "of a type which indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With
are traditionally justiciable." United States v. ICC, 337 U.S. at 337 U. S. respect to many of the tapes, the Special Prosecutor offered the sworn
430. The independent Special Prosecutor, with his asserted need for the testimony or statements of one or more of the participants in the
subpoenaed material in the underlying criminal prosecution, is opposed by conversations as to what was said at the time. As for the remainder of the
the President, with his steadfast assertion of privilege against disclosure of tapes, the identity of the participants and the time and place of the
the material. This setting assures there is conversations, taken in their total context, permit a rational inference that at
"that concrete adverseness which sharpens the presentation of issues upon least part of the conversations relate to the offenses charged in the
which the court so largely depends for illumination of difficult constitutional indictment.
questions." We also conclude there was a sufficient preliminary showing that each of the
Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the matter is one subpoenaed tapes contains evidence admissible with respect to the offenses
arising in the regular course of a federal criminal prosecution, it is within the charged in the indictment. The most cogent objection to the admissibility of
traditional scope of Art. III power. Id. at 369 U. S. 198. the taped conversations here at issue is that they are a collection of out-of-
In light of the uniqueness of the setting in which the conflict arises, the fact court statements by declarants who will not be subject to cross-examination,
that both parties are officer of the Executive Branch cannot be viewed as a and that the statements are therefore inadmissible hearsay. Here, however,
barrier to justiciability. It would be inconsistent with the applicable law and most of the tapes apparently contain conversations
regulation, and the unique facts of this case, to conclude other than that the Page 418 U. S. 701
Special Prosecutor has standing to bring this action, and that a justiciable to which one or more of the defendant named in the indictment were party.
controversy is presented for decision. The hearsay rule does not automatically bar all out-of-court statements by a
III defendant in a criminal case. [Footnote 13] Declarations by one defendant
may also be admissible against other defendant upon a sufficient showing, by construe and delineate claims arising under express powers, it must follow
independent evidence, [Footnote 14] of a conspiracy among one or more that the Court has authority to interpret claims with respect to powers
other defendants and the declarant and if the declarations at issue were in alleged to derive from enumerated powers.
furtherance of that conspiracy. The same is true of declarations of Our system of government
coconspirators who are not defendants in the case on trial. Dutton v. "requires that federal courts on occasion interpret the Constitution in a
Evans,400 U. S. 74, 400 U. S. 81 (1970). Recorded conversations may manner at variance with the construction given the document by another
also be admissible for the limited purpose of impeaching the credibility of branch."
any defendant who testifies or any other coconspirator who testifies. Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v.
Generally, the need for evidence to impeach witnesses is insufficient to Carr, 369 U.S. at 369 U. S. 211, the Court stated:
require its production in advance of trial. See, e.g., United States v. "Deciding whether a matter has in any measure been committed by the
Carter, 15 F.R.D. 367, Constitution to another branch of government, or whether the action of that
Page 418 U. S. 702 branch exceeds whatever authority has been committed, is itself a delicate
371 (DC 1954). Here, however, there are other valid potential evidentiary exercise in constitutional interpretation, and is a responsibility of this Court
uses for the same material, and the analysis and possible transcription of the as ultimate interpreter of the Constitution."
tapes may take a significant period of time. Accordingly, we cannot conclude Notwithstanding the deference each branch must accord the others, the
that the District Court erred in authorizing the issuance of the "judicial Power of the United States" vested in the federal courts by Art. III, §
subpoena duces tecum. 1, of the Constitution can no more be shared with the Executive Branch than
Enforcement of a pretrial subpoena duces tecum must necessarily be the Chief Executive, for example, can share with the Judiciary the veto
committed to the sound discretion of the trial court, since the necessity for power, or the Congress share with the Judiciary the power to override a
the subpoena most often turns upon a determination of factual issues. Presidential veto. Any other conclusion would be contrary to the basic
Without a determination of arbitrariness or that the trial court finding was concept of separation of powers and the checks and balances that flow from
without record support, an appellate court will not ordinarily disturb a the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S.
finding that the applicant for a subpoena complied with Rule 17(c). See, Mittell ed.
e.g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 Page 418 U. S. 705
1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944). 1938). We therefore reaffirm that it is the province and duty of this Court "to
In a case such as this, however, where a subpoena is directed to a President say what the law is" with respect to the claim of privilege presented in this
of the United States, appellate review, in deference to a coordinate branch of case. Marbury v. Madison, supra at 5 U. S. 177.
Government, should be particularly meticulous to ensure that the standards B
of Rule 17(c) have been correctly applied. United States v. Burr, 25 F.Cas. In support of his claim of absolute privilege, the President's counsel urges
30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials two grounds, one of which is common to all governments and one of which is
submitted by the Special Prosecutor to the District Court in support of his peculiar to our system of separation of powers. The first ground is the valid
motion for the subpoena, we are persuaded that the District Court's denial of need for protection of communications between high Government officials
the President's motion to quash the subpoena was consistent with Rule and those who advise and assist them in the performance of their manifold
17(c). We also conclude that the Special Prosecutor has made a sufficient duties; the importance of this confidentiality is too plain to require further
showing to justify a subpoena for production before trial. The subpoenaed discussion. Human experience teaches that those who expect public
materials are not available from any other source, and their examination and dissemination of their remarks may well temper candor with a concern for
processing should not await trial in the circumstances shown. Bowman appearances and for their own interests to the detriment of the
Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. decisionmaking process. [Footnote 15] Whatever the nature of the privilege
Iozia, 13 F.R.D. 335 (SDNY 1952). of confidentiality of Presidential communications in the exercise of Art. II
Page 418 U. S. 703 powers, the privilege can be said to derive from the supremacy of each
IV branch within its own assigned area of constitutional duties. Certain powers
THE CLAIM OF PRIVILEGE A and privileges flow from the nature of enumerated powers; [Footnote 16]
Having determined that the requirements of Rule 17(c) were satisfied, we the protection of the confidentiality of
turn to the claim that the subpoena should be quashed because it demands Page 418 U. S. 706
"confidential conversations between a President and his close advisors that it Presidential communications has similar constitutional underpinnings.
would be inconsistent with the public interest to produce." App. 48a. The The second ground asserted by the President's counsel in support of the
first contention is a broad claim that the separation of powers doctrine claim of absolute privilege rests on the doctrine of separation of powers.
precludes judicial review of a President's claim of privilege. The second Here it is argued that the independence of the Executive Branch within its
contention is that, if he does not prevail on the claim of absolute privilege, own sphere, Humphrey's Executor v. United States, 295 U. S. 602, 295
the court should hold as a matter of constitutional law that the privilege U. S. 629-630 (1935); Kilbourn v. Thompson, 103 U. S. 168, 103 U. S.
prevails over the subpoena duces tecum. 190-191 (1881), insulates a President from a judicial subpoena in an ongoing
In the performance of assigned constitutional duties, each branch of the criminal prosecution, and thereby protects confidential Presidential
Government must initially interpret the Constitution, and the interpretation communications.
of its powers by any branch is due great respect from the others. The However, neither the doctrine of separation of powers nor the need for
President's counsel, as we have noted, reads the Constitution as providing an confidentiality of high-level communications, without more, can sustain an
absolute privilege of confidentiality for all Presidential communications. absolute, unqualified Presidential privilege of immunity from judicial process
Many decisions of this Court, however, have unequivocally reaffirmed the under all circumstances. The President's need for complete candor and
holding of Marbury v. Madison,1 Cranch 137 (1803), that "[i]t is objectivity from advisers calls for great deference from the courts. However,
emphatically the province and duty of the judicial department to say what when the privilege depends solely on the broad, undifferentiated claim of
the law is." 5 U. S. 177. No holding of the Court has defined the scope public interest in the confidentiality of such conversations, a confrontation
of judicial power specifically relating to the enforcement of a subpoena for with other values arises. Absent a claim of need to protect military,
confidential Presidential communications for use in a criminal prosecution, diplomatic, or sensitive national security secrets, we find it difficult to accept
but other exercises of power by the Executive Branch and the Legislative the argument that even the very important interest in confidentiality of
Branch have been found invalid as in conflict with the Constitution. Powell v. Presidential communications is significantly diminished by production of such
McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. material for in camera inspection with all the protection that a district court
Sawyer, 343 U. S. 579 (1952). In a will be obliged to provide.
Page 418 U. S. 704 Page 418 U. S. 707
series of cases, the Court interpreted the explicit immunity conferred by The impediment that an absolute, unqualified privilege would place in the
express provisions of the Constitution on Members of the House and Senate way of the primary constitutional duty of the Judicial Branch to do justice in
by the Speech or Debate Clause, U.S.Const. Art. I, § 6. Doe v. McMillan, 412 criminal prosecutions would plainly conflict with the function of the courts
U. S. 306(1973); Gravel v. United States, 408 U. S. 606 (1972); United under Art. III. In designing the structure of our Government and dividing and
States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson383 allocating the sovereign power among three co-equal branches, the Framers
U. S. 169 (1966). Since this Court has consistently exercised the power to
of the Constitution sought to provide a comprehensive system, but the every man's evidence are not lightly created nor expansively construed, for
separate powers were not intended to operate with absolute independence. they are in derogation of the search for truth. [Footnote 18]
"While the Constitution diffuses power the better to secure liberty, it also In this case, the President challenges a subpoena served on him as a third
contemplate that practice will integrate the dispersed powers into a party requiring the production of materials for use in a criminal prosecution;
workable government. It enjoins upon its branches separateness but he does so on the claim that he has a privilege against disclosure of
interdependence, autonomy but reciprocity." confidential communications. He does not place his claim of privilege on the
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. ground they are military or diplomatic secrets. As to these areas of Art. II
635 (Jackson, J., concurring). To read the Art. II powers of the President as duties, the courts have traditionally shown the utmost deference to
providing an absolute privilege as against a subpoena essential to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S.
enforcement of criminal statutes on no more than a generalized claim of the Corp., 333 U. S. 103, 333 U. S. 111 (1948), dealing with Presidential
public interest in confidentiality of nonmilitary and nondiplomatic authority involving foreign policy considerations, the Court said:
discussions would upset the constitutional balance of "a workable "The President, both as Commander-in-Chief and as the Nation's organ for
government" and gravely impair the role of the courts under Art. III. foreign affairs, has available intelligence services whose reports are not and
C. ought not to be published to the world. It would be intolerable that courts,
Since we conclude that the legitimate needs of the judicial process may without the relevant information, should review and perhaps nullify actions
outweigh Presidential privilege, it is necessary to resolve those competing of the Executive taken on information properly held secret."
interests in a manner that preserves the essential functions of each branch. In United States v. Reynolds, 345 U. S. 1 (1953), dealing
The right and indeed the duty to resolve that question does not free the Page 418 U. S. 711
Judiciary from according high respect to the representations made on behalf with a claimant's demand for evidence in a Tort Claims Act case against the
of the President. United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. Government, the Court said:
14,694) (CC Va. 1807). "It may be possible to satisfy the court, from all the circumstances of the
Page 418 U. S. 708 case, that there is a reasonable danger that compulsion of the evidence will
The expectation of a President to the confidentiality of his conversations and expose military matters which, in the interest of national security, should not
correspondence, like the claim of confidentiality of judicial deliberations, for be divulged. When this is the case, the occasion for the privilege is
example, has all the values to which we accord deference for the privacy of appropriate, and the court should not jeopardize the security which the
all citizens and, added to those values, is the necessity for protection of the privilege is meant to protect by insisting upon an examination of the
public interest in candid, objective, and even blunt or harsh opinions in evidence, even by the judge alone, in chambers."
Presidential decisionmaking. A President and those who assist him must be Id. at 345 U. S. 10. No case of the Court, however, has extended this high
free to explore alternatives in the process of shaping policies and making degree of deference to a President's generalized interest in confidentiality.
decisions, and to do so in a way many would be unwilling to express except Nowhere in the Constitution, as we have noted earlier, is there any explicit
privately. These are the considerations justifying a presumptive privilege for reference to a privilege of confidentiality, yet to the extent this interest
Presidential communications. The privilege is fundamental to the operation relates to the effective discharge of a President's powers, it is constitutionally
of Government, and inextricably rooted in the separation of powers under based.
the Constitution. [Footnote 17] In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 The right to the production of all evidence at a criminal trial similarly has
F.2d 700 (1973), the Court of Appeals held that such Presidential constitutional dimensions. The Sixth Amendment explicitly confers upon
communications are "presumptively privileged," id. at 75, 487 F.2d at 717, every defendant in a criminal trial the right "to be confronted with the
and this position is accepted by both parties in the present litigation. We witnesses against him" and "to have compulsory process for obtaining
agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no witnesses in his favor." Moreover, the Fifth Amendment also guarantees that
case of his kind would a court be required to proceed against the president no person shall be deprived of liberty without due process of law. It is the
as against an ordinary individual." United States v. Burr, 25 F.Cas. at 192. manifest duty of the courts to vindicate those guarantees, and to accomplish
But this presumptive privilege must be considered in light of our historic that it is essential that all relevant and admissible evidence be produced.
commitment to the rule of law. This In this case, we must weigh the importance of the general privilege of
Page 418 U. S. 709 confidentiality of Presidential communications in performance of the
is nowhere more profoundly manifest than, in our view, that "the twofold President's responsibilities against the inroads of such a privilege on the fair
aim [of criminal justice] is that guilt shall not escape or innocence Page 418 U. S. 712
suffer." Berger v. United States, 295 U.S. at 295 U. S. 88. We have administration of criminal justice. [Footnote 19] The interest in preserving
elected to employ an adversary system of criminal justice in which the confidentiality is weighty indeed, and entitled to great respect. However, we
parties contest all issues before a court of law. The need to develop all cannot conclude that advisers will be moved to temper the candor of their
relevant facts in the adversary system is both fundamental and remarks by the infrequent occasions of disclosure because of the possibility
comprehensive. The ends of criminal justice would be defeated if judgments that such conversations will be called for in the context of a criminal
were to be founded on a partial or speculative presentation of the facts. The prosecution. [Footnote 20]
very integrity of the judicial system and public confidence in the system On the other hand, the allowance of the privilege to withhold evidence that
depend on full disclosure of all the facts, within the framework of the rules of is demonstrably relevant in a criminal trial would cut deeply into the
evidence. To ensure that justice is done, it is imperative to the function of guarantee of due process of law and gravely impair the basic function of the
courts that compulsory process be available for the production of evidence court. A President's acknowledged need for confidentiality
needed either by the prosecution or by the defense. Page 418 U. S. 713
Only recently the Court restated the ancient proposition of law, albeit in the in the communications of his office is general in nature, whereas the
context of a grand jury inquiry, rather than a trial, constitutional need for production of relevant evidence in a criminal
"that 'the public . . . has a right to every man's evidence,' except for those proceeding is specific and central to the fair adjudication of a particular
persons protected by a constitutional, common law, or statutory criminal case in the administration of justice. Without access to specific facts,
privilege, United States v. Bryan, 339 U.S. [323, 339 U. S. a criminal prosecution may be totally frustrated. The President's broad
331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284 U. S. interest in confidentiality of communications will not be vitiated by
438 (1932). . . ." disclosure of a limited number of conversations preliminarily shown to have
Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The privileges some bearing on the pending criminal cases.
referred to by the Court are designed to protect weighty and legitimate We conclude that, when the ground for asserting privilege as to subpoenaed
competing interests. Thus, the Fifth Amendment to the Constitution provides materials sought for use in a criminal trial is based only on the generalized
that no man "shall be compelled in any criminal case to be a witness against interest in confidentiality, it cannot prevail over the fundamental demands of
himself." And, generally, an attorney or a priest may not be required to due process of law in the fair administration of criminal justice. The
disclose what has been revealed in professional confidence. These and other generalized assertion of privilege must yield to the demonstrated, specific
interests are recognized in law by privileges need for evidence in a pending criminal trial.
Page 418 U. S. 710 D
against forced disclosure, established in the Constitution, by statute, or at We have earlier determined that the District Court did not err in authorizing
common law. Whatever their origins, these exceptions to the demand for the issuance of the subpoena. If a President concludes that compliance with
a subpoena would be injurious to the public interest, he may properly, as * Together with No. 73-1834, Nixon, President of the United States v.
was done here, invoke a claim of privilege on the return of the subpoena. United States, also on certiorari before judgment to the same court.
Upon receiving a claim of privilege from the Chief Executive, it became the
further duty of the District Court to treat the subpoenaed material as
presumptively privileged and to require the Special Prosecutor to Republic of the Philippines
demonstrate that the Presidential material was "essential to the justice of Supreme Court
the [pending criminal] case." United States v. Burr, 25 F.Cas. at 192. Here, Manila
the District Court treated the material as presumptively privileged, ---
proceeded to find that the Special
Page 418 U. S. 714
Prosecutor had made a sufficient showing to rebut the presumption, and EN BANC
ordered an in camera examination of the subpoenaed material. On the basis
of our examination of the record, we are unable to conclude that the District ROMULO L. NERI, G.R. No. 180643
Court erred in ordering the inspection. Accordingly, we affirm the order of Petitioner,
the District Court that subpoenaed materials be transmitted to that court. Present:
We now turn to the important question of the District Court's responsibilities
in conducting the in camera examination of Presidential materials or - versus - PUNO, C.J.,
communications delivered under the compulsion of the subpoena duces QUISUMBING,
Enforcement of the subpoena duces tecum was stayed pending this Court's ACCOUNTABILITY OF PUBLIC OFFICERS AUSTRIA-MARTINEZ,
resolution of the issues raised by the petitions for certiorari. Those issues AND INVESTIGATIONS, SENATE CORONA,
now having been disposed of, the matter of implementation will rest with COMMITTEE ON TRADE AND CARPIO MORALES,
"[T]he guard, furnished to [the President] to protect him from being harassed ON NATIONAL DEFENSE AND SECURITY, TINGA,
by vexatious and unnecessary subpoenas, is to be looked for in the conduct Respondents. CHICO-NAZARIO,
of a [district] court after those subpoenas have issued; not in any VELASCO, JR.,
circumstance which is to precede their being issued." NACHURA,
United States v. Burr, 25 F.Cas. at 34. Statements that meet the test of REYES,
admissibility and relevance must be isolated; all other material must be LEONARDO-DE CASTRO, and
excised. At this stage, the District Court is not limited to representations of BRION, JJ.
the Special Prosecutor as to the evidence sought by the subpoena; the
material will be available to the District Court. It is elementary that in Promulgated:
camera inspection of evidence is always a procedure calling for scrupulous
protection against any release or publication of material not found by the March 25, 2008
court, at that stage, probably admissible in evidence and relevant to the x-----------------------------------------------------------------------------------------------------
issues of the trial for which it is sought. That being true of an ordinary ---------------x
situation, it is obvious that the District Court has
Page 418 U. S. 715 DECISION
a very heavy responsibility to see to it that Presidential conversations, which
are either not relevant or not admissible, are accorded that high degree of LEONARDO-DE CASTRO, J.:
respect due the President of the United States. Mr. Chief Justice Marshall, At bar is a petition for certiorari under Rule 65 of the Rules of Court
sitting as a trial judge in the Burr case, supra, was extraordinarily careful to assailing the show cause Letter[1] dated November 22, 2007 and
point out that contempt Order[2] dated January 30, 2008concurrently issued by respondent
"[i]n no case of this kind would a court be required to proceed against the Senate Committees on Accountability of Public Officers and
president as against an ordinary individual." Investigations,[3] Trade and Commerce,[4] and National Defense and
25 F.Cas. at 192. Marshall's statement cannot be read to mean in any sense Security[5] against petitioner Romulo L. Neri, former Director General of the
that a President is above the law, but relates to the singularly unique role National Economic and Development Authority (NEDA).
under Art. II of a President's communications and activities, related to the
performance of duties under that Article. Moreover, a President's The facts, as culled from the pleadings, are as follows:
communications and activities encompass a vastly wider range of sensitive
material than would be true of any "ordinary individual." It is therefore On April 21, 2007, the Department of Transportation and Communication
necessary [Footnote 21] in the public interest to afford Presidential (DOTC) entered into a contract with Zhong Xing Telecommunications
confidentiality the greatest protection consistent with the fair administration Equipment (ZTE) for the supply of equipment and services for the National
of justice. The need for confidentiality even as to idle conversations with Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
associates in which casual reference might be made concerning political (approximately P16 Billion Pesos). The Project was to be financed by the
leaders within the country or foreign statesmen is too obvious to call for Peoples Republic of China.
further treatment. We have no doubt that the District Judge will at all times
accord to Presidential records that high degree of deference suggested In connection with this NBN Project, various Resolutions were introduced in
in United States v. Burr, supra, and will discharge his responsibility to see the Senate, as follows:
to (1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
it that, until released to the Special Prosecutor, no in camera material is COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF
revealed to anyone. This burden applies with even greater force to excised LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE
material; once the decision is made to excise, the material is restored to its BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS
privileged status, and should be returned under seal to its lawful custodian. CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE
Since this matter came before the Court during the pendency of a criminal RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS
prosecution, and on representations that time is of the essence, the mandate RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO
MR. JUSTICE REHNQUIST took no part in the consideration or decision of
these cases.
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION However, in the Letter dated November 15, 2007, Executive Secretary
URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE Eduardo R. Ermita requested respondent Committees to dispense with
CANCELLATION OF THE ZTE CONTRACT petitioners testimony on the ground of executive privilege. The pertinent
portion of the letter reads:
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled
RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND With reference to the subpoena ad testificandum issued to Secretary Romulo
SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE Neri to appear and testify again on 20 November 2007 before the Joint
NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL Committees you chair, it will be recalled that Sec. Neri had already testified
BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING and exhaustively discussed the ZTE / NBN project, including his conversation
TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE with the President thereon last 26 September 2007.
LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY Asked to elaborate further on his conversation with the President, Sec. Neri
AND TERRITORIAL INTEGRITY. asked for time to consult with his superiors in line with the ruling of the
Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago,
entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO Specifically, Sec. Neri sought guidance on the possible invocation of
CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND executive privilege on the following questions, to wit:
PROJECT OF THE NATIONAL GOVERNMENT. a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
At the same time, the investigation was claimed to be relevant to the c) Whether the President said to go ahead and approve the project after
consideration of three (3) pending bills in the Senate, to wit: being told about the alleged bribe?

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT Following the ruling in Senate v. Ermita, the foregoing questions fall under
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS conversations and correspondence between the President and public officials
INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23
PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING confidentiality of conversations of the President is necessary in the exercise
FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE of her executive and policy decision making process. The expectation of a
GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES; President to the confidentiality of her conversations and correspondences,
like the value which we accord deference for the privacy of all citizens, is the
2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT necessity for protection of the public interest in candid, objective, and even
IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL blunt or harsh opinions in Presidential decision-making. Disclosure of
DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT conversations of the President will have a chilling effect on the President,
NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS and will hamper her in the effective discharge of her duties and
THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER responsibilities, if she is not protected by the confidentiality of her
PURPOSES; and conversations.

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, The context in which executive privilege is being invoked is that the
entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL information sought to be disclosed might impair our diplomatic as well as
AGREEMENTS AND EXECUTIVE AGREEMENTS. economic relations with the Peoples Republic of China.Given the confidential
nature in which these information were conveyed to the President, he
cannot provide the Committee any further details of these conversations,
Respondent Committees initiated the investigation by sending invitations to without disclosing the very thing the privilege is designed to protect.
certain personalities and cabinet officials involved
in the NBN Project. Petitioner was among those invited. He was summoned In light of the above considerations, this Office is constrained to invoke the
to appear and testify on September 18, 20, and 26 and October 25, settled doctrine of executive privilege as refined in Senate v. Ermita, and has
2007. However, he attended only the September 26 hearing, claiming he was advised Secretary Neri accordingly.
out of town during the other dates.
Considering that Sec. Neri has been lengthily interrogated on the subject in
In the September 18, 2007 hearing, businessman Jose de Venecia III testified an unprecedented 11-hour hearing, wherein he has answered all questions
that several high executive officials and power brokers were using their propounded to him except the foregoing questions involving executive
influence to push the approval of the NBN Project by the NEDA. It appeared privilege, we therefore request that his testimony on 20 November 2007 on
that the Project was initially approved as a Build-Operate-Transfer (BOT) the ZTE / NBN project be dispensed with.
project but, on March 29, 2007, the NEDA acquiesced to convert it into a
government-to-government project, to be financed through a loan from the
Chinese Government. On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show
On September 26, 2007, petitioner testified before respondent Committees cause Letter requiring him to explain why he should not be cited in
for eleven (11) hours. He disclosed that then Commission on Elections contempt. The Letter reads:
(COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he informed Since you have failed to appear in the said hearing, the Committees on
President Arroyo about the bribery attempt and that she instructed him not Accountability of Public Officers and Investigations (Blue Ribbon), Trade and
to accept the bribe. However, when probed further on what they discussed Commerce and National Defense and Security require you to show cause
about the NBN Project, petitioner refused to answer, invoking executive why you should not be cited in contempt under Section 6, Article 6 of the
privilege. In particular, he refused to answer the questions on (a) whether or Rules of the Committee on Accountability of Public Officers and
not President Arroyo followed up the NBN Project,[6] (b) whether or not she Investigations (Blue Ribbon).
directed him to prioritize it,[7] and (c) whether or not she directed him to
approve.[8] The Senate expects your explanation on or before 2 December 2007.

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to On November 29, 2007, petitioner replied to respondent Committees,
petitioner, requiring him to appear and testify on November 20, 2007. manifesting that it was not his intention to ignore the Senate hearing and
that he thought the only remaining questions were those he claimed to be Injunction), seeking to restrain the implementation of the said
covered by executive privilege, thus: contempt Order.

It was not my intention to snub the last Senate hearing. In fact, I have On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining
cooperated with the task of the Senate in its inquiry in aid of legislation as respondent Committees from implementing their contempt
shown by my almost 11 hours stay during the hearing on 26 September Order, (b) requiring the parties to observe the status quo prevailing prior to
2007. During said hearing, I answered all the questions that were asked of the issuance of the assailed order, and (c) requiring respondent Committees
me, save for those which I thought was covered by executive privilege, and to file their comment.
which was confirmed by the Executive Secretary in his Letter 15 November
2007. In good faith, after that exhaustive testimony, I thought that what Petitioner contends that respondent Committees show cause Letter and
remained were only the three questions, where the Executive Secretary contempt Order were issued with grave abuse of discretion
claimed executive privilege. Hence, his request that my presence be amounting to lack or excess of jurisdiction. He stresses that his conversations
dispensed with. with President Arroyo are candid discussions meant to explore options in
making policy decisions. According to him, these discussions dwelt on the
Be that as it may, should there be new matters that were not yet taken up impact of the bribery scandal involving high government officials on the
during the 26 September 2007 hearing, may I be furnished in advance as to countrys diplomatic relations and economic and military affairs and the
what else I need to clarify, so that as a resource person, I may adequately possible loss of confidence of foreign investors and lenders in
prepare myself. the Philippines. He also emphasizes that his claim of executive privilege is
upon the order of the President and within the parameters laid down
In addition, petitioner submitted a letter prepared by his counsel, Atty. in Senate v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues that
Antonio R. Bautista, stating, among others that: (1) his (petitioner) non- he is precluded from disclosing communications made
appearance was upon the order of the President; and (2) his conversation to him in official confidence under Section 7[12] of Republic Act No. 6713,
with President Arroyo dealt with delicate and sensitive national security and otherwise known as Code of Conduct and Ethical Standards for Public
diplomatic matters relating to the impact of the bribery scandal involving Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of
high government officials and the possible loss of confidence of foreign Court.
investors and lenders in the Philippines. The letter ended with a reiteration
of petitioners request that he be furnished in advance as to what else he Respondent Committees assert the contrary. They argue that (1) petitioners
needs to clarify so that he may adequately prepare for the hearing. testimony is material and pertinent in the investigation conducted in aid of
In the interim, on December 7, 2007, petitioner filed with this Court the legislation; (2) there is no valid justification for petitioner to claim executive
present petition for certiorari assailing the show privilege; (3) there is no abuse of their authority to order petitioners arrest;
cause Letter dated November 22, 2007. and (4) petitioner has not come to court with clean hands.

Respondent Committees found petitioners explanations In the oral argument held last March 4, 2008, the following issues were
unsatisfactory. Without responding to his request for advance notice of the ventilated:
matters that he should still clarify, they issued the Order dated January 30,
2008, citing him in contempt of respondent Committees and ordering his 1. What communications between the President and petitioner Neri are
arrest and detention at the Office of the Senate Sergeant-At-Arms until such covered by the principle of executive privilege?
time that he would appear and give his testimony. The said Order states:
1.a Did Executive Secretary Ermita correctly invoke the principle of executive
ORDER privilege, by order of the President, to cover (i) conversations of
the President in the exercise of her executive and policy decision-making
For failure to appear and testify in the Committees hearing on Tuesday, and (ii) information, which might impair our diplomatic as well as economic
September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, relations with the Peoples Republic of China?
2007; and Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him, which thereby 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying
delays, impedes and obstructs, as it has in fact delayed, impeded and on his conversations with the President on the NBN contract on his
obstructed the inquiry into the subject reported irregularities, AND for failure assertions that the said conversations dealt with delicate and sensitive
to explain satisfactorily why he should not be cited for contempt (Neri letter national security and diplomatic matters relating to the impact of bribery
of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in scandal involving high government officials and the possible loss of
contempt of this (sic) Committees and ordered arrested and detained in the confidence of foreign investors and lenders in the Philippines x x x within
Office of the Senate Sergeant-At-Arms until such time that he will appear the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
and give his testimony.
1.c Will the claim of executive privilege in this case violate the
The Sergeant-At-Arms is hereby directed to carry out and implement this following provisions of the Constitution:
Order and make a return hereof within twenty four (24) hours from its
enforcement. Sec. 28, Art. II (Full public disclosure of all transactions involving public
Sec. 7, Art. III (The right of the people to information on matters of public
On the same date, petitioner moved for the reconsideration of the above
Order.[9] He insisted that he has not shown any contemptible conduct worthy Sec. 1, Art. XI (Public office is a public trust)
of contempt and arrest. He emphasized his willingness to testify on new
matters, however, respondent Committees did not respond to his request for Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
advance notice of questions. He also mentioned the petition for certiorari he executed)
filed on December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter through the issuance of and the due process clause and the principle of separation of powers?
declaration of contempt and arrest.
2. What is the proper procedure to be followed in invoking executive
In view of respondent Committees issuance of the privilege?
contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition
for Certiorari (With Urgent Application for TRO/Preliminary 3. Did the Senate Committees gravely abuse their discretion in ordering
the arrest of petitioner for non-compliance with the subpoena?
cover matters related thereto. When the security of the state or the public
interest so requires and the President so states in writing, the appearance
After the oral argument, the parties were directed to manifest to the Court shall be conducted in executive session.
within twenty-four (24) hours if they are amenable to the Courts proposal of
allowing petitioner to immediately resume his testimony before the Senate Senate cautions that while the above provisions are closely related and
Committees to answer the other questions of the Senators without prejudice complementary to each other, they should not be considered as pertaining
to the decision on the merits of this pending petition. It was understood that to the same power of Congress.Section 21 relates to the power to conduct
petitioner may invoke executive privilege in the course of the Senate inquiries in aid of legislation. Its aim is to elicit information that may be used
Committees proceedings, and if the respondent Committees disagree for legislation. On the other hand, Section 22 pertains to the power to
thereto, the unanswered questions will be the subject of a supplemental conduct a question hour, the objective of which is to obtain information in
pleading to be resolved along with the three (3) questions pursuit of Congress oversight function.[19] Simply stated, while both powers
subject of the present petition.[14] At the same time, respondent Committees allow Congress or any of its committees to conduct inquiry,
were directed to submit several pertinent documents.[15] their objectives are different.
The Senate did not agree with the proposal for the reasons stated in the
Manifestation dated March 5, 2008. As to the required documents, the This distinction gives birth to another distinction with regard to the use of
Senate and respondent Committeesmanifested that they would not be able compulsory process. Unlike in Section 21, Congress cannot compel the
to submit the latters Minutes of all meetings and the Minute Book because it appearance of executive officials under Section 22. The Courts
has never been the historical and traditional legislative practice to keep pronouncement in Senate v. Ermita[20] is clear:
them.[16] They instead submitted the Transcript of Stenographic Notes of
respondent Committees joint public hearings. When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion not as imperative as that of the President to whom, as Chief Executive, such
for Leave to Intervene and to Admit Attached Memorandum, founded on the department heads must give a report of their performance as a matter of
following arguments: duty. In such instances, Section 22, in keeping with the separation of powers,
states that Congress may only request their appearance. Nonetheless, when
(1) The communications between petitioner and the President are covered the inquiry in which Congress requires their appearance is in aid of legislation
by the principle of executive privilege. under Section 21, the appearance is mandatory for the same reasons stated
in Arnault.
(2) Petitioner was not summoned by respondent Senate Committees in
accordance with the law-making bodys power to conduct inquiries in aid of In fine, the oversight function of Congress may be facilitated by compulsory
legislation as laid down in Section 21, Article VI of the Constitution process only to the extent that it is performed in pursuit of legislation. This
and Senate v. Ermita. is consistent with the intent discerned from the deliberations of the
Constitutional Commission
(3) Respondent Senate Committees gravely abused its discretion for alleged Ultimately, the power of Congress to compel the appearance of executive
non-compliance with the Subpoena dated November 13, 2007. officials under section 21 and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the executive branch is a co-
The Court granted the OSGs motion the next day, March 18, 2008. equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information. (Emphasis
As the foregoing facts unfold, related events transpired. supplied.)

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151,

revoking Executive Order No. 464 and Memorandum Circular No. 108. She The availability of the power of judicial review to resolve the issues raised in
advised executive officials and employees to follow and abide by the this case has also been settled in Senate v. Ermita, when it held:
Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita[17] when they are invited to legislative inquiries in aid As evidenced by the American experience during the so-called McCarthy era,
of legislation. however, the right of Congress to conduct inquiries in aid of legislation is, in
At the core of this controversy are the two (2) crucial queries, to wit: theory, no less susceptible to abuse than executive or judicial power. It may
thus be subjected to judicial review pursuant to the Courts certiorari powers
First, are the communications elicited by the subject three (3) questions under Section 1, Article VIII of the Constitution.
covered by executive privilege?

And second, did respondent Committees commit grave abuse of discretion in Hence, this decision.
issuing the contempt Order?
We grant the petition. The Communications Elicited by the Three (3) Questions are Covered by
Executive Privilege
At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes
imperative. Senate draws in bold strokes the distinction between
the legislative and oversight powers of the Congress, as embodied under We start with the basic premises where the parties have conceded.
Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:
The power of Congress to conduct inquiries in aid of legislation is broad. This
SECTION 21. The Senate or the House of Representatives or any of is based on the proposition that a legislative body cannot legislate wisely or
its respective committees may conduct inquiries in aid of legislation in effectively in the absence of information respecting the conditions which the
accordance with its duly published rules of procedure. The rights of persons legislation is intended to affect or change.[21] Inevitably, adjunct thereto is
appearing in or affected by such inquiries shall be respected. the compulsory process to enforce it. But, the power, broad as it is, has
limitations. To be valid, it is imperative that it is done in accordance with the
SECTION 22. The heads of department may upon their own initiative, with Senate or House duly published rules of procedure and that the rights of the
the consent of the President, or upon the request of either House, or as the persons appearing in or affected by such inquiries be respected.
rules of each House shall provide, appear before and be heard by such House
on any matter pertaining to their departments. Written questions shall be The power extends even to executive officials and the only way for them to
submitted to the President of the Senate or the Speaker of the House of be exempted is through a valid claim of executive privilege.[22] This directs us
Representatives at least three days before their scheduled to the consideration of the question -- is there a recognized claim of
appearance. Interpellations shall not be limited to written questions, but may executive privilege despite the revocation of E.O. 464?
functionally those officials were performing a task directly related to the
A- There is a Recognized Claim Presidents pardon power, but concluded that an organizational test was
of Executive Privilege Despite the more appropriate for confining the potentially broad sweep that would result
Revocation of E.O. 464 from the In Re: Sealed Cases functional test. The majority concluded that, the
lesser protections of the deliberative process privilege would suffice. That
At this juncture, it must be stressed that the revocation of E.O. 464 does not privilege was, however, found insufficient to justify the confidentiality of the
in any way diminish our concept of executive privilege. This is because this 4,341 withheld documents.
concept has Constitutional underpinnings. Unlike the United States which
has further accorded the concept with statutory status by enacting But more specific classifications of communications covered by executive
the Freedom of Information Act[23] and the Federal Advisory Committee privilege are made in older cases. Courts ruled early that the Executive has a
Act,[24] the Philippines has retained its constitutional origination, occasionally right to withhold documents that might reveal military or state
interpreted only by this Court in various cases. The most recent of these is secrets,[34] identity of government informers in some
the case of Senate v. Ermita where this Court declared unconstitutional circumstances,,[35] and information related to pending investigations.[36] An
substantial portions of E.O. 464. In this regard, it is worthy to note that area where the privilege is highly revered is in foreign relations. In United
Executive Ermitas Letter dated November 15, 2007 limits its bases for the States v. Curtiss-Wright Export Corp.[37] the U.S. Court, citing President
claim of executive privilege to Senate v. Ermita, Almonte v. George Washington, pronounced:
Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,[27] have comprehensively The nature of foreign negotiations requires caution, and their success must
discussed the concept of executive privilege, we deem it imperative to often depend on secrecy, and even when brought to a conclusion, a full
explore it once more in view of the clamor for this Court to clearly define the disclosure of all the measures, demands, or eventual concessions which may
communications covered by executive privilege. have been proposed or contemplated would be extremely impolitic, for this
might have a pernicious influence on future negotiations or produce
The Nixon and post-Watergate cases established the broad contours of immediate inconveniences, perhaps danger and mischief, in relation to other
the presidential communications privilege.[28] In United powers. The necessity of such caution and secrecy was one cogent reason for
States v. Nixon,[29] the U.S. Court recognized a great public interest in vesting the power of making treaties in the President, with the advice and
preserving the confidentiality of conversations that take place in the consent of the Senate, the principle on which the body was formed confining
Presidents performance of his official duties. It thus considered presidential it to a small number of members. To admit, then, a right in the House of
communications as presumptively privileged. Apparently, the presumption is Representatives to demand and to have as a matter of course all the papers
founded on the Presidents generalized interest in confidentiality. The respecting a negotiation with a foreign power would be to establish a
privilege is said to be necessary to guarantee the candor of presidential dangerous precedent.
advisors and to provide the President and those who assist him with
freedom to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express Majority of the above jurisprudence have found their way in our
except privately. jurisdiction. In Chavez v. PCGG[38], this Court held that there is a
governmental privilege against public disclosure with respect to state secrets
In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled that regarding military, diplomatic and other security matters. In Chavez v.
there are two (2) kinds of executive privilege; one is PEA,[39] there is also a recognition of the confidentiality of Presidential
the presidential communications privilege and, the other is the deliberative conversations, correspondences, and discussions in closed-door Cabinet
process privilege. The former pertains to communications, documents or meetings. In Senate v. Ermita, the concept of presidential communications
other materials that reflect presidential decision-making and deliberations privilege is fully discussed.
and that the President believes should remain confidential. The latter
includes advisory opinions, recommendations and deliberations comprising As may be gleaned from the above discussion, the claim of executive
part of a process by which governmental decisions and policies are privilege is highly recognized in cases where the subject of inquiry relates to
formulated. a power textually committed by the Constitution to the President, such as
Accordingly, they are characterized by marked distinctions. Presidential the area of military and foreign relations. Under our Constitution, the
communications privilege applies to decision-making of the President while, President is the repository of the commander-in-
the deliberative process privilege, to decision-making chief,[40] appointing,[41]pardoning,[42] and diplomatic[43] powers. Consistent
of executive officials. The first is rooted in the constitutional principle of with the doctrine of separation of powers, the information relating to these
separation of power and the Presidents unique constitutional powers may enjoy greater confidentiality than others.
role; the second on common law privilege. Unlike the deliberative process
privilege, the presidential communications privilege applies to documents The above cases, especially, Nixon, In Re Sealed Case and Judicial
in their entirety, and covers final and post-decisional materials as well as Watch, somehow provide the elements of presidential communications
pre-deliberative ones[31] As a consequence, congressional or judicial negation privilege, to wit:
of the presidential communications privilege is always subject to greater 1) The protected communication must relate to a quintessential and non-
scrutiny than denial of the deliberative process privilege. delegable presidential power.
Turning on who are the officials covered by the presidential communications
privilege, In Re: Sealed Case confines the privilege only to White House Staff 2) The communication must be authored or solicited and received by a
that has operational proximity to direct presidential decision-making. Thus, close advisor of the President or the President himself. The judicial test is
the privilege is meant to encompass only those functions that form the core that an advisor must be in operational proximity with the President.
of presidential authority, involving what the court characterized as
quintessential and non-delegable Presidential power, such as commander-in- 3) The presidential communications privilege remains a qualified privilege
chief power, appointment and removal power, the power to grant pardons that may be overcome by a showing of adequate need, such that the
and reprieves, the sole-authority to receive ambassadors and other public information sought likely contains important evidence and by the
officers, the power to negotiate treaties, etc.[32] unavailability of the information elsewhere by an appropriate investigating
The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In
Re: Sealed Case principles. There, while the presidential decision involved is In the case at bar, Executive Secretary Ermita premised his claim of executive
the exercise of the Presidents pardon power, a non-delegable, core- privilege on the ground that the communications elicited by the three (3)
presidential function, the Deputy Attorney General and the Pardon Attorney questions fall under conversation and correspondence between the
were deemed to be too remote from the President and his President and public officials necessary in her executive and policy decision-
senior White House advisors to be protected. The Court conceded that making process and, that the information sought to be disclosed might
impair our diplomatic as well as economic relations with the Peoples
Republic of China. Simply put, the bases are presidential communications
privilege and executive privilege on matters relating to diplomacy or foreign inquiry. Pertinently, in Senate Select Committee on Presidential Campaign
relations. Activities v. Nixon,[49] it was held that since an impeachment proceeding had
been initiated by a House Committee, the Senate Select Committees
Using the above elements, we are convinced that, indeed, the immediate oversight need for five presidential tapes should give way to the
communications elicited by the three (3) questions are covered by House Judiciary Committee which has the constitutional authority to inquire
the presidential communications privilege. First, the communications relate into presidential impeachment. The Court expounded on this issue in this
to a quintessential and non-delegable power of the President, i.e. the power wise:
to enter into an executive agreement with other countries. This authority of
the President to enter into executive agreements without the concurrence of It is true, of course, that the Executive cannot, any more than the other
the Legislature has traditionally been recognized in Philippine branches of government, invoke a general confidentiality privilege to shield
jurisprudence.[45] Second, the communications are received by a close advisor its officials and employees from investigations by the proper governmental
of the President. Under the operational proximity test, petitioner can be institutions into possible criminal wrongdoing. The Congress learned this as
considered a close advisor, being a member of President Arroyos to its own privileges in Gravel v. United States, as did the judicial branch, in a
cabinet. And third, there is no adequate showing of a compelling need that sense, in Clark v. United States, and the executive branch itself in Nixon v.
would justify the limitation of the privilege and of the unavailability of the Sirica. But under Nixon v. Sirica, the showing required to overcome the
information elsewhere by an appropriate investigating authority. presumption favoring confidentiality turned, not on the nature of the
The third element deserves a lengthy discussion. presidential conduct that the subpoenaed material might reveal, but,
instead, on the nature and appropriateness of the function in the
United States v. Nixon held that a claim of executive privilege is subject performance of which the material was sought, and the degree to which
to balancing against other interest. In other words, confidentiality in the material was necessary to its fulfillment. Here also our task requires
executive privilege is not absolutelyprotected by the Constitution. The U.S. and our decision implies no judgment whatever concerning possible
Court held: presidential involvement in culpable activity. On the contrary, we think the
sufficiency of the Committee's showing must depend solely on whether the
[N]either the doctrine of separation of powers, nor the need for subpoenaed evidence is demonstrably critical to the responsible fulfillment
confidentiality of high-level communications, without more, can sustain an of the Committee's functions.
absolute, unqualified Presidential privilege of immunity from judicial process In its initial briefs here, the Committee argued that it has shown exactly this.
under all circumstances. It contended that resolution, on the basis of the subpoenaed tapes, of the
conflicts in the testimony before it would aid in a determination whether
The foregoing is consistent with the earlier case of Nixon v. Sirica,[46] where it legislative involvement in political campaigns is necessary and could help
was held that presidential communications are presumptively privileged and engender the public support needed for basic reforms in our electoral
that the presumption can be overcome only by mere showing of public need system. Moreover, Congress has, according to the Committee, power to
by the branch seeking access to conversations. The courts are enjoined to oversee the operations of the executive branch, to investigate instances of
resolve the competing interests of the political branches of the government possible corruption and malfeasance in office, and to expose the results of its
in the manner that preserves the essential functions of each Branch.[47] Here, investigations to public view. The Committee says that with respect to
the record is bereft of any categorical explanation from respondent Watergate-related matters, this power has been delegated to it by
Committees to show a compelling or citical the Senate, and that to exercise its power responsibly, it must have access to
need for the answers to the three (3) questions in the enactment of a the subpoenaed tapes.
law. Instead, the questions veer more towards the exercise of the legislative We turn first to the latter contention. In the circumstances of this case, we
oversight function under Section 22 of Article VI rather than Section 21 of the need neither deny that the Congress may have, quite apart from its
same Article. Senate v. Ermita ruled that the the oversight function of legislative responsibilities, a general oversight power, nor explore what the
Congress may be facilitated by compulsory process only to the extent that lawful reach of that power might be under the Committee's constituent
it is performed in pursuit of legislation. It is conceded that it is difficult to resolution. Since passage of that resolution, the House Committee on the
draw the line between an inquiry in aid of legislation and an inquiry in the Judiciary has begun an inquiry into presidential impeachment. The
exercise of oversight function of Congress. In this regard, much will depend investigative authority of the Judiciary Committee with respect to
on the content of the questions and the manner the inquiry is conducted. presidential conduct has an express constitutional source. x x x We have
been shown no evidence indicating that Congress itself attaches any
Respondent Committees argue that a claim of executive privilege does not particular value to this interest. In these circumstances, we think the need
guard against a possible disclosure of a crime or wrongdoing. We see no for the tapes premised solely on an asserted power to investigate and
dispute on this. It is settled in United States v. Nixon[48] that demonstrated, inform cannot justify enforcement of the Committee's subpoena.
specific need for evidence in pending criminal trial outweighs the Presidents The sufficiency of the Committee's showing of need has come to depend,
generalized interest in confidentiality. However, the present cases distinction therefore, entirely on whether the subpoenaed materials are critical to the
with the Nixon case is very performance of its legislative functions. There is a clear difference between
evident. In Nixon, there is a pending criminal proceeding Congress' legislative tasks and the responsibility of a grand jury, or any
where the information is requested and it is the demands of due process of institution engaged in like functions. While fact-finding by a legislative
law and the fair administration of criminal justice that the information be committee is undeniably a part of its task, legislative judgments normally
disclosed. This is the reason why the U.S. Court was quick to limit the scope depend more on the predicted consequences of proposed legislative
of its decision. It stressed that it is not concerned here with the balance actions and their political acceptability, than on precise reconstruction of
between the Presidents generalized interest in confidentiality x x x and past events; Congress frequently legislates on the basis of conflicting
congressional demands for information. Unlike in Nixon, the information information provided in its hearings. In contrast, the responsibility of the
here is elicited, not in a criminal proceeding, but in a legislative inquiry. In grand jury turns entirely on its ability to determine whether there is probable
this regard, Senate v. Ermita stressed that the validity of the claim of cause to believe that certain named individuals did or did not commit specific
executive privilege depends not only on the ground invoked but, also, on crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
the procedural setting or the context in which the claim is concerning the content of certain conversations, the grand jury's need for
made. Furthermore, in Nixon, the President did not interpose any claim of the most precise evidence, the exact text of oral statements recorded in their
need to protect military, diplomatic or sensitive national security secrets. In original form, is undeniable. We see no comparable need in the legislative
the present case, Executive Secretary Ermita categorically claims executive process, at least not in the circumstances of this case. Indeed, whatever
privilege on the grounds of presidential communications privilege in relation force there might once have been in the Committee's argument that the
to her executive and policy decision-making process and diplomatic secrets. subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)
The respondent Committees should cautiously tread into the investigation of
matters which may present a conflict of interest that may provide a ground
to inhibit the Senators participating in the inquiry if later on an impeachment Respondent Committees further contend that the grant of petitioners claim
proceeding is initiated on the same subject matter of the present Senate of executive privilege violates the constitutional provisions on the right of the
people to information on matters of public concern.[50] We might have President. That is more than enough compliance. In Senate v. Ermita, a less
agreed with such contention if petitioner did not appear before them at categorical letter was even adjudged to be sufficient.
all. But petitioner made himself available to them during the September 26
hearing, where he was questioned for eleven (11) hours. Not only that, he With regard to the existence of precise and certain reason, we find the
expressly manifested his willingness to answer more questions from the grounds relied upon by Executive Secretary Ermita specific enough so as
Senators, with the exception only of those covered by his claim of executive not to leave respondent Committees in the dark on how the requested
privilege. information could be classified as privileged. The case of Senate v.
Ermita only requires that an allegation be made whether the information
The right to public information, like any other right, is subject to demanded involves military or diplomatic secrets, closed-door Cabinet
limitation. Section 7 of Article III provides: meetings, etc. The particular ground must only be specified. The
enumeration is not even intended to be comprehensive.[58] The following
The right of the people to information on matters of public concern shall be statement of grounds satisfies the requirement:
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government The context in which executive privilege is being invoked is that the
research data used as basis for policy development, shall be afforded the information sought to be disclosed might impair our diplomatic as well as
citizen, subject to such limitations as may be provided by law. economic relations with the Peoples Republic of China.Given the confidential
nature in which these information were conveyed to the President, he
cannot provide the Committee any further details of these conversations,
The provision itself expressly provides the limitation, i.e. as may be provided without disclosing the very thing the privilege is designed to protect.
by law. Some of these laws are Section 7 of Republic Act (R.A.) No.
6713,[51] Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. At any rate, as held further in Senate v. Ermita, [59] the Congress must not
3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in require the executive to state the reasons for the claim with such
addition to what our body of jurisprudence classifies as confidential[55] and particularity as to compel disclosure of the information which the privilege is
what our Constitution considers as belonging to the larger concept of meant to protect. This is a matter of respect to a coordinate and co-equal
executive privilege. Clearly, there is a recognized public interest in the department.
confidentiality of certain information. We find the information subject of this
case belonging to such kind. II
Respondent Committees Committed Grave Abuse of Discretion in Issuing
More than anything else, though, the right of Congress or any of its the Contempt Order
Committees to obtain information in aid of legislation cannot be equated
with the peoples right to public information.The former cannot claim that
every legislative inquiry is an exercise of the peoples right to information. Grave abuse of discretion means such capricious and whimsical exercise of
The distinction between such rights is laid down in Senate v. Ermita: judgment as is equivalent to lack of jurisdiction, or, in other words where the
power is exercised in an arbitrary or despotic manner by reason of passion or
There are, it bears noting, clear distinctions between the right of Congress to personal hostility and it must be so patent and gross as to amount to an
information which underlies the power of inquiry and the right of people to evasion of positive duty or to a virtual refusal to perform the duty enjoined
information on matters of public concern. For one, the demand of a citizen or to act at all in contemplation of law.[60]
for the production of documents pursuant to his right to information does
not have the same obligatory force as a subpoena duces tecum issued by It must be reiterated that when respondent Committees issued the show
Congress. Neither does the right to information grant a citizen the power to cause Letter dated November 22, 2007, petitioner replied
exact testimony from government officials. These powers belong only to immediately, manifesting that it was not his intention to ignore the Senate
Congress, not to an individual citizen. hearing and that he thought the only remaining questions were the three (3)
questions he claimed to be covered by executive privilege. In addition
Thus, while Congress is composed of representatives elected by the people, thereto, he submitted Atty. Bautistas letter, stating that his non-appearance
it does not follow, except in a highly qualified sense, that in every exercise was upon the order of the President and specifying the reasons why his
of its power of inquiry, the people are exercising their right to information. conversations with President Arroyo are covered by executive privilege. Both
correspondences include an expression of his willingness to testify again,
provided he be furnished in advance copies of the questions. Without
The members of respondent Committees should not invoke as justification in responding to his request for advance list of questions, respondent
their exercise of power a right properly belonging to the people in general. Committees issued the Order dated January 30, 2008, citing him in contempt
This is because when they discharge their power, they do so as public of respondent Committees and ordering his arrest and detention at the
officials and members of Congress. Be that as it may, the right to information Office of the Senate Sergeant-At-Arms until such time that he would appear
must be balanced with and should give way, in appropriate cases, to and give his testimony. Thereupon, petitioner filed a motion for
constitutional precepts particularly those pertaining to delicate interplay of reconsideration, informing respondent Committees that he had filed the
executive-legislative powers and privileges which is the subject of careful present petition for certiorari.
review by numerous decided cases.
Respondent Committees committed grave abuse of discretion in issuing the
B- The Claim of Executive Privilege contempt Order in view of five (5) reasons.
is Properly Invoked
First, there being a legitimate claim of executive privilege, the issuance of the
We now proceed to the issue -- whether the claim is properly invoked by the contempt Order suffers from constitutional infirmity.
President. Jurisprudence teaches that for the claim to be properly invoked, Second, respondent Committees did not comply with the requirement laid
there must be a formal claim of privilege, lodged by the head of the down in Senate v. Ermita that the invitations should contain the possible
department which has control over the matter.[56] A formal and proper claim needed statute which prompted the need for the inquiry, along with the
of executive privilege requires a precise and certain reason for preserving usual indication of the subject of inquiry and the questions relative to and in
their confidentiality.[57] furtherance thereof. Compliance with this requirement is imperative, both
under Sections 21 and 22 of Article VI of the Constitution. This must be so to
ensure that the rights of both persons appearing in or affected by such
The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies inquiry are respected as mandated by said Section 21 and by virtue of the
the requirement. It serves as the formal claim of privilege. There, he express language of Section 22. Unfortunately, despite petitioners repeated
expressly states that this Office is constrained to invoke the settled doctrine demands, respondent Committees did not send him an advance list of
of executive privilege as refined in Senate v. Ermita, and has advised questions.
Secretary Neri accordingly. Obviously, he is referring to the Office of the
Third, a reading of the transcript of respondent Committees January 30, strengthen the determination of this Committee to put its foot forward put
2008 proceeding reveals that only a minority of the members of the Senate down on what is happening in this country, Mr. Chairman, because it really
Blue Ribbon Committee was present during the deliberation. [61] Section 18 of looks terrible if the primary Committee of the Senate, which is the Blue
the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: Ribbon Committee, cannot even sanction people who openly defy, you know,
the summons of this Committee. I know that the Chair is going through an
The Committee, by a vote of majority of all its members, may punish for agonizing moment here. I know that. But nonetheless, I think we have to
contempt any witness before it who disobeys any order of the Committee or uphold, you know, the institution that we are representing because the
refuses to be sworn or to testify or to answer proper questions by the alternative will be a disaster for all of us, Mr. Chairman. So having said that,
Committee or any of its members. Id like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with
Clearly, the needed vote is a majority of all the members of the Committee. the intentions of the Minority Leader. But let me very respectfully disagree
Apparently, members who did not actually participate in the deliberation with the legal requirements. Because, yes, we can have a hearing if we are
were made to sign the contempt Order. Thus, there is a cloud of doubt as to only two but both under Section 18 of the Rules of the Senate and under
the validity of the contempt Order dated January 30, 2008. We quote the Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a
pertinent portion of the transcript, thus: majority of all members if it is a case of contempt and arrest. So, I am
simply trying to avoid the court rebuking the Committee, which will instead
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we
call either a caucus or will ask the Committee on Rules if there is a problem. should push for this and show the executive branch that the well-decided the
Meaning, if we do not have the sufficient numbers. But if we have a issue has been decided upon the Sabio versus Gordon case. And its very clear
sufficient number, we will just hold a caucus to be able to implement that that we are all allowed to call witnesses. And if they refure or they disobey
right away becauseAgain, our Rules provide that any one held in contempt not only can we cite them in contempt and have them arrested. x x x [62]
and ordered arrested, need the concurrence of a majority of all members of
the said committee and we have three committees conducting this.
Fourth, we find merit in the argument of the OSG that respondent
So thank you very much to the members Committees likewise violated Section 21 of Article VI of the Constitution,
SEN. PIMENTEL. Mr. Chairman. requiring that the inquiry be in accordancewith the duly published rules of
procedure. We quote the OSGs explanation:
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader The phrase duly published rules of procedure requires the Senate of every
and give him the floor, Senator Pimentel. Congress to publish its rules of procedure governing inquiries in aid of
legislation because every Senate is distinct from the one before it or after it.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting Since Senatorial elections are held every three (3) years for one-half of the
the other committees. But I am of the opinion that the Blue Ribbon Senates membership, the composition of the Senate also changes by the end
Committee is the lead committee, and therefore, it should have preference of each term. Each Senate may thus enact a different set of rules as it may
in enforcing its own decisions. Meaning to say, it is not something that is deem fit. Not having published its Rules of Procedure, the subject hearings
subject to consultation with other committees. I am not sure that is the in aid of legislation conducted by the 14th Senate, are therefore,
right interpretation. I think that once we decide here, we enforce what we procedurally infirm.
decide, because otherwise, before we know it, our determination is
watered down by delay and, you know, the so-called consultation that
inevitably will have to take place if we follow the premise that has been And fifth, respondent Committees issuance of the contempt Order is
explained. arbitrary and precipitate. It must be pointed out that respondent
Committees did not first pass upon the claim of executive privilege and
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not inform petitioner of their ruling. Instead, they curtly dismissed his
forget its the lead committee here, and therefore, the will of the lead explanation as unsatisfactory and simultaneously issued the Order citing him
committee prevails over all the other, you, know reservations that other in contempt and ordering his immediate arrest and detention.
committees might have who are only secondary or even tertiary committees,
Mr. Chairman. A fact worth highlighting is that petitioner is not an unwilling witness. He
manifested several times his readiness to testify before respondent
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Committees. He refused to answer the three (3) questions because he was
Leader. And I agree with the wisdom of his statements. I was merely ordered by the President to claim executive privilege. It behooves
mentioning that under Section 6 of the Rules of the Committee and under respondent Committees to first rule on the claim of executive privilege and
Section 6, The Committee by a vote of a majority of all its members may inform petitioner of their finding thereon, instead of peremptorily dismissing
punish for contempt any witness before it who disobeys any order of the his explanation as unsatisfactory. Undoubtedly,
Committee. respondent Committees actions constitute grave abuse of discretion for
being arbitrary and for denying petitioner due process of law. The same
So the Blue Ribbon Committee is more than willing to take that quality afflicted their conduct when they (a) disregarded petitioners motion
responsibility. But we only have six members here today, I am the seventh for reconsideration alleging that he had filed the present petition before this
as chair and so we have not met that number. So I am merely stating that, Court and (b) ignored petitioners repeated request for an advance list of
sir, that when we will prepare the documentation, if a majority of all questions, if there be any aside from the three (3) questions as to which he
members sign and I am following the Sabio v. Gordon rule wherein I do claimed to be covered by executive privilege.
believe, if I am not mistaken, Chairman Gordon prepared the documentation
and then either in caucus or in session asked the other members to sign. And Even the courts are repeatedly advised to exercise the power of contempt
once the signatures are obtained, solely for the purpose that Secretary Neri judiciously and sparingly with utmost self-restraint with the end in view of
or Mr. Lozada will not be able to legally question our subpoena as being utilizing the same for correction and preservation of the dignity of the court,
insufficient in accordance with law. not for retaliation or vindication.[63] Respondent Committees should have
exercised the same restraint, after all petitioner is not even an ordinary
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very witness. He holds a high position in a co-equal branch of government.
well-taken. But Id like to advert to the fact that the quorum of the committee
is only two as far as I remember. Any two-member senators attending a In this regard, it is important to mention that many incidents of judicial
Senate committee hearing provide that quorum, and therefore there is more review could have been avoided if powers are discharged with
than a quorum demanded by our Rules as far as we are concerned now, and circumspection and deference. Concomitant with the doctrine of separation
acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, of powers is the mandate to observe respect to a co-equal branch of the
the signatures that will follow by the additional members will only tend to government.
One last word.

The Court was accused of attempting to abandon its constitutional duty WE CONCUR:
when it required the parties to consider a proposal that would lead to a
possible compromise. The accusation is far from the truth. The Court did so,
only to test a tool that other jurisdictions find to be effective in settling
similar cases, to avoid a piecemeal consideration of the questions for
review and to avert a constitutional crisis between the executive and REYNATO S. PUNO
legislative branches of government. Chief Justice

In United States v. American Tel. & Tel Co.,[64] the court refrained from
deciding the case because of its desire to avoid a resolution that might
disturb the balance of power between the two branches and inaccurately LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
reflect their true needs. Instead, it remanded the record to the District Court
Associate Justice Associate Justice
for further proceedings during which the parties are required to negotiate a
settlement. In the subsequent case of United States v. American Tel. &Tel
Co.,[65] it was held that much of this spirit of compromise is reflected in the
generality of language found in the Constitution. It proceeded to state: ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
Under this view, the coordinate branches do not exist in an exclusively
adversary relationship to one another when a conflict in authority arises.
Rather each branch should take cognizance of an implicit constitutional
mandate to seek optimal accommodation through a realistic evaluationRENATO of C. CORONA CONCHITA CARPIO MORALES
the needs of the conflicting branches in the particular fact situation. Associate Justice Associate Justice

It thereafter concluded that: The Separation of Powers often impairs

efficiency, in terms of dispatch and the immediate functioning ADOLFO
government. It is the long-term staying power of government thatAssociate
is Justice Associate Justice
enhanced by the mutual accommodation required by the separation of

In rendering this decision, the Court emphasizes once more that MINITA the V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
basic principles of constitutional law cannot be subordinated to the needsAssociate
of Justice Associate Justice
a particular situation. As magistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes
warning on the dangers inherent in cases of this nature, thus:

some accident of immediate and overwhelming interestappeals to ANTONIO the EDUARDO B. NACHURA RUBEN T. REYES
feelings and distorts the judgment. These immediate interests exercise a kind
Associate Justice Associate Justice
of hydraulic pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend.[66]

In this present crusade to search for truth, we should turn to the

fundamental constitutional principles which underlie our tripartite system of ARTURO D. BRION
government, where the Legislature enacts the law, the Judiciary Associate Justice
interprets it and the Executive implements it. They are considered
separate, co-equal, coordinate and supreme within their respective spheres
but, imbued with a system of checks and balances to prevent
unwarranted exercise of power. The Courts mandate is to preserve
these constitutional principles at all times to keep the political branches of CERTIFICATION
government within constitutional bounds in the exercise of their respective
powers and prerogatives, even if it be in the search for truth. This is the only
way we can preserve the stability of our democratic institutions and Pursuant to Section 13, Article VIII of the Constitution, I certify that the
uphold the Rule of Law. conclusions in the above decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
WHEREFORE, the petition is hereby GRANTED. The subject Order
dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the
Senate Committees and directing his arrest and detention, is hereby nullified. REYNATO S. PUNO
Chief Justice

TERESITA J. LEONARDO DE CASTRO G.R. No. 82585 November 14, 1988

Associate Justice

THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial the constitutional provision on the issuance of warrants of arrest. The
Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the pertinent provision reads:
Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and
PRESIDENT CORAZON C. AQUINO, respondents. Art. III, Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
G.R. No. 82827 November 14, 1988 warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination nder oath or affirmation of the
LUIS D. BELTRAN, petitioner, complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the deletion of the grant of authority by the 1973 Constitution to issue warrants
Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF to "other responsible officers as may be authorized by law," has apparently
MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN convinced petitioner Beltran that the Constitution now requires the judge to
POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT personally examine the complainant and his witnesses in his determination
THE REGIONAL TRIAL COURT OF MANILA, respondents. of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.

G.R. No. 83979 November 14, 1988. What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
LUIS D. BELTRAN, petitioner, probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally
vs. examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE supporting documents submitted by the fiscal regarding the existence of
SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. on the basis thereof he finds no probable cause, he may disregard the fiscal's
MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at report and require the submission of supporting affidavits of witnesses to aid
Manila, respondents. him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly

RESOLUTION laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
In these consolidated cases, three principal issues were raised: (1) whether setting down guidelines for the issuance of warrants of arrest. The procedure
or not petitioners were denied due process when informations for libel were therein provided is reiterated and clarified in this resolution.
filed against them although the finding of the existence of a prima facie case
was still under review by the Secretary of Justice and, subsequently, by the It has not been shown that respondent judge has deviated from the
President; (2) whether or not the constitutional rights of Beltran were prescribed procedure. Thus, with regard to the issuance of the warrants of
violated when respondent RTC judge issued a warrant for his arrest without arrest, a finding of grave abuse of discretion amounting to lack or excess of
personally examining the complainant and the witnesses, if any, to jurisdiction cannot be sustained.
determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against Anent the third issue, petitioner Beltran argues that "the reasons which
the petitioners through the filing of a complaint-affidavit. necessitate presidential immunity from suit impose a correlative disability to
file suit." He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to be
a witness for the prosecution, bringing her under the trial court's jurisdiction.
Subsequent events have rendered the first issue moot and academic. On This, continues Beltran, would in an indirect way defeat her privilege of
March 30, 1988, the Secretary of Justice denied petitioners' motion for immunity from suit, as by testifying on the witness stand, she would be
reconsideration and upheld the resolution of the Undersecretary of Justice exposing herself to possible contempt of court or perjury.
sustaining the City Fiscal's finding of a prima facie case against petitioners. A
second motion for reconsideration filed by petitioner Beltran was denied by The rationale for the grant to the President of the privilege of immunity from
the Secretary of Justice on April 7, 1988. On appeal, the President, through suit is to assure the exercise of Presidential duties and functions free from
the Executive Secretary, affirmed the resolution of the Secretary of Justice on any hindrance or distraction, considering that being the Chief Executive of
May 2, 1988. The motion for reconsideration was denied by the Executive the Government is a job that, aside from requiring all of the office holder's
Secretary on May 16, 1988. With these developments, petitioners' time, also demands undivided attention.
contention that they have been denied the administrative remedies available
under the law has lost factual support. But this privilege of immunity from suit, pertains to the President by virtue of
the office and may be invoked only by the holder of the office; not by any
It may also be added that with respect to petitioner Beltran, the allegation of other person in the President's behalf. Thus, an accused in a criminal case in
denial of due process of law in the preliminary investigation is negated by the which the President is complainant cannot raise the presidential privilege as
fact that instead of submitting his counter- affidavits, he filed a "Motion to a defense to prevent the case from proceeding against such accused.
Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require Moreover, there is nothing in our laws that would prevent the President
that the respondent in a criminal case actually file his counter-affidavits from waiving the privilege. Thus, if so minded the President may shed the
before the preliminary investigation is deemed completed. All that is protection afforded by the privilege and submit to the court's jurisdiction.
required is that the respondent be given the opportunity to submit counter- The choice of whether to exercise the privilege or to waive it is solely the
affidavits if he is so minded. President's prerogative. It is a decision that cannot be assumed and imposed
by any other person.
The second issue, raised by petitioner Beltran, calls for an interpretation of
As regards the contention of petitioner Beltran that he could not be held BARAQUEL, IMELDA C. NICOLAS, MARVIC
liable for libel because of the privileged character or the publication, the M.V.F. LEONEN, NERI JAVIER COLMENARES,
Court reiterates that it is not a trier of facts and that such a defense is best MOVEMENT OF CONCERNED CITIZENS FOR
left to the trial court to appreciate after receiving the evidence of the parties. CIVIL LIBERTIES REPRESENTED BY AMADO GAT
As to petitioner Beltran's claim that to allow the libel case to proceed would Petitioners,
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point. - versus -

The petitions fail to establish that public respondents, through their separate
acts, gravely abused their discretion as to amount to lack of jurisdiction. EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
Hence, the writs of certiorari and prohibition prayed for cannot issue. AVELINO J. CRUZ, JR., SECRETARY, DND
WHEREFORE, finding no grave abuse of discretion amounting to excess or GENEROSO SENGA, AFP CHIEF OF STAFF,
lack of jurisdiction on the part of the public respondents, the Court Resolved ARTURO LOMIBAO, CHIEF PNP,
to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to Respondents.
maintain the status quo contained in the Resolution of the Court en banc x-------------------------------------------------x
dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is KILUSANG MAYO UNO, REPRESENTED BY ITS
PROF. RANDOLF S. DAVID, LORENZO TA�ADA G.R. No. 171396 Petitioners,
Petitioners, PUNO, - versus -
LOMIBAO, CHIEF, PHILIPPINE NATIONAL GARCIA, and x-------------------------------------------------x
Respondents. Petitioner,
x-------------------------------------------------x Promulgated: - versus -
PUBLISHING CO., INC., May 3, 2006
- versus - Respondents.
Respondents. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. G.R. No. 171400
x-------------------------------------------------x GARCIA AND INTEGRATED BAR OF THE
x-------------------------------------------------x Commander-in-Chief, do hereby command the Armed Forces of the
LOREN B. LEGARDA, Philippines, to maintain law and order throughout the Philippines, prevent
Petitioner, G.R. No. 171489 or suppress all forms of lawless violence as well as any act of insurrection
or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
- versus - direction; and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.

GLORIA MACAPAGAL-ARROYO, IN HER She cited the following facts as bases:

IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY WHEREAS, over these past months, elements in the political opposition have
AS DIRECTOR-GENERAL OF THE PHILIPPINE conspired with authoritarians of the extreme Left represented by the NDF-
NATIONAL POLICE (PNP); GENEROSO SENGA, CPP-NPA and the extreme Right, represented by military adventurists �
IN HIS CAPACITY AS CHIEF OF STAFF OF THE the historical enemies of the democratic Philippine State � who are now in
ARMED FORCES OF THE PHILIPPINES (AFP); a tactical alliance and engaged in a concerted and systematic conspiracy,
AND EDUARDO ERMITA, IN HIS CAPACITY AS over a broad front, to bring down the duly constituted Government elected
WHEREAS, these conspirators have repeatedly tried to bring down the

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

certain segments of the national media;

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

G.R. No. 171424 obstructing governance including hindering the growth of the economy and
sabotaging the people�s confidence in government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;

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

SANDOVAL-GUTIERREZ, J.: WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength � the use of force � cannot WHEREAS, the activities above-described, their consequences, ramifications
make wrongs into rights. In this regard, the courts should be vigilant in and collateral effects constitute a clear and present danger to the safety and
safeguarding the constitutional rights of the citizens, specifically their liberty. the integrity of the Philippine State and of the Filipino people;

Chief Justice Artemio V. Panganiban�s philosophy of liberty is thus most

relevant. He said: �In cases involving liberty, the scales of justice should On the same day, the President issued G. O. No. 5 implementing PP 1017,
weigh heavily against government and in favor of the poor, the oppressed, thus:
the marginalized, the dispossessed and the weak.� Laws and actions that
restrict fundamental rights come to the courts �with a heavy presumption WHEREAS, over these past months, elements in the political opposition
against their constitutional validity.�[2] have conspired with authoritarians of the extreme Left, represented by the
These seven (7) consolidated petitions for certiorari and prohibition NDF-CPP-NPA and the extreme Right, represented by military adventurists -
allege that in issuing Presidential Proclamation No. 1017 (PP the historical enemies of the democratic Philippine State � and who are
1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal- now in a tactical alliance and engaged in a concerted and systematic
Arroyo committed grave abuse of discretion. Petitioners contend that conspiracy, over a broad front, to bring down the duly-constituted
respondent officials of the Government, in their professed efforts to defend Government elected in May 2004;
and preserve democratic institutions, are actually trampling upon the very WHEREAS, these conspirators have repeatedly tried to bring down our
freedom guaranteed and protected by the Constitution. Hence, such republican government;
issuances are void for being unconstitutional.
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree WHEREAS, these series of actions is hurting the Philippine State by
of liberty, without which, law becomes tyranny, with the degree of law, obstructing governance, including hindering the growth of the economy and
without which, liberty becomes license?[3] sabotaging the people�s confidence in the government and their faith in the
On February 24, 2006, as the nation celebrated the 20th Anniversary of future of this country;
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus: WHEREAS, these actions are adversely affecting the economy;

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of WHEREAS, these activities give totalitarian forces; of both the extreme Left
the Philippines and Commander-in-Chief of the Armed Forces of the and extreme Right the opening to intensify their avowed aims to bring down
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 the democratic Philippine State;
of the Philippine Constitution which states that: �The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . .,� and in my capacity as their
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and On February 17, 2006, the authorities got hold of a document entitled
preservation of the democratic institutions and the State the primary duty of �Oplan Hackle I � which detailed plans for bombings and attacks during
Government; the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members and
WHEREAS, the activities above-described, their consequences, ramifications President Arroyo herself.[6] Upon the advice of her security, President
and collateral effects constitute a clear and present danger to the safety and Arroyo decided not to attend the Alumni Homecoming. The next day, at the
the integrity of the Philippine State and of the Filipino people; height of the celebration, a bomb was found and detonated at the PMA
parade ground.
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse
declaring a State of National Emergency; in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers Group and the National People�s Army (NPA), a tape recorder, audio
vested in me under the Constitution as President of the Republic of the cassette cartridges, diskettes, and copies of subversive documents.[7] Prior
Philippines, and Commander-in-Chief of the Republic of the Philippines, and to his arrest, Lt. San Juan announced through DZRH that the �Magdalo�s
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.�
upon the Armed Forces of the Philippines (AFP) and the Philippine National On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
Police (PNP), to prevent and suppress acts of terrorism and lawless violence that members of the PNP- Special Action Force were planning to
in the country; defect. Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to �disavow� any defection. The latter promptly obeyed and
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, issued a public statement: �All SAF units are under the effective control of
as well as the officers and men of the AFP and PNP, to immediately carry out responsible and trustworthy officers with proven integrity and
the necessary and appropriate actions and measures to suppress and unquestionable loyalty.�
prevent acts of terrorism and lawless violence. On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquino�s brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly
On March 3, 2006, exactly one week after the declaration of a state of Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
national emergency and after all these petitions had been filed, the President critic, called a U.S. government official about his group�s plans if President
lifted PP 1017. She issued Proclamation No. 1021 which reads: Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the identified him as B/Gen. Danilo Lim, Commander of the Army�s elite Scout
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
Ranger. Lim said �it was all systems go for the planned movement against
declaring a state of national emergency;
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
WHEREAS, by virtue of General Order No.5 and No.6 dated February
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
24, 2006, which were issued on the basis of Proclamation No. 1017, the
(AFP), that a huge number of soldiers would join the rallies to provide a
Armed Forces of the Philippines (AFP) and the Philippine National Police
critical mass and armed component to the Anti-Arroyo protests to be held on
(PNP), were directed to maintain law and order throughout the Philippines,
February 24, 2005. According to these two (2) officers, there was no way
prevent and suppress all form of lawless violence as well as any act of
they could possibly stop the soldiers because they too, were breaking the
rebellion and to undertake such action as may be necessary;
chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the chain
WHEREAS, the AFP and PNP have effectively prevented, suppressed
of command. He immediately took custody of B/Gen. Lim and directed Col.
and quelled the acts lawless violence and rebellion;
Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge
Republic of the Philippines, by virtue of the powers vested in me by law,
alliances with its members and key officials. NPA spokesman Gregorio �Ka
hereby declare that the state of national emergency has ceased to exist.
Roger� Rosal declared: �The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming
year of accomplishing its immediate task of bringing down the Arroyo regime;
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
of rendering it to weaken and unable to rule that it will not take much longer
respondents stated that the proximate cause behind the executive issuances
to end it.�[9]
was the conspiracy among some military officers, leftist insurgents of the
On the other hand, Cesar Renerio, spokesman for the National Democratic
New People�s Army (NPA), and some members of the political opposition in
Front (NDF) at North Central Mindanao, publicly announced: �Anti-Arroyo
a plot to unseat or assassinate President Arroyo.[4] They considered the aim
to oust or assassinate the President and take-over the reigns of government groups within the military and police are growing rapidly, hastened by the
as a clear and present danger. economic difficulties suffered by the families of AFP officers and enlisted
During the oral arguments held on March 7, 2006, the Solicitor General personnel who undertake counter-insurgency operations in the field.� He
specified the facts leading to the issuance of PP 1017 and G.O. No. claimed that with the forces of the national democratic movement, the anti-
5. Significantly, there was no refutation from petitioners� counsels. Arroyo conservative political parties, coalitions, plus the groups that have
The Solicitor General argued that the intent of the Constitution is to give been reinforcing since June 2005, it is probable that the President�s ouster
full discretionary powers to the President in determining the necessity of is nearing its concluding stage in the first half of 2006.
calling out the armed forces. He emphasized that none of the petitioners Respondents further claimed that the bombing of telecommunication towers
has shown that PP 1017 was without factual bases. While he explained that and cell sites in Bulacan and Bataan was also considered as additional factual
it is not respondents� task to state the facts behind the questioned basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army
Proclamation, however, they are presenting the same, narrated hereunder, outpost in Benguet resulting in the death of three (3) soldiers. And also the
for the elucidation of the issues. directive of the Communist Party of the Philippines ordering its front
On January 17, 2006, Captain Nathaniel Rabonza and First organizations to join 5,000 Metro Manila radicals and 25,000 more from the
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, provinces in mass protests.[10]
members of the Magdalo Group indicted in the Oakwood mutiny, escaped By midnight of February 23, 2006, the President convened her security
their detention cell in Fort Bonifacio, Taguig City. In a public statement, they advisers and several cabinet members to assess the gravity of the fermenting
peace and order situation. She directed both the AFP and the PNP to
vowed to remain defiant and to elude arrest at all costs. They called upon
account for all their men and ensure that the chain of command remains
the people to �show and proclaim our displeasure at the sham regime. Let
solid and undivided. To protect the young students from any possible
us demonstrate our disgust, not only by going to the streets in protest, but
trouble that might break loose on the streets, the President suspended
also by wearing red bands on our left arms.� [5]
classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance Retired Major General Ramon Monta�o, former head of the Philippine
of PP 1017 and G.O. No. 5. Constabulary, was arrested while with his wife and golfmates at the Orchard
Immediately, the Office of the President announced the cancellation of all Golf and Country Club in Dasmari�as, Cavite.
programs and activities related to the 20th anniversary celebration of Edsa Attempts were made to arrest Anakpawis Representative Satur Ocampo,
People Power I; and revoked the permits to hold rallies issued earlier by the Representative Rafael Mariano, Bayan Muna Representative Teodoro
local governments. Justice Secretary Raul Gonzales stated that political Casi�o and Gabriela Representative Liza Maza. Bayan
rallies, which to the President�s mind were organized for purposes of Muna Representative Josel Virador was arrested at the PAL Ticket Office in
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor Davao City. Later, he was turned over to the custody of the House of
announced that �warrantless arrests and take-over of facilities, including Representatives where the �Batasan 5� decided to stay indefinitely.
media, can already be implemented.�[11] Let it be stressed at this point that the alleged violations of the rights of
Undeterred by the announcements that rallies and public assemblies would Representatives Beltran, Satur Ocampo, et al., are not being raised in these
not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] petitions.
and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
marched from various parts of Metro Manila with the intention of converging of national emergency has ceased to exist.
at the EDSA shrine. Those who were already near the EDSA site were In the interim, these seven (7) petitions challenging the constitutionality of
violently dispersed by huge clusters of anti-riot police. The well-trained PP 1017 and G.O. No. 5 were filed with this Court against the above-named
policemen used truncheons, big fiber glass shields, water cannons, and tear respondents. Three (3) of these petitions impleaded President Arroyo as
gas to stop and break up the marching groups, and scatter the massed respondent.
participants. The same police action was used against the protesters In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
marching forward to Cubao, Quezon City and to the corner of Santolan Street on the grounds that (1) it encroaches on the emergency powers of
and EDSA. That same evening, hundreds of riot policemen broke up an EDSA Congress; (2) it is a subterfuge to avoid the constitutional requirements for
celebration rally held along Ayala Avenue and Paseo de Roxas Street in the imposition of martial law; and (3) it violates the constitutional guarantees
Makati City.[12] of freedom of the press, of speech and of assembly.
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the In G.R. No. 171409, petitioners Ninez Cacho-Olivares
ground for the dispersal of their assemblies. and Tribune Publishing Co., Inc. challenged the CIDG�s act of raiding
During the dispersal of the rallyists along EDSA, police arrested (without the Daily Tribune offices as a clear case of �censorship� or �prior
warrant) petitioner Randolf S. David, a professor at the University of the restraint.� They also claimed that the term �emergency� refers only to
Philippines and newspaper columnist. Also arrested was his companion, tsunami, typhoon, hurricane and similar occurrences, hence, there is
Ronald Llamas, president of party-list Akbayan. �absolutely no emergency� that warrants the issuance of PP 1017.
At around 12:20 in the early morning of February 25, 2006, operatives of the In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of Escudero, and twenty one (21) other members of the House of
PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The Representatives, including Representatives Satur Ocampo, Rafael Mariano,
raiding team confiscated news stories by reporters, documents, pictures, and Teodoro Casi�o, Liza Maza, and Josel Virador. They asserted that PP 1017
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon and G.O. No. 5 constitute �usurpation of legislative powers�; �violation of
City were stationed inside the editorial and business offices of the freedom of expression� and �a declaration of martial law.� They alleged
newspaper; while policemen from the Manila Police District were stationed that President Arroyo �gravely abused her discretion in calling out the
outside the building.[13] armed forces without clear and verifiable factual basis of the possibility of
A few minutes after the search and seizure at the Daily Tribune offices, the lawless violence and a showing that there is necessity to do so.�
police surrounded the premises of another pro-opposition paper, Malaya, In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
and its sister publication, the tabloid Abante. averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
The raid, according to Presidential Chief of Staff Michael arrogate unto President Arroyo the power to enact laws and
Defensor, is �meant to show a �strong presence,� to tell media outlets decrees; (2) their issuance was without factual basis; and (3) they violate
not to connive or do anything that would help the rebels in bringing down this freedom of expression and the right of the people to peaceably assemble to
government.� The PNP warned that it would take over any media redress their grievances.
organization that would not follow �standards set by the government during In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
the state of national emergency.� Director General Lomibao stated that PP 1017 and G.O. No. 5 are unconstitutional because they
that �if they do not follow the standards � and the standards are - if they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article
would contribute to instability in the government, or if they do not subscribe III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the
to what is in General Order No. 5 and Proc. No. 1017 � we will recommend a Constitution.
�takeover.�� National Telecommunications� Commissioner Ronald Solis In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
urged television and radio networks to �cooperate� with the government 1017 is an �arbitrary and unlawful exercise by the President of her Martial
for the duration of the state of national emergency. He asked Law powers.� And assuming that PP 1017 is not really a declaration of
for �balanced reporting� from broadcasters when covering the events Martial Law, petitioners argued that �it amounts to an exercise by the
surrounding the coup attempt foiled by the government. He warned that his President of emergency powers without congressional approval.� In
agency will not hesitate to recommend the closure of any broadcast outfit addition, petitioners asserted that PP 1017 �goes beyond the nature and
that violates rules set out for media coverage when the national security is function of a proclamation as defined under the Revised Administrative
threatened.[14] Code.�
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
representing the Anakpawis Party and Chairman of Kilusang Mayo PP 1017 and G.O. No. 5 are �unconstitutional for being violative of the
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a freedom of expression, including its cognate rights such as freedom of the
warrant for his arrest dated 1985. Beltran�s lawyer explained that the press and the right to access to information on matters of public concern, all
warrant, which stemmed from a case of inciting to rebellion filed during the guaranteed under Article III, Section 4 of the 1987 Constitution.� In this
Marcos regime, had long been quashed. Beltran, however, is not a party in regard, she stated that these issuances prevented her from fully prosecuting
any of these petitions. her election protest pending before the Presidential Electoral Tribunal.
When members of petitioner KMU went to Camp Crame to visit Beltran, they In respondents� Consolidated Comment, the Solicitor General
were told they could not be admitted because of PP 1017 and G.O. No. countered that: first, the petitions should be dismissed for
5. Two members were arrested and detained, while the rest were dispersed being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
by the police. (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
Bayan Muna Representative Satur Ocampo eluded arrest when the police (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners
went after him during a public forum at the Sulo Hotel in Quezon City. But to implead President Arroyo as respondent; fourth, PP 1017 has
his two drivers, identified as Roel and Art, were taken into custody. constitutional and legal basis; and fifth, PP 1017 does not violate the
people�s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the as they do the people�s basic rights to freedom of expression, of assembly
parties on the above interlocking issues which may be summarized as and of the press. Moreover, the Court has the duty to formulate guiding and
follows: controlling constitutional precepts, doctrines or rules. It has the symbolic
A. PROCEDURAL: function of educating the bench and the bar, and in the present
1) Whether the issuance of PP 1021 renders the petitions moot and petitions, the military and the police, on the extent of the protection given
academic. by constitutional guarantees.[35] And lastly, respondents� contested actions
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. are capable of repetition. Certainly, the petitions are subject to
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), judicial review.
and 171424 (Legarda) have legal standing. In their attempt to prove the alleged mootness of this case, respondents
B. SUBSTANTIVE: cited Chief Justice Artemio V. Panganiban�s Separate Opinion in Sanlakas v.
1) Whether the Supreme Court can review the factual bases of PP 1017. Executive Secretary.[36] However, they failed to take into account the Chief
2) Whether PP 1017 and G.O. No. 5 are unconstitutional. Justice�s very statement that an otherwise �moot� case may still be
a. Facial Challenge decided �provided the party raising it in a proper case has been and/or
b. Constitutional Basis continues to be prejudiced or damaged as a direct result of its
c. As Applied Challenge issuance.� The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
A. PROCEDURAL II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
First, we must resolve the procedural roadblocks. deems it imperative to have a more than passing discussion on legal standing
I- Moot and Academic Principle or locus standi.
One of the greatest contributions of the American system to this
country is the concept of judicial review enunciated in Marbury v. Locus standi is defined as �a right of appearance in a court of justice on
Madison.[21] This concept rests on the extraordinary simple foundation -- a given question.�[37] In private suits, standing is governed by the �real-
The Constitution is the supreme law. It was ordained by the people, the parties-in interest� rule as contained in Section 2, Rule 3 of the 1997 Rules
ultimate source of all political authority. It confers limited powers on the of Civil Procedure, as amended. It provides that �every action must be
national government. x x x If the government consciously or unconsciously prosecuted or defended in the name of the real party in
oversteps these limitations there must be some authority competent to
interest.� Accordingly, the �real-party-in interest� is �the party who
hold it in control, to thwart its unconstitutional attempt, and thus to
stands to be benefited or injured by the judgment in the suit or the party
vindicate and preserve inviolate the will of the people as expressed in the
entitled to the avails of the suit.�[38] Succinctly put, the plaintiff�s standing
Constitution. This power the courts exercise. This is the beginning and the
is based on his own right to the relief sought.
end of the theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a
The difficulty of determining locus standi arises in public
�self-starting capacity.�[23] Courts may exercise such power only when the
suits. Here, the plaintiff who asserts a �public right� in assailing an
following requisites are present: first, there must be an actual case or
allegedly illegal official action, does so as a representative of the general
controversy; second, petitioners have to raise a question of
public. He may be a person who is affected no differently from any other
constitutionality; third, the constitutional question must be raised at the
person. He could be suing as a �stranger,� or in the category of a
earliest opportunity; and fourth, the decision of the constitutional question
�citizen,� or �taxpayer.� In either case, he has to adequately show that
must be necessary to the determination of the case itself.[24]
he is entitled to seek judicial protection. In other words, he has to make out
Respondents maintain that the first and second requisites are absent, hence,
a sufficient interest in the vindication of the public order and the securing of
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite relief as a �citizen� or �taxpayer.
legal claims susceptible of judicial resolution. It is �definite and concrete, Case law in most jurisdictions now allows both �citizen� and
touching the legal relations of parties having adverse legal interest;� a real �taxpayer� standing in public actions. The distinction was first laid down
and substantial controversy admitting of specific relief.[25] The Solicitor in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayer�s
General refutes the existence of such actual case or controversy, contending suit is in a different category from the plaintiff in a citizen�s suit. In the
that the present petitions were rendered �moot and academic� by former, the plaintiff is affected by the expenditure of public funds, while in
President Arroyo�s issuance of PP 1021. the latter, he is but the mere instrument of the public concern. As held by
Such contention lacks merit. the New York Supreme Court in People ex rel Case v. Collins:[40] �In matter
A moot and academic case is one that ceases to present a justiciable of mere public right, however�the people are the real parties�It is at
controversy by virtue of supervening events,[26] so that a declaration thereon least the right, if not the duty, of every citizen to interfere and see that a
would be of no practical use or value.[27] Generally, courts decline public offence be properly pursued and punished, and that a public
jurisdiction over such case[28] or dismiss it on ground of mootness.[29] grievance be remedied.� With respect to taxpayer�s suits, Terr v.
The Court holds that President Arroyo�s issuance of PP 1021 did not render Jordan[41] held that �the right of a citizen and a taxpayer to maintain an
the present petitions moot and academic. During the eight (8) days that PP action in courts to restrain the unlawful use of public funds to his injury
1017 was operative, the police officers, according to petitioners, committed cannot be denied.�
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or However, to prevent just about any person from seeking judicial
valid? Do they justify these alleged illegal acts? These are the vital issues interference in any official policy or act with which he disagreed with, and
that must be resolved in the present petitions. It must be stressed that �an thus hinders the activities of governmental agencies engaged in public
unconstitutional act is not a law, it confers no rights, it imposes no duties, it service, the United State Supreme Court laid down the more stringent
affords no protection; it is in legal contemplation, inoperative.�[30] �direct injury� test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
The �moot and academic� principle is not a magical formula that can Ullman.[43] The same Court ruled that for a private individual to invoke the
automatically dissuade the courts in resolving a case. Courts will decide judicial power to determine the validity of an executive or legislative
cases, otherwise moot and academic, if: first, there is a grave violation of the action, he must show that he has sustained a direct injury as a result of that
Constitution;[31] second, the exceptional character of the situation and the action, and it is not sufficient that he has a general interest common to all
paramount public interest is involved;[32] third, when constitutional issue members of the public.
raised requires formulation of controlling principles to guide the bench, the This Court adopted the �direct injury� test in our jurisdiction. In People v.
bar, and the public;[33] and fourth, the case is capable of repetition yet Vera,[44] it held that the person who impugns the validity of a statute must
evading review.[34] have �a personal and substantial interest in the case such that he has
All the foregoing exceptions are present here and justify this Court�s sustained, or will sustain direct injury as a result.� The Vera doctrine was
assumption of jurisdiction over the instant petitions. Petitioners alleged that upheld in a litany of cases, such as, Custodio v. President of the
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no Senate,[45] Manila Race Horse Trainers� Association v. De la
question that the issues being raised affect the public�s interest, involving
Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of Now, the application of the above principles to the present petitions.
the Philippines v. Felix.[48] The locus standi of petitioners in G.R. No. 171396, particularly David and
However, being a mere procedural technicality, the requirement of locus Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
standi may be waived by the Court in the exercise of its discretion. This was 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged �direct
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where injury� resulting from �illegal arrest� and �unlawful search� committed
the �transcendental importance� of the cases prompted the Court to act by police operatives pursuant to PP 1017. Rightly so, the Solicitor General
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. does not question their legal standing.
Comelec,[50] this Court resolved to pass upon the issues raised due to the In G.R. No. 171485, the opposition Congressmen alleged there was
�far-reaching implications� of the petition notwithstanding its categorical usurpation of legislative powers. They also raised the issue of whether or
statement that petitioner therein had no personality to file the suit. Indeed, not the concurrence of Congress is necessary whenever the alarming powers
there is a chain of cases where this liberal policy has been observed, allowing incident to Martial Law are used. Moreover, it is in the interest of justice
ordinary citizens, members of Congress, and civic organizations to prosecute that those affected by PP 1017 can be represented by their Congressmen in
actions involving the constitutionality or validity of laws, regulations and bringing to the attention of the Court the alleged violations of their basic
rulings.[51] rights.
Thus, the Court has adopted a rule that even where the petitioners have In G.R. No. 171400, (ALGI), this Court applied the liberality rule
failed to show direct injury, they have been allowed to sue under the in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan
principle of �transcendental importance.� Pertinent are the following ng Pilipinas, Inc. v. Tan,[61]Association of Small Landowners in the Philippines,
cases: Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the Gaming Corporation,[63] and Ta�ada v. Tuvera,[64] that when the issue
enforcement of the constitutional right to information and the equitable concerns a public right, it is sufficient that the petitioner is a citizen and has
diffusion of natural resources are matters of transcendental importance an interest in the execution of the laws.
which clothe the petitioner with locus standi; In G.R. No. 171483, KMU�s assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held standing. Organizations may be granted standing to assert the rights of
that �given the transcendental importance of the issues involved, the their members.[65] We take judicial notice of the announcement by the
Court may relax the standing requirements and allow the suit to prosper Office of the President banning all rallies and canceling all permits for public
despite the lack of direct injury to the parties seeking judicial review� of assemblies following the issuance of PP 1017 and G.O. No. 5.
the Visiting Forces Agreement; In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners allege any direct or potential injury which the IBP as an institution or its
may not file suit in their capacity as taxpayers absent a showing that members may suffer as a consequence of the issuance of PP No. 1017 and
�Balikatan 02-01� involves the exercise of Congress� taxing or spending G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. that the mere invocation by the IBP of its duty to preserve the rule of law and
Zamora,[55] that in cases of transcendental importance, the cases must be nothing more, while undoubtedly true, is not sufficient to clothe it with
settled promptly and definitely and standing requirements may be relaxed. standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental
By way of summary, the following rules may be culled from the cases importance of the issue, this Court declares that petitioner have locus standi.
decided by this Court. Taxpayers, voters, concerned citizens, and legislators In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
may be accorded standing to sue, provided that the following requirements instant petition as there are no allegations of illegal disbursement of public
are met: funds. The fact that she is a former Senator is of no consequence. She can
(1) the cases involve constitutional issues; no longer sue as a legislator on the allegation that her prerogatives as a
(2) for taxpayers, there must be a claim of illegal disbursement of lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that
public funds or that the tax measure is unconstitutional; she is a media personality will not likewise aid her because there was no
(3) for voters, there must be a showing of obvious interest in the showing that the enforcement of these issuances prevented her from
validity of the election law in question; pursuing her occupation. Her submission that she has pending electoral
(4) for concerned citizens, there must be a showing that the issues protest before the Presidential Electoral Tribunal is likewise of no
raised are of transcendental importance which must be settled early; and relevance. She has not sufficiently shown that PP 1017 will affect the
(5) for legislators, there must be a claim that the official action proceedings or result of her case. But considering once more the
complained of infringes upon their prerogatives as legislators. transcendental importance of the issue involved, this Court may relax the
Significantly, recent decisions show a certain toughening in the Court�s standing rules.
attitude toward legal standing. It must always be borne in mind that the question of locus standi is but
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status corollary to the bigger question of proper exercise of judicial power. This is
of Kilosbayan as a people�s organization does not give it the requisite the underlying legal tenet of the �liberality doctrine� on legal standing. It
personality to question the validity of the on-line lottery contract, more so cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
where it does not raise any issue of constitutionality. Moreover, it cannot judicial question which is of paramount importance to the Filipino
sue as a taxpayer absent any allegation that public funds are being misused. people. To paraphrase Justice Laurel, the whole of Philippine society now
Nor can it sue as a concerned citizen as it does not allege any specific injury it waits with bated breath the ruling of this Court on this very critical matter.
has suffered. The petitions thus call for the application of the �transcendental
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. importance� doctrine, a relaxation of the standing requirements for the
v. Comelec,[57] the Court reiterated the �direct injury� test with respect to petitioners in the �PP 1017 cases.�
concerned citizens� cases involving constitutional issues. It held that
�there must be a showing that the citizen personally suffered some actual This Court holds that all the petitioners herein have locus standi.
or threatened injury arising from the alleged illegal official act.�
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Incidentally, it is not proper to implead President Arroyo as
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not respondent. Settled is the doctrine that the President, during his tenure of
demonstrated any injury to itself or to its leaders, members or supporters. office or actual incumbency,[67] may not be sued in any civil or criminal case,
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners and there is no need to provide for it in the Constitution or law. It will
who are members of Congress have standing to sue, as they claim that the degrade the dignity of the high office of the President, the Head of State, if
President�s declaration of a state of rebellion is a usurpation of the he can be dragged into court litigations while serving as such. Furthermore,
emergency powers of Congress, thus impairing their legislative powers. As it is important that he be freed from any form of harassment, hindrance or
to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the distraction to enable him to fully attend to the performance of his official
Court declared them to be devoid of standing, equating them with the LDP duties and functions. Unlike the legislative and judicial branch, only one
in Lacson. constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the Petitioners failed to show that President Arroyo�s exercise of the calling-out
Government. However, this does not mean that the President is not power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
accountable to anyone. Like any other official, he remains accountable to Solicitor General�s Consolidated Comment and Memorandum shows a
the people[68] but he may be removed from office only in the mode provided detailed narration of the events leading to the issuance of PP 1017, with
by law and that is by impeachment.[69] supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the
B. SUBSTANTIVE defections in the military, particularly in the Philippine Marines, and the
I. Review of Factual Bases reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not showing the growing alliance between the NPA and the military. Petitioners
�necessary� for President Arroyo to issue such Proclamation. presented nothing to refute such events. Thus, absent any contrary
The issue of whether the Court may review the factual bases of the allegations, the Court is convinced that the President was justified in issuing
President�s exercise of his Commander-in-Chief power has reached its PP 1017 calling for military aid.
distilled point - from the indulgent days of Barcelon v.
Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v.
Enrile.[74] The tug-of-war always cuts across the line defining �political Indeed, judging the seriousness of the incidents, President Arroyo was not
questions,� particularly those questions �in regard to which full expected to simply fold her arms and do nothing to prevent or suppress what
discretionary authority has been delegated to the legislative or executive she believed was lawless violence, invasion or rebellion. However, the
branch of the government.�[75] Barcelon and Montenegro were in unison in exercise of such power or duty must not stifle liberty.
declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the II. Constitutionality of PP 1017 and G.O. No. 5
courts. Lansang took the opposite view. There, the members of the Court
were unanimous in the conviction that the Court has the authority to inquire Doctrines of Several Political Theorists
into the existence of factual bases in order to determine their constitutional on the Power of the President
sufficiency. From the principle of separation of powers, it shifted the focus in Times of Emergency
to the system of checks and balances, �under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by
the Basic Law, and the authority to determine whether or not he has This case brings to fore a contentious subject -- the power of the President in
so acted is vested in the Judicial Department, which in this respect, is, times of emergency. A glimpse at the various political theories relating to
in turn, constitutionally supreme.�[76] In 1973, the this subject provides an adequate backdrop for our ensuing discussion.
unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the
Court was almost evenly divided on the issue of whether the
validity of the imposition of Martial Law is a political or John Locke, describing the architecture of civil government, called upon the
justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly English doctrine of prerogative to cope with the problem of emergency. In
diluted Lansang. It declared that there is a need to re-examine the latter times of danger to the nation, positive law enacted by the legislature might
case, ratiocinating that �in times of war or national emergency, the be inadequate or even a fatal obstacle to the promptness of action necessary
President must be given absolute control for the very life of the nation and to avert catastrophe. In these situations, the Crown retained a prerogative
the government is in great peril. The President, it intoned, is answerable �power to act according to discretion for the public good, without the
only to his conscience, the People, and God.�[79] proscription of the law and sometimes even against it.�[84] But Locke
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most recognized that this moral restraint might not suffice to avoid abuse of
pertinent to these cases at bar -- echoed a principle similar prerogative powers. Who shall judge the need for resorting to the
to Lansang. While the Court considered the President�s �calling-out� prerogative and how may its abuse be avoided? Here, Locke readily
power as a discretionary power solely vested in his wisdom, it stressed that admitted defeat, suggesting that �the people have no other remedy in this,
�this does not prevent an examination of whether such power was as in all other cases where they have no judge on earth, but to appeal to
exercised within permissible constitutional limits or whether it was Heaven.�[85]
exercised in a manner constituting grave abuse of discretion.� This ruling
is mainly a result of the Court�s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an Jean-Jacques Rousseau also assumed the need for temporary suspension of
appropriate action the validity of the acts of the political democratic processes of government in time of emergency. According to
departments. Under the new definition of judicial power, the courts are him:
authorized not only �to settle actual controversies involving rights which The inflexibility of the laws, which prevents them from adopting themselves
are legally demandable and enforceable,� but also �to determine whether to circumstances, may, in certain cases, render them disastrous and make
or not there has been a grave abuse of discretion amounting to lack or them bring about, at a time of crisis, the ruin of the State�
excess of jurisdiction on the part of any branch or instrumentality of the
government.� The latter part of the authority represents a broadening of It is wrong therefore to wish to make political institutions as strong as to
judicial power to enable the courts of justice to review what was before a render it impossible to suspend their operation. Even Sparta allowed its law
forbidden territory, to wit, the discretion of the political departments of the to lapse...
government.[81] It speaks of judicial prerogative not only in terms
of power but also of duty.[82] If the peril is of such a kind that the paraphernalia of the laws are an obstacle
to their preservation, the method is to nominate a supreme lawyer, who
As to how the Court may inquire into the President�s exercise of shall silence all the laws and suspend for a moment the sovereign authority.
In such a case, there is no doubt about the general will, and it clear that the
power, Lansang adopted the test that �judicial inquiry can go no
people�s first intention is that the State shall not perish.[86]
further than to satisfy the Court not that the President�s decision
is correct,� but that �the President did not act arbitrarily.� Thus, the
standard laid down is not correctness, but arbitrariness.[83] In Integrated Bar
Rosseau did not fear the abuse of the emergency dictatorship or �supreme
of the Philippines, this Court further ruled that �it is incumbent upon the
magistracy� as he termed it. For him, it would more likely be cheapened by
petitioner to show that the President�s decision is totally bereft of factual
�indiscreet use.� He was unwilling to rely upon an �appeal to
basis� and that if he fails, by way of proof, to support his assertion, then
heaven.� Instead, he relied upon a tenure of office of prescribed duration
�this Court cannot undertake an independent investigation beyond the
to avoid perpetuation of the dictatorship.[87]
4) �all uses of emergency powers and all readjustments in the organization
John Stuart Mill concluded his ardent defense of representative government: of the government should be effected in pursuit of constitutional or legal
�I am far from condemning, in cases of extreme necessity, the assumption requirements�
of absolute power in the form of a temporary dictatorship.�[88]
5) � no dictatorial institution should be adopted, no right invaded, no
Nicollo Machiavelli�s view of emergency powers, as one element in the regular procedure altered any more than is absolutely necessary for the
whole scheme of limited government, furnished an ironic contrast to the conquest of the particular crisis . . .
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus: 6) The measures adopted in the prosecution of the a constitutional
Now, in a well-ordered society, it should never be necessary to resort dictatorship should never be permanent in character or effect�
to extra �constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once 7) The dictatorship should be carried on by persons representative of every
established for good objects, they will in a little while be disregarded under part of the citizenry interested in the defense of the existing constitutional
that pretext but for evil purposes. Thus, no republic will ever be perfect if she order. . .
has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it.[89] 8) Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .

Machiavelli � in contrast to Locke, Rosseau and Mill � sought to 9) The decision to terminate a constitutional dictatorship, like the decision
incorporate into the constitution a regularized system of standby emergency to institute one should never be in the hands of the man or men who
powers to be invoked with suitable checks and controls in time of national constitute the dictator. . .
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of 10) No constitutional dictatorship should extend beyond the termination of
emergency, with effective constitutional restraints.[90] the crisis for which it was instituted�

Contemporary political theorists, addressing themselves to the problem of 11) �the termination of the crisis must be followed by a complete return as
response to emergency by constitutional democracies, have employed the possible to the political and governmental conditions existing prior to the
doctrine of constitutional dictatorship.[91] Frederick M. Watkins saw �no initiation of the constitutional dictatorship�[99]
reason why absolutism should not be used as a means for the defense of
liberal institutions,� provided it �serves to protect established
institutions from the danger of permanent injury in a period of temporary Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency and is followed by a prompt return to the previous forms of emergency powers than did Watkins. He would secure to Congress final
political life.�[92] He recognized the two (2) key elements of the problem of responsibility for declaring the existence or termination of an emergency,
emergency governance, as well as all constitutional governance: increasing and he places great faith in the effectiveness of congressional investigating
administrative powers of the executive, while at the same time �imposing committees.[100]
limitation upon that power.�[93] Watkins placed his real faith in a scheme Scott and Cotter, in analyzing the above contemporary theories in light
of constitutional dictatorship. These are the conditions of success of such a of recent experience, were one in saying that, �the suggestion that
dictatorship: �The period of dictatorship must be relatively democracies surrender the control of government to an authoritarian ruler
short�Dictatorship should always be strictly legitimate in character�Final in time of grave danger to the nation is not based upon sound
authority to determine the need for dictatorship in any given case must constitutional theory.� To appraise emergency power in terms of
never rest with the dictator himself��[94] and the objective of such an constitutional dictatorship serves merely to distort the problem and hinder
emergency dictatorship should be �strict political conservatism.� realistic analysis. It matters not whether the term �dictator� is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] �It all chief executives administering emergency powers. However used,
is a problem of concentrating power � in a government where power has �constitutional dictatorship� cannot be divorced from the implication of
consciously been divided � to cope with� situations of unprecedented suspension of the processes of constitutionalism. Thus, they favored instead
magnitude and gravity. There must be a broad grant of powers, subject to the �concept of constitutionalism� articulated by Charles H. McIlwain:
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end.�[96] Friedrich, too, offered criteria for judging A concept of constitutionalism which is less misleading in the analysis of
the adequacy of any of scheme of emergency powers, to wit: �The problems of emergency powers, and which is consistent with the findings of
emergency executive must be appointed by constitutional means � i.e., he this study, is that formulated by Charles H. McIlwain. While it does not by
must be legitimate; he should not enjoy power to determine the existence any means necessarily exclude some indeterminate limitations upon the
of an emergency; emergency powers should be exercised under a strict substantive powers of government, full emphasis is placed upon procedural
time limitation; and last, the objective of emergency action must be the limitations, and political responsibility. McIlwain clearly recognized the need
defense of the constitutional order.�[97] to repose adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
Clinton L. Rossiter, after surveying the history of the employment of constitutionalism was the existence of adequate processes for keeping
emergency powers in Great Britain, France, Weimar, Germany and the government responsible. He refused to equate constitutionalism with the
United States, reverted to a description of a scheme of �constitutional enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that
dictatorship� as solution to the vexing problems presented by
the really effective checks on despotism have consisted not in the weakening
emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions
of government but, but rather in the limiting of it; between which there is a
of success of the �constitutional dictatorship,� thus:
great and very significant difference. In associating constitutionalism with
1) No general regime or particular institution of constitutional dictatorship
�limited� as distinguished from �weak� government, McIlwain meant
should be initiated unless it is necessary or even indispensable to the
government limited to the orderly procedure of law as opposed to the
preservation of the State and its constitutional order�
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal
2) �the decision to institute a constitutional dictatorship should never be in
limits to arbitrary power and a complete political responsibility of
the hands of the man or men who will constitute the dictator�
government to the governed.[101]
3) No government should initiate a constitutional dictatorship without
In the final analysis, the various approaches to emergency of the above
making specific provisions for its termination�
political theorists �- from Lock�s �theory of prerogative,� to Watkins�
doctrine of �constitutional dictatorship� and, eventually, to McIlwain�s
�principle of constitutionalism� --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of Second, facial invalidation of laws is considered as �manifestly strong
discretionary power to the Chief Executive, while insuring that such powers medicine,� to be used �sparingly and only as a last resort,� and is
will be exercised with a sense of political responsibility and under effective �generally disfavored;�[107] The reason for this is obvious. Embedded in
limitations and checks. the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a
Our Constitution has fairly coped with this problem. Fresh from the fetters law on the ground that it may conceivably be applied unconstitutionally to
of a repressive regime, the 1986 Constitutional Commission, in drafting the others, i.e., in other situations not before the Court.[108] A writer and scholar
1987 Constitution, endeavored to create a government in the concept of in Constitutional Law explains further:
Justice Jackson�s �balanced power structure.�[102] Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the The most distinctive feature of the overbreadth technique is that it marks
Supreme Court, respectively. Each is supreme within its own sphere. But an exception to some of the usual rules of constitutional
none has the monopoly of power in times of emergency. Each branch is litigation. Ordinarily, a particular litigant claims that a statute is
given a role to serve as limitation or check upon the unconstitutional as applied to him or her; if the litigant prevails, the courts
other. This system does not weaken the carve away the unconstitutional aspects of the law by invalidating its
President, it just limits his power, using the language of McIlwain. In improper applications on a case to case basis. Moreover, challengers to a
other words, in times of emergency, our Constitution reasonably demands law are not permitted to raise the rights of third parties and can only assert
that we repose a certain amount of faith in the basic integrity and wisdom of their own interests. In overbreadth analysis, those rules give way;
the Chief Executive but, at the same time, it obliges him to operate within challenges are permitted to raise the rights of third parties; and the court
carefully prescribed procedural limitations. invalidates the entire statute �on its face,� not merely �as applied for�
so that the overbroad law becomes unenforceable until a properly
a. �Facial Challenge� authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the
�chilling;� deterrent effect of the overbroad statute on third parties not
Petitioners contend that PP 1017 is void on its face because of its courageous enough to bring suit. The Court assumes that an overbroad
�overbreadth.� They claim that its enforcement encroached on both law�s �very existence may cause others not before the court to refrain
unprotected and protected rights under Section 4, Article III of the from constitutionally protected speech or expression.� An overbreadth
Constitution and sent a �chilling effect� to the citizens. ruling is designed to remove that deterrent effect on the speech of those
third parties.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

In other words, a facial challenge using the overbreadth doctrine will require
First and foremost, the overbreadth doctrine is an analytical tool developed the Court to examine PP 1017 and pinpoint its flaws and defects, not on the
for testing �on their faces� statutes in free speech cases, also known basis of its actual operation to petitioners, but on the assumption or
under the American Law as First Amendment cases.[103] prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
suppress all forms of lawless violence. In United States v. Salerno,[104] the US requiring correction of these deficiencies before the statute is put into effect,
Supreme Court held that �we have not recognized an �overbreadth� is rarely if ever an appropriate task for the judiciary. The combination of
doctrine outside the limited context of the First Amendment� (freedom of the relative remoteness of the controversy, the impact on the legislative
speech). process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
Moreover, the overbreadth doctrine is not intended for testing the validity of constitutional questions, whichever way they might be decided.
a law that �reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct.� Undoubtedly, And third, a facial challenge on the ground of overbreadth is the most
lawless violence, insurrection and rebellion are considered �harmful� and difficult challenge to mount successfully, since the challenger must establish
�constitutionally unprotected conduct.� In Broadrick v. Oklahoma,[105] it that there can be no instance when the assailed law may be valid. Here,
was held: petitioners did not even attempt to show whether this situation exists.

It remains a �matter of no little difficulty� to determine when a law may Petitioners likewise seek a facial review of PP 1017 on the ground of
properly be held void on its face and when �such summary action� is vagueness. This, too, is unwarranted.
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of Related to the �overbreadth� doctrine is the �void for vagueness
practice and that its function, a limited one at the outset, attenuates as the doctrine� which holds that �a law is facially invalid if men of common
otherwise unprotected behavior that it forbids the State to sanction moves intelligence must necessarily guess at its meaning and differ as to its
from �pure speech� toward conduct and that conduct �even if application.�[110] It is subject to the same principles governing overbreadth
expressive � falls within the scope of otherwise valid criminal laws that doctrine. For one, it is also an analytical tool for testing �on their
reflect legitimate state interests in maintaining comprehensive controls faces� statutes in free speech cases. And like overbreadth, it is said that a
over harmful, constitutionally unprotected conduct. litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017
is vague in all its application. They also failed to establish that men of
Thus, claims of facial overbreadth are entertained in cases involving common intelligence cannot understand the meaning and application of PP
statutes which, by their terms, seek to regulate only �spoken words� and 1017.
again, that �overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied
to protected conduct.�[106] Here, the incontrovertible fact remains that PP b. Constitutional Basis of PP 1017
1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important The suspension of the privilege of the writ shall apply
provisions, thus: only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
First provision:
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially charged within three
�by virtue of the power vested upon me by Section 18, Artilce VII � do days, otherwise he shall be released.
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion� grants the President, as Commander-in-Chief, a �sequence� of graduated
powers. From the most to the least benign, these are: the calling-out power,
Second provision: the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the exercise of the
calling-out power is that �whenever it becomes necessary,� the President
may call the armed forces �to prevent or suppress lawless violence,
�and to enforce obedience to all the laws and to all decrees, orders and invasion or rebellion.� Are these conditions present in the instant
regulations promulgated by me personally or upon my direction;� cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Office�s vast intelligence network, she is in the best position to determine
the actual condition of the country.

Third provision: Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes
beyond the President�s calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his
�as provided in Section 17, Article XII of the Constitution do hereby declare powers. He cannot invoke a greater power when he wishes to act under a
a State of National Emergency.� lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the

First Provision: Calling-out Power President�s authority to declare a �state of rebellion� (in Sanlakas) and
the authority to proclaim a state of national emergency. While President
Arroyo�s authority to declare a �state of rebellion� emanates from her
The first provision pertains to the President�s calling-out power. In powers as Chief Executive, the statutory authority cited in Sanlakas was
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
Tinga, held that Section 18, Article VII of the Constitution reproduced as which provides:
SEC. 4. � Proclamations. � Acts of the President fixing a date or
Sec. 18. The President shall be the Commander-in-Chief of all armed declaring a status or condition of public moment or interest, upon the
forces of the Philippines and whenever it becomes necessary, he may call existence of which the operation of a specific law or regulation is made to
out such armed forces to prevent or suppress lawless violence, invasion or depend, shall be promulgated in proclamations which shall have the force of
rebellion. In case of invasion or rebellion, when the public safety requires it, an executive order.
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpusor place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or President Arroyo�s declaration of a �state of rebellion� was merely
the suspension of the privilege of the writ of habeas corpus, the President an act declaring a status or condition of public moment or interest, a
shall submit a report in person or in writing to the Congress. The Congress, declaration allowed under Section 4 cited above. Such declaration, in the
voting jointly, by a vote of at least a majority of all its Members in regular or words of Sanlakas, is harmless, without legal significance, and deemed not
special session, may revoke such proclamation or suspension, which written. In these cases, PP 1017 is more than that. In declaring a state of
revocation shall not be set aside by the President. Upon the initiative of the national emergency, President Arroyo did not only rely on Section 18, Article
President, the Congress may, in the same manner, extend such proclamation VII of the Constitution, a provision calling on the AFP to prevent or suppress
or suspension for a period to be determined by the Congress, if the invasion lawless violence, invasion or rebellion. She also relied on Section 17, Article
or rebellion shall persist and public safety requires it. XII, a provision on the State�s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP
The Congress, if not in session, shall within twenty-four 1017 calls for the exercise of an awesome power. Obviously, such
hours following such proclamation or suspension, convene in accordance Proclamation cannot be deemed harmless, without legal significance, or not
with its rules without need of a call. written, as in the case of Sanlakas.

The Supreme Court may review, in an appropriate proceeding filed by Some of the petitioners vehemently maintain that PP 1017 is actually a
any citizen, the sufficiency of the factual bases of the proclamation of martial declaration of Martial Law. It is no so. What defines the character of PP
law or the suspension of the privilege of the writ or the extension thereof, 1017 are its wordings. It is plain therein that what the President invoked was
and must promulgate its decision thereon within thirty days from its filing. her calling-out power.

A state of martial law does not suspend the operation of the The declaration of Martial Law is a �warn[ing] to citizens that the
Constitution, nor supplant the functioning of the civil courts or legislative military power has been called upon by the executive to assist in the
assemblies, nor authorize the conferment of jurisdiction on military courts maintenance of law and order, and that, while the emergency lasts, they
and agencies over civilians where civil courts are able to function, nor must, upon pain of arrest and punishment, not commit any acts which will in
automatically suspend the privilege of the writ. any way render more difficult the restoration of order and the enforcement
of law.�[113]
In his �Statement before the Senate Committee on Justice� on March 13, \
2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief, the Petitioners� contention is understandable. A reading of PP 1017 operative
power to declare Martial Law poses the most severe threat to civil clause shows that it was lifted[120] from Former President Marcos�
liberties. It is a strong medicine which should not be resorted to lightly. It Proclamation No. 1081, which partly reads:
cannot be used to stifle or persecute critics of the government. It is placed in
the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines
freedoms. In fact, Section 18, Art. VII, provides: by virtue of the powers vested upon me by Article VII, Section 10, Paragraph
(2) of the Constitution, do hereby place the entire Philippines as defined in
A state of martial law does not suspend the operation of the Constitution, Article 1, Section 1 of the Constitution under martial law and, in my capacity
nor supplant the functioning of the civil courts or legislative assemblies, nor as their Commander-in-Chief, do hereby command the Armed Forces of the
authorize the conferment of jurisdiction on military courts and agencies over Philippines, to maintain law and order throughout the Philippines, prevent
civilians where civil courts are able to function, nor automatically suspend or suppress all forms of lawless violence as well as any act of insurrection
the privilege of the writ. or rebellion and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial

Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify We all know that it was PP 1081 which granted President Marcos legislative
acts that only under a valid declaration of Martial Law can be done. Its use power. Its enabling clause states: �to enforce obedience to all the laws
for any other purpose is a perversion of its nature and scope, and any act and decrees, orders and regulations promulgated by me personally or upon
done contrary to its command is ultra vires. my direction.� Upon the other hand, the enabling clause of PP 1017 issued
by President Arroyo is: to enforce obedience to all the laws and to
Justice Mendoza further stated that specifically, (a) arrests and seizures all decrees, orders and regulations promulgated by me personally or upon
without judicial warrants; (b) ban on public assemblies; (c) take-over of news my direction.�
media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as Commander- Is it within the domain of President Arroyo to promulgate �decrees�?
in-Chief only where there is a valid declaration of Martial Law or suspension
of the writ of habeas corpus. PP 1017 states in
part: �to enforce obedience to all the laws and decrees x x
Based on the above disquisition, it is clear that PP 1017 is not a declaration of x promulgated by me personally or upon my direction.�
Martial Law. It is merely an exercise of President Arroyo�s calling-out
power for the armed forces to assist her in preventing or suppressing lawless The President is granted an Ordinance Power under Chapter 2, Book III of
violence. Executive Order No. 292 (Administrative Code of 1987). She may issue any of
the following:

Sec. 2. Executive Orders. � Acts of the President providing for rules of a

general or permanent character in implementation or execution of
Second Provision: �Take Care� Power constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. � Acts of the President which relate to
The second provision pertains to the power of the President to ensure that particular aspect of governmental operations in pursuance of his duties as
the laws be faithfully executed. This is based on Section 17, Article VII which administrative head shall be promulgated in administrative orders.
reads: Sec. 4. Proclamations. � Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
SEC. 17. The President shall have control of all the executive departments, promulgated in proclamations which shall have the force of an executive
bureaus, and offices. He shall ensure that the laws be faithfully executed. order.
Sec. 5. Memorandum Orders. � Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
As the Executive in whom the executive power is vested,[115] the primary Sec. 6. Memorandum Circulars. � Acts of the President on matters relating
function of the President is to enforce the laws as well as to formulate to internal administration, which the President desires to bring to the
policies to be embodied in existing laws. He sees to it that all laws are attention of all or some of the departments, agencies, bureaus or offices of
enforced by the officials and employees of his department. Before assuming the Government, for information or compliance, shall be embodied in
office, he is required to take an oath or affirmation to the effect that as memorandum circulars.
President of the Philippines, he will, among others, �execute its Sec. 7. General or Special Orders. � Acts and commands of the President in
laws.�[116] In the exercise of such function, the President, if needed, may his capacity as Commander-in-Chief of the Armed Forces of the Philippines
employ the powers attached to his office as the Commander-in-Chief of all shall be issued as general or special orders.
the armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]
President Arroyo�s ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by Former President Marcos
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur under PP 1081. Presidential Decrees are laws which are of the same
Ocampo, Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador category and binding force as statutes because they were issued by the
argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo President in the exercise of his legislative power during the period of Martial
the power to enact laws and decrees in violation of Section 1, Article VI of Law under the 1973 Constitution.[121]
the Constitution, which vests the power to enact laws in Congress. They
assail the clause �to enforce obedience to all the laws and to all decrees, This Court rules that the assailed PP 1017 is unconstitutional insofar as it
orders and regulations promulgated by me personally or upon my grants President Arroyo the authority to promulgate
direction.� �decrees.� Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that �[t]he legislative
power shall be vested in the Congress of the Philippines which shall consist legitimate constitutional objection can be raised. But to the second,
of a Senate and a House of Representatives.� To be sure, neither Martial manifold constitutional issues arise.
Law nor a state of rebellion nor a state of emergency can justify President
Arroyo�s exercise of legislative power by issuing decrees. Section 23, Article VI of the Constitution reads:

Can President Arroyo enforce obedience to all decrees and laws through SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
the military? session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
As this Court stated earlier, President Arroyo has no authority to enact authorize the President, for a limited period and subject to such restrictions
decrees. It follows that these decrees are void and, therefore, cannot be as it may prescribe, to exercise powers necessary and proper to carry out a
enforced. With respect to �laws,� she cannot call the military to enforce declared national policy. Unless sooner withdrawn by resolution of the
or implement certain laws, such as customs laws, laws governing family and Congress, such powers shall cease upon the next adjournment thereof.
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its It may be pointed out that the second paragraph of the above provision
duty to suppress lawless violence. refers not only to war but also to �other national emergency.� If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a �state of national emergency�
pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the
Third Provision: Power to Take Over Framers could have provided so. Clearly, they did not intend that Congress
should first authorize the President before he can declare a �state of
national emergency.� The logical conclusion then is that President Arroyo
The pertinent provision of PP 1017 states: could validly declare the existence of a state of national emergency even in
the absence of a Congressional enactment.
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as But the exercise of emergency powers, such as the taking over of privately
provided in Section 17, Article XII of the Constitution do hereby declare a owned public utility or business affected with public interest, is a
state of national emergency. different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be
The import of this provision is that President Arroyo, during the state of construed together. Otherwise stated, different clauses, sections, and
national emergency under PP 1017, can call the military not only to enforce provisions of a constitution which relate to the same subject matter will be
obedience �to all the laws and to all decrees x x x� but also to act pursuant construed together and considered in the light of each other.[123] Considering
to the provision of Section 17, Article XII which reads: that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the
Sec. 17. In times of national emergency, when the public interest so limitation of the exercise of emergency powers.
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any Generally, Congress is the repository of emergency powers. This is evident
privately-owned public utility or business affected with public interest. in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
What could be the reason of President Arroyo in invoking the above provision the Framers of our Constitution deemed it wise to allow Congress to grant
when she issued PP 1017? emergency powers to the President, subject to certain conditions, thus:

The answer is simple. During the existence of the state of national

emergency, PP 1017 purports to grant the President, without any authority (1) There must be a war or other emergency.
or delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest. (2) The delegation must be for a limited period only.

This provision was first introduced in the 1973 Constitution, as a product of (3) The delegation must be subject to such restrictions as the Congress may
the �martial law� thinking of the 1971 Constitutional Convention.[122] In prescribe.
effect at the time of its approval was President Marcos� Letter of (4) The emergency powers must be exercised to carry out a national
Instruction No. 2 dated September 22, 1972 instructing the Secretary of policy declared by Congress.[124]
National Defense to take over �the management, control and operation of
the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Section 17, Article XII must be understood as an aspect of the
Airways . . . for the successful prosecution by the Government of its effort to emergency powers clause. The taking over of private business affected with
contain, solve and end the present national emergency.� public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the �the State
Petitioners, particularly the members of the House of Representatives, may, during the emergency and under reasonable terms prescribed by it,
claim that President Arroyo�s inclusion of Section 17, Article XII in PP 1017 temporarily take over or direct the operation of any privately owned public
is an encroachment on the legislature�s emergency powers. utility or business affected with public interest,� it refers to Congress, not
the President. Now, whether or not the President may exercise such power
This is an area that needs delineation. is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et
A distinction must be drawn between the President�s authority al. v. Sawyer,[125] held:
to declare �a state of national emergency�
and to exercise emergency powers. To the first, as elucidated by the It is clear that if the President had authority to issue the order he did, it must
Court, Section 18, Article VII grants the President such power, hence, no be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate MR. TINGSON. May I ask the committee if �national emergency� refers
of his powers under the Constitution. Particular reliance is placed on to military national emergency or could this be economic emergency?�
provisions in Article II which say that �The executive Power shall be vested MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
in a President . . . .;� that �he shall take Care that the Laws be faithfully MR. TINGSON. Thank you very much.[133]
executed;� and that he �shall be Commander-in-Chief of the Army and
Navy of the United States. It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the President
The order cannot properly be sustained as an exercise of the President�s the power to take over privately-owned public utility or business affected
military power as Commander-in-Chief of the Armed Forces. The with public interest.
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater of In Araneta v. Dinglasan,[134] this Court emphasized that legislative
war. Such cases need not concern us here. Even though �theater of war� power, through which extraordinary measures are exercised, remains in
be an expanding concept, we cannot with faithfulness to our constitutional Congress even in times of crisis.
system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to �x x x
keep labor disputes from stopping production. This is a job for the
nation�s lawmakers, not for its military authorities. After all the criticisms that have been made against the efficiency of
the system of the separation of powers, the fact remains that the
Nor can the seizure order be sustained because of the several Constitution has set up this form of government, with all its defects and
constitutional provisions that grant executive power to the President. In shortcomings, in preference to the commingling of powers in one man or
the framework of our Constitution, the President�s power to see that the group of men. The Filipino people by adopting parliamentary government
laws are faithfully executed refutes the idea that he is to be a have given notice that they share the faith of other democracy-loving
lawmaker. The Constitution limits his functions in the lawmaking process peoples in this system, with all its faults, as the ideal. The point is, under this
to the recommending of laws he thinks wise and the vetoing of laws he framework of government, legislation is preserved for Congress all the time,
thinks bad. And the Constitution is neither silent nor equivocal about who not excepting periods of crisis no matter how serious. Never in the history of
shall make laws which the President is to execute. The first section of the the United States, the basic features of whose Constitution have been copied
first article says that �All legislative Powers herein granted shall be vested in ours, have specific functions of the legislative branch of enacting laws
in a Congress of the United States. . .�[126] been surrendered to another department � unless we regard as legislating
the carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that
Petitioner Cacho-Olivares, et al. contends that the term �emergency� under our concept of constitutional government, in times of extreme perils
under Section 17, Article XII refers to �tsunami,� more than in normal circumstances �the various branches, executive,
�typhoon,� �hurricane� and �similar occurrences.� This is a limited legislative, and judicial,� given the ability to act, are called upon �to
view of �emergency.� perform the duties and discharge the responsibilities committed to them

Emergency, as a generic term, connotes the existence of conditions suddenly Following our interpretation of Section 17, Article XII, invoked by President
intensifying the degree of existing danger to life or well-being beyond that Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
which is accepted as normal. Implicit in this definitions are the elements of authorize her during the emergency to temporarily take over or direct the
intensity, variety, and perception.[127] Emergencies, as perceived by operation of any privately owned public utility or business affected with
legislature or executive in the United Sates since 1933, have been occasioned public interest without authority from Congress.
by a wide range of situations, classifiable under three (3) principal
heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130] Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public
interest. The President cannot decide whether exceptional circumstances
exist warranting the take over of privately-owned public utility or
business affected with public interest. Nor can he determine when such
�Emergency,� as contemplated in our Constitution, is of the same exceptional circumstances have ceased. Likewise, without legislation, the
breadth. It may include rebellion, economic crisis, pestilence or epidemic, President has no power to point out the types of businesses affected with
typhoon, flood, or other similar catastrophe of nationwide proportions or public interest that should be taken over. In short, the President has no
effect.[131] This is evident in the Records of the Constitutional Commission, absolute authority to exercise all the powers of the State under Section 17,
thus: Article VII in the absence of an emergency powers act passed by Congress.

MR. GASCON. Yes. What is the Committee�s definition of �national

emergency� which appears in Section 13, page 5? It reads: c. �AS APPLIED CHALLENGE�

When the common good so requires, the State may temporarily take over or One of the misfortunes of an emergency, particularly, that which pertains to
direct the operation of any privately owned public utility or business affected security, is that military necessity and the guaranteed rights of the individual
with public interest. are often not compatible. Our history reveals that in the crucible of conflict,
MR. VILLEGAS. What I mean is threat from external aggression, for many rights are curtailed and trampled upon. Here, the right against
example, calamities or natural disasters. unreasonable search and seizure; the right against warrantless
MR. GASCON. There is a question by Commissioner de los Reyes. What arrest; and the freedom of speech, of expression, of the press, and of
about strikes and riots? assembly under the Bill of Rights suffered the greatest blow.
MR. VILLEGAS. Strikes, no; those would not be covered by the term
�national emergency.� Of the seven (7) petitions, three (3) indicate �direct injury.�
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.[132] In G.R. No. 171396, petitioners David and Llamas alleged that, on February
x x x x x x 24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers
cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., community as well. The following observations are quite apropos:
Inc. claimed that on February 25, 2006, the CIDG operatives �raided and
ransacked without warrant� their office. Three policemen were assigned to In the actual unipolar context of international relations, the �fight against
guard their office as a possible �source of destabilization.� Again, the terrorism� has become one of the basic slogans when it comes to the
basis was PP 1017. justification of the use of force against certain states and against groups
operating internationally. Lists of states �sponsoring terrorism� and of
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that terrorist organizations are set up and constantly being updated according to
their members were �turned away and dispersed� when they went to criteria that are not always known to the public, but are clearly determined
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People by strategic interests.
Power I.
The basic problem underlying all these military actions � or threats of the
A perusal of the �direct injuries� allegedly suffered by the said use of force as the most recent by the United States against Iraq � consists
petitioners shows that they resulted from the implementation, pursuant to in the absence of an agreed definition of terrorism.
G.O. No. 5, of PP 1017.
Remarkable confusion persists in regard to the legal categorization of acts of
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the violence either by states, by armed groups such as liberation movements, or
basis of these illegal acts? In general, does the illegal implementation of a by individuals.
law render it unconstitutional?
The dilemma can by summarized in the saying �One country�s terrorist is
Settled is the rule that courts are not at liberty to declare statutes another country�s freedom fighter.� The apparent contradiction or lack of
invalid although they may be abused and misabused[135] and may afford an consistency in the use of the term �terrorism� may further be
opportunity for abuse in the manner of application.[136] The validity of a demonstrated by the historical fact that leaders of national liberation
statute or ordinance is to be determined from its general purpose and its movements such as Nelson Mandela in South Africa, Habib Bourgouiba in
efficiency to accomplish the end desired, not from its effects in a particular Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally
case.[137] PP 1017 is merely an invocation of the President�s calling-out labeled as terrorists by those who controlled the territory at the time, but
power. Its general purpose is to command the AFP to suppress all forms of later became internationally respected statesmen.
lawless violence, invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there is nothing in What, then, is the defining criterion for terrorist acts � the differentia
PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, specifica distinguishing those acts from eventually legitimate acts of national
search or violate the citizens� constitutional rights. resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to
Now, may this Court adjudge a law or ordinance unconstitutional on the bridge the gap between those who associate �terrorism� with any violent
ground that its implementor committed illegal acts? The answer is no. The act by non-state groups against civilians, state functionaries or infrastructure
criterion by which the validity of the statute or ordinance is to be measured or military installations, and those who believe in the concept of the
is the essential basis for the exercise of power, and not a mere incidental legitimate use of force when resistance against foreign occupation or against
result arising from its exertion.[138] This is logical. Just imagine the absurdity systematic oppression of ethnic and/or religious groups within a state is
of situations when laws maybe declared unconstitutional just because the concerned.
officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the The dilemma facing the international community can best be illustrated by
Court, majority of the provisions of the Revised Penal Code would have been reference to the contradicting categorization of organizations and
declared unconstitutional a long time ago. movements such as Palestine Liberation Organization (PLO) � which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims
� the Kashmiri resistance groups � who are terrorists in the perception of
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP India, liberation fighters in that of Pakistan � the earlier Contras in
1017. General orders are �acts and commands of the President in his Nicaragua � freedom fighters for the United States, terrorists for the
capacity as Commander-in-Chief of the Armed Forces of the Philippines.� Socialist camp � or, most drastically, the Afghani Mujahedeen (later to
They are internal rules issued by the executive officer to his subordinates become the Taliban movement): during the Cold War period they were a
precisely for the proper and efficient administration of law. Such rules and group of freedom fighters for the West, nurtured by the United States, and a
regulations create no relation except between the official who issues them terrorist gang for the Soviet Union. One could go on and on in enumerating
and the official who receives them.[139] They are based on and are the examples of conflicting categorizations that cannot be reconciled in any way
product of, a relationship in which power is their source, and obedience, � because of opposing political interests that are at the roots of those
their object.[140] For these reasons, one requirement for these rules to be perceptions.
valid is that they must be reasonable, not arbitrary or capricious.
How, then, can those contradicting definitions and conflicting perceptions
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the and evaluations of one and the same group and its actions be explained? In
�necessary and appropriate actions and measures to suppress and our analysis, the basic reason for these striking inconsistencies lies in the
prevent acts of terrorism and lawless violence.� divergent interest of states. Depending on whether a state is in the position
of an occupying power or in that of a rival, or adversary, of an occupying
Unlike the term �lawless violence� which is unarguably extant in our power in a given territory, the definition of terrorism will �fluctuate�
statutes and the Constitution, and which is invariably associated with accordingly. A state may eventually see itself as protector of the rights of a
�invasion, insurrection or rebellion,� the phrase �acts of terrorism� is certain ethnic group outside its territory and will therefore speak of a
still an amorphous and vague concept. Congress has yet to enact a law �liberation struggle,� not of �terrorism� when acts of violence by this
defining and punishing acts of terrorism. group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
In fact, this �definitional predicament� or the �absence of an agreed sovereign states that determine in each and every instance how a particular
definition of terrorism� confronts not only our country, but the armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A �policy of double standards� on this vital by a validly issued search warrant or warrant of arrest. Thus, the
issue of international affairs has been the unavoidable consequence. fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with
This �definitional predicament� of an organization consisting of sovereign power to issue or refuse to issue search warrants or warrants of arrest.[143]
states � and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! � has become even more serious in the present
global power constellation: one superpower exercises the decisive role in the In the Brief Account[144] submitted by petitioner David, certain facts are
Security Council, former great powers of the Cold War era as well as medium established: first, he was arrested without warrant; second, the PNP
powers are increasingly being marginalized; and the problem has become operatives arrested him on the basis of PP 1017; third, he was brought at
even more acute since the terrorist attacks of 11 September 2001 I the Camp Karingal, Quezon City where he was fingerprinted, photographed and
United States.[141] booked like a criminal suspect; fourth, he was treated brusquely by
policemen who �held his head and tried to push him� inside an unmarked
The absence of a law defining �acts of terrorism� may result in abuse and car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
oppression on the part of the police or military. An illustration is when a 880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours;
group of persons are merely engaged in a drinking spree. Yet the military or and seventh, he was eventually released for insufficiency of evidence.
the police may consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

So far, the word �terrorism� appears only once in our criminal laws, i.e., in Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during person may, without a warrant, arrest a person:
the Martial Law regime. This decree is entitled �Codifying The Various Laws
on Anti-Subversion and Increasing The Penalties for Membership in (a) When, in his presence, the person to be arrested has committed, is
Subversive Organizations.� The word �terrorism� is mentioned in the actually committing, or is attempting to commit an offense.
following provision: �That one who conspires with any other person for the
purpose of overthrowing the Government of the Philippines x x x by force, (b) When an offense has just been committed and he has probable cause to
violence, terrorism, x x x shall be punished by reclusion temporal x x x.� believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

x x x.
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define �acts of
terrorism.� Since there is no law defining �acts of terrorism,� it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
Neither of the two (2) exceptions mentioned above justifies petitioner
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate David�s warrantless arrest. During the inquest for the charges of inciting
arrest without warrants, breaking into offices and residences, taking over the to sedition and violation of BP
media enterprises, prohibition and dispersal of all assemblies and gatherings 880, all that the arresting officers could invoke was their
unfriendly to the administration. All these can be effected in the name of observation that some rallyists were wearing t-shirts with the
G.O. No. 5. These acts go far beyond the calling-out power of the invective �Oust Gloria Now� and their erroneous assumption that
President. Certainly, they violate the due process clause of the petitioner David was the leader of the rally.[146] Consequently, the Inquest
Constitution. Thus, this Court declares that the �acts of terrorism� portion Prosecutor ordered his immediate release on the ground of insufficiency of
of G.O. No. 5 is unconstitutional. evidence. He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient evidence
for the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.[147]
Significantly, there is nothing in G.O. No. 5 authorizing the military or police
to commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.

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

Section 4 of Article III guarantees:

The Constitution provides that �the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search and
No law shall be passed abridging the freedom of speech, of expression, or of
seizure of whatever nature and for any purpose shall be inviolable, and no
the press, or the right of the people peaceably to assemble and petition the
search warrant or warrant of arrest shall issue except upon probable cause
government for redress of grievances.
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
�Assembly� means a right on the part of the citizens to meet peaceably for
be seized.�[142] The plain import of the language of the Constitution is that
consultation in respect to public affairs. It is a necessary consequence of our
searches, seizures and arrests are normally unreasonable unless authorized
republican institution and complements the right of speech. As in the case of warrant; second, the police operatives seized several materials for
freedom of expression, this right is not to be limited, much less denied, publication; third, the search was conducted at about 1:00 o� clock in the
except on a showing of a clear and present danger of a substantive evil that morning of February 25, 2006; fourth, the search was conducted in the
Congress has a right to prevent. In other words, like other rights embraced in absence of any official of the Daily Tribune except the security guard of the
the freedom of expression, the right to assemble is not subject to previous building; and fifth, policemen stationed themselves at the vicinity of the Daily
restraint or censorship. It may not be conditioned upon the prior issuance Tribune offices.
of a permit or authorization from the government authorities except, of
course, if the assembly is intended to be held in a public place, a permit for Thereafter, a wave of warning came from government officials.
the use of such place, and not for the assembly itself, may be validly Presidential Chief of Staff Michael Defensor was quoted as saying that such
required. raid was �meant to show a �strong presence,� to tell media outlets not
to connive or do anything that would help the rebels in bringing down this
government.� Director General Lomibao further stated that �if they do
not follow the standards �and the standards are if they would contribute
The ringing truth here is that petitioner David, et al. were arrested while they to instability in the government, or if they do not subscribe to what is in
were exercising their right to peaceful assembly. They were not committing General Order No. 5 and Proc. No. 1017 � we will recommend
any crime, neither was there a showing of a clear and present danger that a �takeover.�� National Telecommunications Commissioner Ronald Solis
warranted the limitation of that right. As can be gleaned from urged television and radio networks to �cooperate� with the government
circumstances, the charges of inciting to sedition and violation of BP for the duration of the state of national emergency. He warned that his
880were mere afterthought. Even the Solicitor General, during the oral agency will not hesitate to recommend the closure of any broadcast outfit
argument, failed to justify the arresting officers� conduct. In De Jonge v. that violates rules set out for media coverage during times when the
Oregon,[148] it was held that peaceable assembly cannot be made a crime, national security is threatened.[151]

Peaceable assembly for lawful discussion cannot be made a crime. The The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
holding of meetings for peaceable political action cannot be proscribed. lays down the steps in the conduct of search and seizure. Section 4 requires
Those who assist in the conduct of such meetings cannot be branded as that a search warrant be issued upon probable cause in connection with one
criminals on that score. The question, if the rights of free speech and specific offence to be determined personally by the judge after examination
peaceful assembly are not to be preserved, is not as to the auspices under under oath or affirmation of the complainant and the witnesses he may
which the meeting was held but as to its purpose; not as to the relations of produce. Section 8 mandates that the search of a house, room, or any other
the speakers, but whether their utterances transcend the bounds of the premise be made in the presence of the lawful occupant thereof or any
freedom of speech which the Constitution protects. If the persons member of his family or in the absence of the latter, in the presence of two
assembling have committed crimes elsewhere, if they have formed or are (2) witnesses of sufficient age and discretion residing in the same
engaged in a conspiracy against the public peace and order, they may be locality. And Section 9 states that the warrant must direct that it be served
prosecuted for their conspiracy or other violations of valid laws. But it is a in the daytime, unless the property is on the person or in the place ordered
different matter when the State, instead of prosecuting them for such to be searched, in which case a direction may be inserted that it be served at
offenses, seizes upon mere participation in a peaceable assembly and a any time of the day or night. All these rules were violated by the CIDG
lawful public discussion as the basis for a criminal charge. operatives.

Not only that, the search violated petitioners� freedom of the press. The
On the basis of the above principles, the Court likewise considers the best gauge of a free and democratic society rests in the degree of freedom
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) enjoyed by its media. In theBurgos v. Chief of Staff[152] this Court held that --
unwarranted. Apparently, their dispersal was done merely on the basis of As heretofore stated, the premises searched were the business and printing
Malaca�ang�s directive canceling all permits previously issued by local offices of the "Metropolitan Mail" and the "We Forum� newspapers. As a
government units. This is arbitrary. The wholesale cancellation of all permits consequence of the search and seizure, these premises were padlocked and
to rally is a blatant disregard of the principle that �freedom of assembly is sealed, with the further result that the printing and publication of said
not to be limited, much less denied, except on a showing of a clear and newspapers were discontinued.
present danger of a substantive evil that the State has a right to
prevent.�[149] Tolerance is the rule and limitation is the exception. Only Such closure is in the nature of previous restraint or censorship abhorrent
upon a showing that an assembly presents a clear and present danger that to the freedom of the press guaranteed under the fundamental law, and
the State may deny the citizens� right to exercise it. Indeed, respondents constitutes a virtual denial of petitioners' freedom to express themselves in
failed to show or convince the Court that the rallyists committed acts print. This state of being is patently anathematic to a democratic
amounting to lawless violence, invasion or rebellion. With the blanket framework where a free, alert and even militant press is essential for the
revocation of permits, the distinction between protected and unprotected political enlightenment and growth of the citizenry.
assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is While admittedly, the Daily Tribune was not padlocked and sealed like the
lodged with the local government units. They have the power to issue �Metropolitan Mail� and �We Forum� newspapers in the above case,
permits and to revoke such permits after due notice and hearing on the yet it cannot be denied that the CIDG operatives exceeded their enforcement
determination of the presence of clear and present danger. Here, petitioners duties. The search and seizure of materials for publication, the stationing of
were not even notified and heard on the revocation of their permits.[150] The policemen in the vicinity of the The Daily Tribune offices, and the arrogant
first time they learned of it was at the time of the dispersal. Such absence of warning of government officials to media, are plain censorship. It is that
notice is a fatal defect. When a person�s right is restricted by government officious functionary of the repressive government who tells the citizen that
action, it behooves a democratic government to see to it that the restriction he may speak only if allowed to do so, and no more and no less than what he
is fair, reasonable, and according to procedure. is permitted to say on pain of punishment should he be so rash as to
disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom involves the most defiant of our citizens. Freedom to comment on public
of speech i.e., the freedom of the press. Petitioners� narration of facts, affairs is essential to the vitality of a representative democracy. It is the duty
which the Solicitor General failed to refute, established the of the courts to be watchful for the constitutional rights of the citizen, and
following: first, the Daily Tribune�s offices were searched without
against any stealthy encroachments thereon. The motto should always
be obsta principiis.[154] Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:


Incidentally, during the oral arguments, the Solicitor General admitted that There seems to be some confusions if not contradiction in your theory.
the search of the Tribune�s offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible SOLICITOR GENERAL BENIPAYO:
�for any purpose,� thus:
I don�t know whether this will clarify. The acts, the supposed illegal
JUSTICE CALLEJO: or unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a misapplication
You made quite a mouthful of admission when you said that the of the law. These are acts of the police officers, that is their
policemen, when inspected the Tribune for the purpose of gathering responsibility.[157]
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings that
were taken from the Tribune?
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional
SOLICITOR GENERAL BENIPAYO: in every aspect and �should result in no constitutional or statutory breaches
if applied according to their letter.�
Under the law they would seem to be, if they were illegally seized, I
think and I know, Your Honor, and these are inadmissible for any The Court has passed upon the constitutionality of these issuances. Its
purpose.[155] ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
xxx xxx xxx military to prevent or suppress lawless violence, invasion or rebellion. When
in implementing its provisions, pursuant to G.O. No. 5, the military and the
SR. ASSO. JUSTICE PUNO: police committed acts which violate the citizens� rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go there at In this connection, Chief Justice Artemio V. Panganiban�s concurring
1 o�clock in the morning and without any search warrant? Did they opinion, attached hereto, is considered an integral part of this ponencia.
become suddenly part of the evidence of rebellion or inciting to sedition or
In sum, the lifting of PP 1017 through the issuance of PP 1021 � a
Well, it was the police that did that, Your Honor. Not upon my supervening event � would have normally rendered this case moot and
instructions. academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
SR. ASSO. JUSTICE PUNO: that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
Are you saying that the act of the policeman is illegal, it is not based reimposed �if the May 1 rallies� become �unruly and
on any law, and it is not based on Proclamation 1017. violent.� Consequently, the transcendental issues raised by the parties
should not be �evaded;� they must now be resolved to prevent future
SOLGEN BENIPAYO: constitutional aberration.

It is not based on Proclamation 1017, Your Honor, because there is The Court finds and so holds that PP 1017 is constitutional insofar as it
nothing in 1017 which says that the police could go and inspect and gather constitutes a call by the President for the AFP to prevent or suppress lawless
clippings from Daily Tribune or any other newspaper. violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
SR. ASSO. JUSTICE PUNO: 1017�s extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all
Is it based on any law? laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any
SOLGEN BENIPAYO: form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the
As far as I know, no, Your Honor, from the facts, no. President, in the absence of a legislation, cannot take over privately-owned
public utility and private business affected with public interest.

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

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President � acting as Commander-in-Chief � addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a
valid standard � that the military and the police should take only the
�necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence.� But the words �acts of terrorism�
Maybe so, Your Honor. Maybe so, that is why I said, I don�t know if
found in G.O. No. 5 have not been legally defined and made punishable by
it is premature to say this, we do not condone this. If the people who have
Congress and should thus be deemed deleted from the said G.O. While
been injured by this would want to sue them, they can sue and there are
�terrorism� has been denounced generally in media, no law has been
remedies for this.[156]
enacted to guide the military, and eventually the courts, to determine the
limits of the AFP�s authority in carrying out this portion of G.O. No. 5.

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

Other than this declaration of invalidity, this Court cannot impose any civil, (On leave)
criminal or administrative sanctions on the individual police officers REYNATO S. PUNO LEONARDO A. QUISUMBING
concerned. They have not been individually identified and given their day in Associate Justice Associate Justice
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities. CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Associate Justice

It is well to remember that military power is a means to an end and MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
substantive civil rights are ends in themselves. How to give the military the Associate Justice Associate Justice
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic
state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.
restrain our people�s liberty. Associate Justice Associate Justice

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

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

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
and the PNP should implement PP 1017, i.e. whatever is �necessary and that the conclusions in the above Decision were reached in consultation
appropriate actions and measures to suppress and prevent acts of lawless before the case was assigned to the writer of the opinion of the Court.
violence.� Considering that �acts of terrorism� have not yet been
defined and made punishable by the Legislature, such portion of G.O. No. 5 is
Chief Justice

[G.R. Nos. 146710-15. March 2, 2001]
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as
and warrantless arrest of the KMU and NAFLU-KMU members during their Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
rallies, in the absence of proof that these petitioners were committing acts CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE
constituting lawless violence, invasion or rebellion and violating BP 880; the VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
imposition of standards on media or any form of prior restraint on the press, JR., respondent.
as well as the warrantless search of the Tribune offices and whimsical seizure [G.R. No. 146738. March 2, 2001]
of its articles for publication and other materials, are JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-
declared UNCONSTITUTIONAL. ARROYO, respondent.
No costs. PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph by now Secretary of Justice Hernando Perez and now Solicitor General
Ejercito Estrada alleges that he is the President on leave while respondent Simeon Marcelo. Serving as defense counsel were former Chief Justice
Gloria Macapagal-Arroyo claims she is the President. The warring Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P.
personalities are important enough but more transcendental are the Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker
constitutional issues embedded on the parties dispute. While the significant of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty.
issues are many, the jugular issue involves the relationship between the ruler Raymund Fortun. The day to day trial was covered by live TV and during its
and the ruled in a democracy, Philippine style. course enjoyed the highest viewing rating. Its high and low points were the
First, we take a view of the panorama of events that precipitated the crisis in constant conversational piece of the chattering classes. The dramatic point of
the office of the President. the December hearings was the testimony of Clarissa Ocampo, senior vice
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected president of Equitable-PCI Bank. She testified that she was one foot away
President while respondent Gloria Macapagal-Arroyo was elected Vice- from petitioner Estrada when he affixed the signature Jose Velarde on
President. Some (10) million Filipinos voted for the petitioner believing he documents involving a P500 million investment agreement with their bank
would rescue them from lifes adversity. Both petitioner and the respondent on February 4, 2000.[15]
were to serve a six-year term commencing on June 30, 1998. After the testimony of Ocampo, the impeachment trial was adjourned in the
From the beginning of his term, however, petitioner was plagued by a spirit of Christmas. When it resumed on January 2, 2001, more bombshells
plethora of problems that slowly but surely eroded his popularity. His sharp were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who
descent from power started on October 4, 2000. Ilocos Sur Governos, Luis served as petitioners Secretary of Finance took the witness stand. He alleged
Chavit Singson, a longtime friend of the petitioner, went on air and accused that the petitioner jointly owned BW Resources Corporation with Mr. Dante
the petitioner, his family and friends of receiving millions of pesos Tan who was facing charges of insider trading.[16] Then came the fateful day
from jueteng lords.[1] of January 16, when by a vote of 11-10[17] the senator-judges ruled against
The expos immediately ignited reactions of rage. The next day, October 5, the opening of the second envelop which allegedly contained evidence
2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took showing that petitioner held P3.3 billion in a secret bank account under the
the floor and delivered a fiery privilege speech entitled I Accuse. He accused name Jose Velarde. The public and private prosecutors walked out in protest
the petitioner of receiving some P220 million in jueteng money from of the ruling. In disgust, Senator Pimentel resigned as Senate
Governor Singson from November 1998 to August 2000. He also charged that President.[18] The ruling made at 10:00 p.m. was met by a spontaneous
the petitioner took from Governor Singson P70 million on excise tax on outburst of anger that hit the streets of the metropolis. By midnight,
cigarettes intended for Ilocos Sur. The privilege speech was referred by then thousands had assembled at the EDSA Shrine and speeches full of sulphur
Senate President Franklin Drilon, to the Blue Ribbon Committee (then were delivered against the petitioner and the eleven (11) senators.
headed by Senator Aquilino Pimentel) and the Committee on Justice (then On January 17, the public prosecutors submitted a letter to Speaker
headed by Senator Renato Cayetano) for joint investigation.[2] Fuentebella tendering their collective resignation. They also filed their
The House of Representatives did no less. The House Committee on Public Manifestation of Withdrawal of Appearance with the impeachment
Order and Security, then headed by Representative Roilo Golez, decided to tribunal.[19] Senator Raul Roco quickly moved for the indefinite
investigate the expos of Governor Singson. On the other hand, postponement of the impeachment proceedings until the House of
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor Representatives shall have resolved the issue of resignation of the public
spearheaded the move to impeach the petitioner. prosecutors. Chief Justice Davide granted the motion.[20]
Calls for the resignation of the petitioner filled the air. On October 11, January 18 saw the high velocity intensification of the call for petitioners
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the resignation. A 10-kilometer line of people holding lighted candles formed a
Presbyteral Council of the Archdiocese of Manila, asking petitioner to step human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
down from the presidency as he had lost the moral authority to City to the EDSA Shrine to symbolize the peoples solidarity in demanding
govern.[3] Two days later or on October 13, the Catholic Bishops Conference petitioners resignation. Students and teachers walked out of their classes in
of the Philippines joined the cry for the resignation of the petitioner. [4]Four Metro Manila to show their concordance.Speakers in the continuing rallies at
days later, or on October 17, former President Corazon C. Aquino also the EDSA Shrine, all masters of the physics of persuasion, attracted more and
demanded that the petitioner take the supreme self-sacrifice of more people.[21]
resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, On January 19, the fall from power of the petitioner appeared inevitable. At
or on October 12, respondent Arroyo resigned as Secretary of the 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that
Department of Social Welfare and Services[6] and later asked for petitioners General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines,
resignation.[7] However, petitioner strenuously held on to his office and had defected. At 2:30 p.m., petitioner agreed to the holding of a snap
refused to resign. election for President where he would not be a candidate. It did not diffuse
The heat was on. On November 1, four (4) senior economic advisers, the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando
members of the Council of Senior Economic Advisers, resigned. They were Mercado and General Reyes, together with the chiefs of all the armed
Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former services went to the EDSA Shrine.[22] In the presence of former Presidents
Senator Vicente Paterno and Washington Sycip.[8] On November 2, Secretary Aquino and Ramos and hundreds of thousands of cheering demonstrators,
Mar Roxas II also resigned from the Department of Trade and Industry.[9] On General Reyes declared that on behalf of your Armed Forces, the 130,000
November 3, Senate President Franklin Drilon, and House Speaker Manuel strong members of the Armed Forces, we wish to announce that we are
Villar, together with some 47 representatives defected from the ruling withdrawing our support to this government.[23]A little later, PNP Chief,
coalition, Lapian ng Masang Pilipino.[10] Director General Panfilo Lacson and the major service commanders gave a
The month of November ended with a big bang. In a tumultuous session on similar stunning announcement.[24] Some Cabinet secretaries,
November 13, House Speaker Villar transmitted the Articles of undersecretaries, assistant secretaries, and bureau chiefs quickly resigned
Impeachment[11] signed by 115 representatives, or more than 1/3 of all the from their posts.[25] Rallies for the resignation of the petitioner exploded in
members of the House of Representatives to the Senate. This caused political various parts of the country. To stem the tide of rage, petitioner announced
convulsions in both houses of Congress. Senator Drilon was replaced by he was ordering his lawyers to agree to the opening of the highly
Senator Pimentel as Senate President. Speaker Villar was unseated by controversial second envelop.[26] There was no turning back the tide. The tide
Representative Fuentabella.[12] On November 20, the Senate formally opened had become a tsunami.
the impeachment trial of the petitioner. Twenty-one (21) senators took their January 20 turned to be the day of surrender. At 12:20 a.m., the first round
oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., of negotiations for the peaceful and orderly transfer of power started at
presiding.[13] Malacaangs Mabini Hall, Office of the Executive Secretary.Secretary Edgardo
The political temperature rose despite the cold December. On December 7, Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser
the impeachment trial started.[14] the battle royale was fought by some of the Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez,
marquee names in the legal profession. Standing as prosecutors were then head of the presidential Management Staff, negotiated for the
House Minority Floor Leader Feliciano Belmonte and Representatives Joker petitioner. Respondent Arroyo was represented by now Executive Secretary
Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and of Justice Hernando Perez.[27] Outside the palace, there was a brief encounter
Antonio Nachura. They were assisted by a battery of private prosecutors led at Mendiola between pro and anti-Estrada protesters which resulted in
stone-throwing and caused minor injuries. The negotiations consumed all On January 26, the respondent signed into law the Solid Waste Management
morning until the news broke out that Chief Justice Davide would administer Act.[40] A few days later, she also signed into law the Political Advertising Ban
the oath to respondent Arroyo at high noon at the EDSA Shrine. and Fair Election Practices Act.[41]
At about 12:00 noon, Chief Justice Davide administered the oath to On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr.,
respondent Arroyo as President of the Philippines.[28] At 2:30 p.m., petitioner as her Vice President.[42] the next day, February 7, the Senate adopted
and his family hurriedly left Malacaang Palace.[29] He issued the following Resolution No. 82 confirming the nomination of Senator Guingona,
press statement:[30] Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmea
20 January 2001 voted yes with reservations, citing as reason therefore the pending challenge
STATEMENT FROM on the legitimacy of respondent Arroyos presidency before the Supreme
PRESIDENT JOSEPH EJERCITO ESTRADA Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took House of Representatives also approved Senator Guingonas nomination in
her oath as President of the Republic of the Philippines. While along with Resolution No. 178.[45] Senator Guingona took his oath as Vice President two
many other legal minds of our country, I have strong and serious doubts (2) days later.[46]
about the legality and constitutionality of her proclamation as President, I do On February 7, the Senate passed Resolution No. 83 declaring that the
not wish to be a factor that will prevent the restoration of unity and order in impeachment court is functus officio and has been terminated.[47] Senator
our civil society. Miriam Defensor-Santiago stated for the record that she voted against the
It is for this reason that I now leave Malacaang Palace, the seat of the closure of the impeachment court on the grounds that the Senate had failed
presidency of this country, for the sake of peace and in order to begin the to decide on the impeachment case and that the resolution left open the
healing process of our nation. I leave the Palace of our people with gratitude question of whether Estrada was still qualified to run for another elective
for the opportunities given to me for service to our people. I will not shirk post.[48]
from any future challenges that may come ahead in the same service of our Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public
country. acceptance rating jacked up from 16% on January 20, 2001 to 38% on
I call on all my supporters and followers to join me in the promotion of a January 26, 2001.[49] In another survey conducted by the ABS-CBN/SWS from
constructive national spirit of reconciliation and solidarity. February 2-7, 2001, results showed that 61% of the Filipinos nationwide
May the Almighty bless our country and beloved people. accepted President Arroyo as replacement of petitioner Estrada. The survey
MABUHAY! also revealed that President Arroyo is accepted by 60% in Metro Manila, by
(Sgd.) JOSEPH EJERCITO ESTRADA also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in
It also appears that on the same day, January 20, 2001, he signed the Mindanao. Her trust rating increased to 52%. Her presidency is accepted by
following letter:[31] majorities in all social classes:
Sir: 58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54%
By virtue of the provisions of Section 11, Article VII of the Constitution, I am among the Es or very poor class.[50]
hereby transmitting this declaration that I am unable to exercise the powers After his fall from the pedestal of power, the petitioners legal problems
and duties of my office. By operation of law and the Constitution, the Vice- appeared in clusters. Several cases previously filed against him in the Office
President shall be the Acting President. of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-
(Sgd.) JOSEPH EJERCITO ESTRADA 1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against
January 20.[32] Another copy was transmitted to Senate President Pimentel Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft
on the same day although it was received only at 9:00 p.m.[33] and corruption, bribery, perjury, serious misconduct, violation of the Code of
On January 22, the Monday after taking her oath, respondent Arroyo Conduct for government Employees, etc; (3) OMB Case No. 0-00-1755 filed
immediately discharged the powers and duties of the Presidency. On the by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for
same day, this Court issued the following Resolution in Administrative Matter plunder, forfeiture, graft and corruption, bribery, perjury, serious
No. 01-1-05-SC, to wit: misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on
A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal- November 28, 2000 for malversation of public funds, illegal use of public
Arroyo to Take her Oath of Office as President of the Republic of the funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by
Philippines before the Chief Justice Acting on the urgent request of Vice- Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect
President Gloria Macapagal-Arroyo to be sworn in as President of the bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Republic of the Philippines, addressed to the Chief Justice and confirmed by a Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
letter to the Court, dated January 20, 2001, which request was treated as an plunder, graft and corruption.
administrative matter, the court Resolved unanimously to confirm the A special panel of investigators was forthwith created by the respondent
authority given by the twelve (12) members of the Court then present to the Ombudsman to investigate the charges against the petitioner. It is chaired by
Chief Justice on January 20, 2001 to administer the oath of office to Vice Overall Deputy Ombudsman Margarito P. Gervasio with the following as
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
January 20, 2001. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued
This resolution is without prejudice to the disposition of any justiciable case an Order directing the petitioner to file his counter-affidavit and the
that maybe filed by a proper party. affidavits of his witnesses as well as other supporting documents in answer
Respondent Arroyo appointed members of her Cabinet as well as to the aforementioned complaints against him.
ambassadors and special envoys.[34] Recognition of respondent Arroyos Thus, the stage for the cases at bar was set. On February 5, petitioner filed
government by foreign governments swiftly followed. On January 23, in a with this Court GR No. 146710-15, a petition for prohibition with a prayer for
reception or vin d honneur at Malacaang, led by the Dean of the Diplomatic a writ of preliminary injunction. It sought to enjoin the respondent
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats Ombudsman from conducting any further proceedings in Case Nos. OMB 0-
recognized the government of respondent Arroyo.[35] US President George W. 00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint
Bush gave the respondent a telephone call from the White House conveying that may be filed in his office, until after the term of petitioner as President is
US recognition of her government.[36] over and only if legally warranted. Thru another counsel, petitioner, on
On January 24, Representative Feliciano Belmonte was elected new Speaker February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment
of the House of Representatives.[37] The House then passed Resolution No. confirming petitioner to be the lawful and incumbent President of the
175 expressing the full support of the House of Representatives to the Republic of the Philippines temporarily unable to discharge the duties of his
administration of Her Excellency Gloria Macapagal-Arroyo, President of the office, and declaring respondent to have taken her oath as and to be holding
Philippines.[38] It also approved Resolution No. 176 expressing the support of the Office of the President, only in an acting capacity pursuant to the
the House of Representatives to the assumption into office by Vice President provisions of the Constitution. Acting on GR Nos. 146710-15, the Court, on
Gloria Macapagal-Arroyo as President of the Republic of the Philippines, the same day, February 6, required the respondents to comment thereon
extending its congratulations and expressing its support for her within a non-extendible period expiring on 12 February 2001. On February
administration as a partner in the attainment of the nations goals under the 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
146738 and the filing of the respondents comments on or before 8:00 a.m. of government; or an unusual need for unquestioning adherence to a political
February 15. decision already made; or the potentiality of embarrassment from
On February 15, the consolidated cases were orally argued in a four-hour multifarious pronouncements by various departments on question. Unless
hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice one of these formulations is inextricable from the case at bar, there should
Artemio Panganiban[52] recused themselves on motion of petitioners counsel, be no dismissal for non justiciability on the ground of a political questions
former Senator Rene A. Saguisag. They debunked the charge of counsel presence. The doctrine of which we treat is one of political questions, not of
Saguisag that they have compromised themselves by indicating that they political cases.
have thrown their weight on one side but nonetheless inhibited In the Philippine setting, this Court has been continuously confronted with
themselves. Thereafter, the parties were given the short period of five (5) cases calling for a firmer delineation of the inner and outer perimeters of a
days to file their memoranda and two (2) days to submit their simultaneous political question.[57] Our leading case is Tanada v. Cuenco,[58]where this
replies. Court, through former Chief Justice Roberto Concepcion, held that political
In a resolution dated February 20, acting on the urgent motion for copies of questions refer to those questions which, under the Constitution, are to
resolution and press statement for Gag Order on respondent Ombudsman be decided by the people in their sovereign capacity, or in regard to
filed by counsel for petitioner in G.R. No. 146738, the Court resolved: which full discretionary authority has been delegated to the legislative or
(1) to inform the parties that the Court did not issue a resolution on January executive branch of the government. It is concerned with issues dependent
20, 2001 declaring the office of the President vacant and that neither did the upon the wisdom, not legality of a particular measure. To a great degree, the
Chief Justice issue a press statement justifying the alleged resolution; 1987 Constitution has narrowed the reach of the political question doctrine
(2) to order the parties and especially their counsel who are officers of the when it expanded the power of judicial review of this court not only to settle
Court under pain of being cited for contempt to refrain from making any actual controversies involving rights which are legally demandable and
comment or discussing in public the merits of the cases at bar while they are enforceable but also to determine whether or not there has been a grave
still pending decision by the Court, and abuse of discretion amounting to lack or excess of jurisdiction on the part of
(3) to issue a 30-day status quo order effective immediately enjoining the any branch or instrumentality of government.[59] Heretofore, the judiciary has
respondent Ombudsman from resolving or deciding the criminal cases focused on the thou shalt nots of the Constitution directed against the
pending investigation in his office against petitioner Joseph E. Estrada and exercise of its jurisdiction.[60] With the new provision, however, courts are
subject of the cases at bar, it appearing from news reports that the given a greater prerogative to determine what it can do to prevent grave
respondent Ombudsman may immediately resolve the cases against abuse of discretion amounting to lack or excess of jurisdiction on the part of
petitioner Joseph E. Estrada seven (7) days after the hearing held on any branch or instrumentality of government. Clearly, the new provision did
February 15, 2001, which action will make the cases at bar moot and not just grant the Court power of doing nothing. In sync and symmetry with
academic.[53] this intent are other provisions of the 1987 Constitution trimming the so
The parties filed their replies on February 24. On this date, the cases at bar called political thicket. Prominent of these provisions is section 18 of Article
were deemed submitted for decision. VII which empowers this Court in limpid language to x x x review, in an
The bedrock issues for resolution of this Court are: appropriate proceeding filed by any citizen, the sufficiency of the factual
I basis of the proclamation of martial law or the suspension of the privilege of
Whether the petitions present a justiciable controversy. the writ (of habeas corpus) or the extension thereof x x x.
II Respondents rely on the case of Lawyers League for a Better Philippines
Assuming that the petitions present a justiciable controversy, whether and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related
petitioner Estrada is a President on leave while respondent Arroyo is an cases[62] to support their thesis that since the cases at bar involve the
Acting President. legitimacy of the government of respondent Arroyo, ergo, they present a
III political question. A more cerebral reading of the cited cases will show that
Whether conviction in the impeachment proceedings is a condition they are inapplicable. In the cited cases, we held that the government of
precedent for the criminal prosecution of petitioner Estrada. In the negative former President Aquino was the result of a successful revolution by the
and on the assumption that petitioner is still President, whether he is sovereign people, albeit a peaceful one. No less than the Freedom
immune from criminal prosecution. Constitution[63] declared that the Aquino government was installed through a
IV direct exercise of the power of the Filipino people in defiance of the
Whether the prosecution of petitioner Estrada should be enjoined on the provisions of the 1973 Constitution, as amended. It is familiar learning that
ground of prejudicial publicity. the legitimacy of a government sired by a successful revolution by people
We shall discuss the issues in seriatim. power is beyond judicial scrutiny for that government automatically orbits
I out of the constitutional loop. In checkered contrast, the government of
Whether or not the cases at bar involve a political question respondent Arroyo is not revolutionary in character. The oath that she took
Private respondents[54] raise the threshold issue that the cases at bar pose a at the EDSA Shrine is the oath under the 1987 Constitution.[64] In her oath,
political question, and hence, are beyond the jurisdiction of this Court to she categorically swore to preserve and defend the 1987
decide. They contend that shorn of its embroideries, the cases at bar assail Constitution. Indeed, she has stressed that she is discharging the powers of
the legitimacy of the Arroyo administration. They stress that respondent the presidency under the authority of the 1987 Constitution.
Arroyo ascended the presidency through people power; that she has already In fine, the legal distinction between EDSA People Power I and EDSA People
taken her oath as the 14th President of the Republic; that she has exercised Power II is clear. EDSA I involves the exercise of the people power of
the powers of the presidency and that she has been recognized by foreign revolution which overthrew the whole government. EDSA II is an exercise
governments. They submit that these realities on ground constitute the of people power of freedom of speech and freedom of assembly to petition
political thicket which the Court cannot enter. the government for redress of grievances which only affected the office of
We reject private respondents submission. To be sure, courts here and the President. EDSA I is extra constitutional and the legitimacy of the new
abroad, have tried to lift the shroud on political question but its exact government that resulted from it cannot be the subject of judicial review,
latitude still splits the best of legal minds. Developed by the courts in the but EDSA II is intra constitutional and the resignation of the sitting President
20th century, the political question doctrine which rests on the principle of that it caused and the succession of the Vice President as President are
separation of powers and on prudential considerations, continue to be subject to judicial review. EDSA I presented political question; EDSA II
refined in the mills constitutional law.[55] In the United States, the most involves legal questions. A brief discourse on freedom of speech and of the
authoritative guidelines to determine whether a question is political were freedom of assembly to petition the government for redress of grievance
spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr,[56] viz: which are the cutting edge of EDSA People Power II is not inappropriate.
x x x Prominent on the surface on any case held to involve a political question Freedom of speech and the right of assembly are treasured by
is found a textually demonstrable constitutional commitment of the issue to Filipinos. Denial of these rights was one of the reasons of our 1898 revolution
a coordinate political department or a lack of judicially discoverable and against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
manageable standards for resolving it, or the impossibility of deciding recognition of freedom of the press of the Filipinos and included it as among
without an initial policy determination of a kind clearly for nonjudicial the reforms sine quibus non.[65] The Malolos Constitution, which is the work
discretions; or the impossibility of a courts undertaking independent of the revolutionary Congress in 1898, provided in its Bill of Rights that
resolution without expressing lack of the respect due coordinate branches of Filipinos shall not be deprived (1) of the right to freely express his ideas or
opinions, orally or in writing, through the use of the press or other similar quibble: there must be an intent to resign and the intent must be coupled
means; (2) of the right of association for purposes of human life and which by acts of relinquishment.[78] The validity of a resignation is not governed by
are not contrary to public means; and (3) of the right to send petitions to the any formal requirement as to form. It can be oral. It can be written. It can be
authorities, individually or collectively. These fundamental rights were express. It can be implied. As long as the resignation is clear, it must be given
preserved when the United States acquired jurisdiction over the legal effect.
Philippines. In the instruction to the Second Philippine Commission of April In the cases at bar, the facts shows that petitioner did not write any formal
7, 1900 issued by President McKinley, it is specifically provided that no law letter of resignation before he evacuated Malacaang Palace in the Afternoon
shall be passed abridging the freedom of speech or of the press or of the of January 20, 2001 after the oath-taking of respondent
rights of the people to peaceably assemble and petition the Government for Arroyo.Consequently, whether or not petitioner resigned has to be
redress of grievances. The guaranty was carried over in the Philippine Bill, the determined from his acts and omissions before, during and after January 20,
Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of 2001 or by the totality of prior, contemporaneous and posterior facts and
August 29, 1966.[66] circumstantial evidence bearing a material relevance on the issue.
Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and Using this totality test, we hold that petitioner resigned as President.
the 1973[68] Constitution. These rights are now safely ensconced in section 4, To appreciate the public pressure that led to the resignation of the
Article III of the 1987 Constitution, viz: petitioner, it is important to follow the succession of events after the expos
Sec. 4. No law shall be passed abridging the freedom of speech, of of Governor Singson. The Senate Blue Ribbon Committee investigated.The
expression, or of the press, or the right of the people peaceably to assemble more detailed revelations of petitioners alleged misgovernance in the Blue
and petition the government for redress of grievances. Ribbon investigation spiked the hate against him. The Articles of
The indispensability of the peoples freedom of speech and of assembly to Impeachment filed in the House of Representatives which initially was given
democracy is now self-evident. The reasons are well put by Emerson: first, a near cipher chance of succeeding snowballed. In express speed, it gained
freedom of expression is essential as a means of assuring individual the signatures of 115 representatives or more than 1/3 of the House of
fulfillment; second, it is an essential process for advancing knowledge and Representatives. Soon, petitioners powerful political allies began deserting
discovering truth; third, it is essential to provide for participation in decision- him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President
making by all members of society; and fourth, it is a method of achieving a Drilon and Former Speaker Villar defected with 47 representatives in
more adaptable and hence, a more stable community of maintaining the tow. Then, his respected senior economic advisers resigned together with his
precarious balance between healthy cleavage and necessary Secretary of Trade and Industry.
consensus.[69] In this sense, freedom of speech and of assembly provides a As the political isolation of the petitioner worsened, the peoples call for his
framework in which the conflict necessary to the progress of a society can resignation intensified. The call reached a new crescendo when the eleven
take place without destroying the society.[70] In Hague v. Committee for (11) members of the impeachment tribunal refused to open the second
Industrial Organization,[71] this function of free speech and assembly was envelope. It sent the people to paroxysms of outrage. Before the night of
echoed in the amicus curiae brief filed by the Bill of Rights Committee of the January 16 was over, the EDSA Shrine was swarming with people crying for
American Bar Association which emphasized that the basis of the right of redress of their grievance. Their number grew exponentially.Rallies and
assembly is the substitution of the expression of opinion and belief by talk demonstration quickly spread to the countryside like a brush fire.
rather than force; and this means talk for all and by all.[72] In the As events approached January 20, we can have an authoritative window on
relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly the state of mind of the petitioner. The window is provided in the Final Days
stressed that "... it should be clear even to those with intellectual deficits that of Joseph Ejercito Estrada, the diary of Executive Secretary Angara serialized
when the sovereign people assemble to petition for redress of grievances, all in the Philippine Daily Inquirer.[79] The Angara Diary reveals that in morning
should listen. For in a democracy, it is the people who count; those who are of January 19, petitioners loyal advisers were worried about the swelling of
deaf to their grievances are ciphers. the crowd at EDSA, hence, they decided to crate an ad hoc committee to
Needless to state, the cases at bar pose legal and not political questions. The handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled
principal issues for resolution require the proper interpretation of certain Secretary Angara into his small office at the presidential residence and
provisions in the 1987 Constitution, notably section 1 of Article II, [74] and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is
section 8[75]of Article VII, and the allocation of governmental powers under serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner
section 11[76] of Article VII. The issues likewise call for a ruling on the scope of decided to call for a snap presidential election and stressed he would not be
presidential immunity from suit. They also involve the correct calibration of a candidate. The proposal for a snap election for president in May where he
the right of petitioner against prejudicial publicity. As early as the 1803 case would not be a candidate is an indicium that petitioner had intended to
of Marbury v. Madison,[77] the doctrine has been laid down that it is give up the presidency even at that time. At 3:00 p.m., General Reyes joined
emphatically the province and duty of the judicial department to say what the sea of EDSA demonstrators demanding the resignation of the petitioner
the law is . . . Thus, respondents invocation of the doctrine of political is but and dramatically announced the AFPs withdrawal of support from the
a foray in the dark. petitioner and their pledge of support to respondent Arroyo. The seismic
II shift of support left petitioner weak as a president. According to Secretary
Whether or not the petitioner resigned as President Angara, he asked Senator Pimentel to advise petitioner to consider the
We now slide to the second issue. None of the parties considered this issue option of dignified exit or resignation.[81] Petitioner did nor disagree but
as posing a political question. Indeed, it involves a legal question whose listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m.,
factual ingredient is determinable from the records of the case and by resort Senator Pimentel repeated to the petitioner the urgency of making a graceful
to judicial notice. Petitioner denies he resigned as President or that he and dignified exit. He gave the proposal a sweetener by saying that petitioner
suffers from a permanent disability. Hence, he submits that the office of the would allowed to go abroad with enough funds to support him and his
President was not vacant when respondent Arroyo took her oath as family.[83] Significantly, the petitioner expressed no objection to the
president. suggestion for a graceful and dignified exit but said he would never leave
The issue brings under the microscope of the meaning of section 8, Article VII the country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed,
of the Constitution which provides: Angie (Reyes) guaranteed that I would have five days to a week in the
Sec. 8. In case of death, permanent disability, removal from office or palace.[85] This is proof that petitioner had reconciled himself to the reality
resignation of the President, the Vice President shall become the President that he had to resign. His mind was already concerned with the five-day
to serve the unexpired term. In case of death, permanent disability, removal grace period he could stay in the palace. It was a matter of time.
from office, or resignation of both the President and Vice President, the The pressure continued piling up. By 11:00 p.m., former President Ramos
President of the Senate or, in case of his inability, the Speaker of the House called up Secretary Angara and requested, Ed, magtulungan tayo para
of Representatives, shall then acts as President until President or Vice magkaroon tayo ng (lets cooperate to ensure a) peaceful and orderly
President shall have been elected and qualified. transfer of power.[86] There was no defiance to the request. Secretary Angara
x x x. readily agreed. Again, we note that at this stage, the problem was already
The issue then is whether the petitioner resigned as President or should be about a peaceful and orderly transfer of power. The resignation of the
considered resigned as of January 20, 2001 when respondent took her oath petitioner was implied.
as the 14th President of the Republic. Resignation is not a high level legal The first negotiation for a peaceful and orderly transfer of power
abstraction. It is a factual question and its elements are beyond immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the transition During the Transition Period, the AFP and the Philippine National Police
period of five days after the petitioners resignation; (2) the guarantee of the (PNP) shall function under Vice President (Macapagal) as national military
safety of the petitioner and his family, and (3) the agreement to open the and police authorities.
second envelope to vindicate the name of the petitioner.[87] Again, we note Both parties hereto agree that the AFP chief of staff and PNP director general
that the resignation of petitioner was not a disputed point. The petitioner shall obtain all the necessary signatures as affixed to this agreement and
cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 insure faithful implementation and observance thereof.
a.m., he briefed the petitioner on the three points and the following entry in Vice President Gloria Macapagal-Arroyo shall issue a public statement in the
the Angara Diary shows the reaction of the petitioner, viz: form and tenor provided for in Annex A heretofore attached to this
xxx agreement.[89]
I explain what happened during the first round of The second round of negotiation cements the reading that the petitioner
negotiations. The President immediately stresses that he just wants the five- has resigned. It will be noted that during this second round of negotiation,
day period promised by Reyes, as well as to open the second envelope to the resignation of the petitioner was again treated as a given fact. The only
clear his name. unsettled points at that time were the measures to be undertaken by the
If the envelope is opened, on Monday, he says, he will leave by Monday. parties during and after the transition period.
The President says. Pagod na pagod na ako. Ayoko na masyado nang According to Secretary Angara, the draft agreement which was premised on
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I the resignation of the petitioner was further refined. It was then signed by
dont want any more of this its too painful. Im tired of the red tape, the their side and he was ready to fax it to General Reyes and Senator Pimentel
bureaucracy, the intrigue.) to await the signature of the United Opposition. However, the signing by the
I just want to clear my name, then I will go.[88] party of the respondent Arroyo was aborted by her oath-taking. The Angara
Again, this is high grade evidence that the petitioner has resigned. The Diary narrates the fateful events, viz:[90]
intent to resign is clear when he said x x x Ayoko na masyado nang xxx
masakit. Ayoko na are words of resignation. 11:00 a.m. Between General Reyes and myself, there is a firm agreement on
The second round of negotiation resumed at 7:30 a.m. According to the the five points to effect a peaceful transition. I can hear the general clearing
Angara Diary, the following happened: all these points with a group he is with. I hear voices in the background.
Oppositions deal Agreement
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) The agreement starts: 1. The President shall resign today, 20 January 2001,
Rene Corona. For this round, I am accompanied by Dondon Bagatsing and which resignation shall be effective on 24 January 2001, on which day the
Macel. Vice President will assume the presidency of the Republic of the Philippines.
Rene pulls out a document titled Negotiating Points. It reads: xxx
1. The President shall sign a resignation document within the day, 20 January The rest of the agreement follows:
2001, that will be effective on Wednesday, 24 January 2001, on which day 2. The transition process for the assumption of the new administration shall
the Vice President will assume the Presidency of the Republic of the commence on 20 January 2001, wherein persons designated by the Vice
Philippines. President to various government positions shall start orientation activities
2. Beginning today, 20 January 2001, the transition process for the with incumbent officials.
assumption of the new administration shall commence, and persons 3. The Armed Forces of the Philippines through its Chief of Staff, shall
designated by the Vice president to various positions and offices of the guarantee the safety and security of the President and his families
government shall start their orientation activities in coordination with the throughout their natural lifetimes as approved by the national military and
incumbent officials concerned. police authority Vice President.
3. The Armed Forces of the Philippines and the Philippine National Police 4. The AFP and the Philippine National Police (PNP) shall function under the
shall function under the Vice President as national military and police Vice President as national military and police authorities.
effective immediately. 5. Both parties request the impeachment court to open the second envelope
4. The Armed Forces of the Philippines, through its Chief of Staff, shall in the impeachment trial, the contents of which shall be offered as proof that
guarantee the security of the president and his family as approved by the the subject savings account does not belong to the President.
national military and police authority (Vice President). The Vice President shall issue a public statement in the form and tenor
5. It is to be noted that the Senate will open the second envelope in provided for in Annex B heretofore attached to this agreement.
connection with the alleged savings account of the President in the Equitable xxx
PCI Bank in accordance with the rules of the Senate, pursuant to the request 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our
to the Senate President. agreement, signed by our side and awaiting the signature of the United
Our deal Opposition.
We bring out, too, our discussion draft which reads: And then it happens. General Reyes calls me to say that the Supreme Court
The undersigned parties, for and in behalf of their respective principals, has decided that Gloria Macapagal-Arroyo is President and will be sworn in at
agree and undertake as follows: 12 noon.
1. A transition will occur and take place on Wednesday, 24 January 2001, at Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt
which time President Joseph Ejercito Estrada will turn over the presidency to you wait? What about the agreement)? I asked.
Vice President Gloria Macapagal-Arroyo. Reyes answered: Wala na, sir (Its over, sir).
2. In return, President Estrada and his families are guaranteed security and I asked him: Di yung transition period, moot and academic na?
safety of their person and property throughout their natural And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting
lifetimes. Likewise, President Estrada and his families are guaranteed that part).
freedom from persecution or retaliation from government and the private Contrary to subsequent reports, I do not react and say that there was a
sector throughout their natural lifetimes. double cross.
This commitment shall be guaranteed by the Armed Forces of the Philippines But I immediately instruct Macel to delete the first provision on resignation
(AFP) through the Chief of Staff, as approved by the national military and since this matter is already moot and academic. Within moments, Macel
police authorities Vice President (Macapagal). erases the first provision and faxes the documents, which have been signed
3. Both parties shall endeavor to ensure that the Senate siting as an by myself, Dondon and Macel to Nene Pimentel and General Reyes.
impeachment court will authorize the opening of the second envelope in the I direct Demaree Ravel to rush the original document to General Reyes for
impeachment trial as proof that the subject savings account does not belong the signatures of the other side, as it is important that the provision on
to President Estrada. security, at least, should be respected.
4. During the five-day transition period between 20 January 2001 and 24 I then advise the President that the Supreme Court has ruled that Chief
January 2001 (the Transition Period), the incoming Cabinet members shall Justice Davide will administer the oath to Gloria at 12 noon.
receive an appropriate briefing from the outgoing Cabinet officials as part of The president is too stunned for words.
the orientation program. Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the significance. Petitioners resignation from the presidency cannot be the
compound. subject of a changing caprice nor of a whimsical will especially if the
The President is having his final meal at the Presidential Residence with the resignation is the result of his repudiation by the people. There is another
few friends and Cabinet members who have gathered. reason why this Court cannot give any legal significance to petitioners letter
By this time, demonstrators have already broken down the first line of and this shall be discussed in issue number III of this Decision.
defense at Mendiola. Only the PSG is there to protect the Palace, since the After petitioner contended that as a matter of fact he did not resign, he
police and military have already withdrawn their support for the President. also argues that he could not resign as a matter of law. He relies on section
1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada 12 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
familys personal possessions as they can. Act, which allegedly prohibits his resignation, viz:
During lunch, Ronie Puno mentions that the President needs to release Sec. 12. No public officer shall be allowed to resign or retire pending an
a final statement before leaving Malacaang. investigation, criminal or administrative, or pending a prosecution against
The statement reads: At twelve oclock noon today, Vice President Gloria him, for any offense under this Act or under the provisions of the Revised
Macapagal-Arroyo took her oath as President of the Republic of the Penal Code on bribery.
Philippines. While along with many other legal minds of our country, I have A reading of the legislative history of RA No. 3019 will hardly provide any
strong and serious doubts about the legality and constitutionality of her comfort to the petitioner. RA No. 3019 originated from Senate Bill No.
proclamation as president, I do not wish to be a factor that will prevent the 293. The original draft of the bill, when it was submitted to the Senate, did
restoration of unity and order in our civil society. not contain a provision similar to section 12 of the law as it now
It is for this reason that I now leave Malacaang Palace, the seat of the stands. However, in his sponsorship speech, Senator Arturo Tolentino, the
presidency of this country, for the sake of peace and in order to begin the author of the bill, reserved to propose during the period of amendments the
healing process of our nation. I leave the Palace of our people with gratitude inclusion of a provision to the effect that no public official who is under
for the opportunities given to me for service to our people. I will not shrik prosecution for any act of graft or corruption, or is under administrative
from any future challenges that may come ahead in the same service of our investigation, shall be allowed to voluntarily resign or retire.[92] During the
country. period of amendments, the following provision was inserted as section 15:
I call on all my supporters and followers to join me in the promotion of a Sec. 15. Termination of office No public official shall be allowed to resign or
constructive national spirit of reconciliation and solidarity. retire pending an investigation, criminal or administrative, or pending a
May the Almighty bless our country and our beloved people. prosecution against him, for any offense under the Act or under the
MABUHAY! provisions of the Revised Penal Code on bribery.
It was curtain time for the petitioner. The separation or cessation of a public official from office shall not be a bar
In sum, we hold that the resignation of the petitioner cannot be doubted. It to his prosecution under this Act for an offense committed during his
was confirmed by his leaving Malacaang. In the press release containing his incumbency.[93]
final statement, (1) he acknowledged the oath-taking of the respondent as The bill was vetoed by then President Carlos P. Garcia who questioned the
President of the Republic albeit with the reservation about its legality; (2) he legality of the second paragraph of the provision and insisted that the
emphasized he was leaving the Palace, the seat of the presidency, for the Presidents immunity should extend even after his tenure.
sake of peace and in order to begin the healing process of our nation. He did Senate Bill No. 571, which was substantially similar to Senate Bill No. 293,
not say he was leaving the Palace due to any kind of inability and that he was thereafter passed. Section 15 above became section 13 under the new
was going to re-assume the presidency as soon as the disability bill, but the deliberations on this particular provision mainly focused on the
disappears; (3) he expressed his gratitude to the people for the opportunity immunity of the President which was one of the reasons for the veto of the
to serve them. Without doubt, he was referring to the past original bill. There was hardly any debate on the prohibition against the
opportunity given him to serve the people as President; (4) he assured that resignation or retirement of a public official with pending criminal and
he will not shirk from any future challenge that may come ahead in the same administrative cases against him. Be that as it may, the intent of the law
service of our country. Petitioners reference is to a future challenge after ought to be obvious. It is to prevent the act of resignation or retirement
occupying the office of the president which he has given up; and (5) he from being used by a public official as a protective shield to stop the
called on his supporters to join him in the promotion of a constructive investigation of a pending criminal or administrative case against him and
national spirit of reconciliation and solidarity. Certainly, the national spirit of to prevent his prosecution under the Anti-Graft Law or prosecution for
reconciliation and solidarity could not be attained if he did not give up the bribery under the Revised Penal Code. To be sure, no person can be
presidency. The press release was petitioners valedictory, his final act of compelled to render service for that would be a violation of his constitutional
farewell. His presidency is now in the past tense. right.[94] A public official has the right not to serve if he really wants to retire
It is, however, urged that the petitioner did not resign but only took a or resign.Nevertheless, if at the time he resigns or retires, a public official is
temporary leave of absence due to his inability to govern. In support of this facing administrative or criminal investigation or prosecution, such
thesis, the letter dated January 20, 2001 of the petitioner sent to Senate resignation or retirement will not cause the dismissal of the criminal or
President Pimentel and Speaker Fuentebella is cited. Again, we refer to the administrative proceedings against him. He cannot use his resignation or
said letter, viz: retirement to avoid prosecution.
Sir There is another reason why petitioners contention should be rejected. In
By virtue of the provisions of Section II, Article VII of the Constitution, I am the cases at bar, the records show that when petitioner resigned on January
hereby transmitting this declaration that I am unable to exercise the powers 20, 2001, the cases filed against him before the Ombudsman were OMB Case
and duties of my office. By operation of law and the Constitution, the Vice Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
President shall be the Acting President. these cases have been filed, the respondent Ombudsman refrained from
(Sgd.) Joseph Ejercito Estrada conducting the preliminary investigation of the petitioner for the reason that
To say the least, the above letter is wrapped in mystery.[91] The pleadings as the sitting President then, petitioner was immune from suit. Technically,
filed by the petitioner in the cases at bar did not discuss, nay even intimate, the said cases cannot be considered as pending for the Ombudsman lacked
the circumstances that led to its preparation. Neither did the counsel of the jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
petitioner reveal to the Court these circumstances during the oral invoked by the petitioner for it contemplates of cases whose investigation or
argument. It strikes the Court as strange that the letter, despite its legal prosecution do not suffer from any insuperable legal obstacle like the
value, was never referred to by the petitioner during the week-long immunity from suit of a sitting President.
crisis. To be sure, there was not the slightest hint of its existence when he Petitioner contends that the impeachment proceeding is an administrative
issued his final press release. It was all too easy for him to tell the Filipino investigation that, under section 12 of RA 3019, bars him from resigning. We
people in his press release that he was temporarily unable to govern and that hold otherwise. The exact nature of an impeachment proceeding is
he was leaving the reins of government to respondent Arroyo for the time debatable. But even assuming arguendo that it is an administrative
being. Under any circumstance, however, the mysterious letter cannot proceeding, it can not be considered pending at the time petitioner resigned
negate the resignation of the petitioner. If it was prepared before the press because the process already broke down when a majority of the senator-
release of the petitioner clearly showing his resignation from the presidency, judges voted against the opening of the second envelope, the public and
then the resignation must prevail as a later act. If, however, it was private prosecutors walked out, the public prosecutors filed their
prepared after the press release, still, it commands scant legal Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending WHEREAS, it is axiomatic that the obligations of the government cannot be
against petitioner when he resigned. achieved if it is divided, thus by reason of the constitutional duty of the
III House of Representatives as an institution and that of the individual
Whether or not the petitioner is only temporarily unable to act as President.
members thereof of fealty to the supreme will of the people, the House of
We shall now tackle the contention of the petitioner that he is merely Representatives must ensure to the people a stable, continuing government
temporarily unable to perform the powers and duties of the presidency, and and therefore must remove all obstacles to the attainment thereof;
hence is a President on leave. As aforestated, the inability claim is contained WHEREAS, it is a concomitant duty of the House of Representatives to exert
in the January 20, 2001 letter of petitioner sent on the same day to Senate all efforts to unify the nation, to eliminate fractious tension, to heal social
President Pimentel and Speaker Fuentebella. and political wounds, and to be an instrument of national reconciliation and
Petitioner postulates that respondent Arroyo as Vice President has no power solidarity as it is a direct representative of the various segments of the whole
to adjudge the inability of the petitioner to discharge the powers and duties nation;
of the presidency. His significant submittal is that Congresshas the ultimate WHEREAS, without surrendering its independence, it is vital for the
authority under the Constitution to determine whether the President is attainment of all the foregoing, for the House of Representatives to extend
incapable of performing his functions in the manner provided for in section its support and collaboration to the administration of Her Excellency,
11 of Article VII.[95] This contention is the centerpiece of petitioners President Gloria Macapagal-Arroyo, and to be a constructive partner in
stance that he is a President on leave and respondent Arroyo is only an nation-building, the national interest demanding no less: Now, therefore, be
Acting President. it
An examination of section 11, Article VII is in order. It provides: Resolved by the House of Representatives, To express its support to the
SEC. 11. Whenever the President transmit to the President of the Senate and assumption into office by Vice President Gloria Macapagal-Arroyo as
the Speaker of the House of Representatives his written declaration that he President of the Republic of the Philippines, to extend its congratulations and
is unable to discharge the powers and duties of his office, and until he to express its support for her administration as a partner in the attainment of
transmits to them a written declaration to the contrary, such powers and the Nations goals under the Constitution.
duties shall be discharged by the Vice-President as Acting President. Adopted,
Whenever a majority of all the Members of the Cabinet transmit to the (Sgd.) FELICIANO BELMONTE JR.
President of the Senate and to the Speaker of the House of Representatives Speaker
their written declaration that the President is unable to discharge the powers This Resolution was adopted by the House of Representatives on January 24,
and duties of his office, the Vice-President shall immediately assume the 2001.
powers and duties of the office as Acting President. (Sgd.) ROBERTO P. NAZARENO
Thereafter, when the President transmits to the President of the Senate and Secretary General
to the Speaker of the House of Representatives his written declaration that On February 7, 2001, the House of the Representatives passed House
no inability exists, he shall reassume the powers and duties of his Resolution No. 178[98] which states:
office. Meanwhile, should a majority of all the Members of the Cabinet RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
transmit within five days to the President of the Senate and to the Speaker of NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
the House of Representatives their written declaration that the President is OF THE REPUBLIC OF THE PHILIPPINES
unable to discharge the powers and duties of his office, the Congress shall WHEREAS, there is a vacancy in the Office of the Vice President due to the
decide the issue. For that purpose, the Congress shall convene, if it is not in assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
session, within forty-eight hours, in accordance with its rules and without WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President
need of call. in the event of such vacancy shall nominate a Vice President from among the
If the Congress, within ten days after receipt of the last written declaration, members of the Senate and the House of Representatives who shall assume
or, if not in session within twelve days after it is required to assemble, office upon confirmation by a majority vote of all members of both Houses
determines by a two-thirds vote of both Houses, voting separately, that the voting separately;
President is unable to discharge the powers and duties of his office, the Vice- WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
President shall act as President; otherwise, the President shall continue Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice
exercising the powers and duties of his office." President of the Republic of the Philippines;
That is the law. Now the operative facts: WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to integrity, competence and courage; who has served the Filipino people with
the Senate President and Speaker of the House; dedicated responsibility and patriotism;
(2) Unaware of the letter, respondent Arroyo took her oath of office as WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of
President on January 20, 2001 at about 12:30 p.m.; true statesmanship, having served the government in various capacities,
(3) Despite receipt of the letter, the House of Representative passed on among others, as Delegate to the Constitutional Convention, Chairman of the
January 24, 2001 House Resolution No. 175;[96] Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
On the same date, the House of the Representatives passed House the Philippines - qualities which merit his nomination to the position of Vice
Resolution No. 176[97]which states: President of the Republic: Now, therefore, be it
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF Resolved as it is hereby resolved by the House of Representatives, That the
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT House of Representatives confirms the nomination of Senator Teofisto T.
GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE Guingona, Jr. as the Vice President of the Republic of the Philippines.
WHEREAS, as a consequence of the peoples loss of confidence on the ability This Resolution was adopted by the House of Representatives on February 7,
of former President Joseph Ejercito Estrada to effectively govern, the Armed 2001.
Forces of the Philippines, the Philippine National Police and majority of his (Sgd.) ROBERTO P. NAZARENO
cabinet had withdrawn support from him; Secretary General
WHEREAS, upon authority of an en banc resolution of the Supreme Court, (4) Also, despite receipt of petitioners letter claiming inability, some twelve
Vice President Gloria Macapagal-Arroyo was sworn in as President of the (12) members of the Senate signed the following:
Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; RESOLUTION
WHEREAS, immediately thereafter, members of the international community WHEREAS, the recent transition in government offers the nation
had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo an opportunity for meaningful change and challenge;
as President of the Republic of the Philippines; WHEREAS, to attain desired changes and overcome awesome challenges the
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused nation needs unity of purpose and resolute cohesive resolute (sic) will;
a policy of national healing and reconciliation with justice for the purpose of WHEREAS, the Senate of the Philippines has been the forum for vital
national unity and development; legislative measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of clear in that recognition is the premise that the inability of petitioner
President Gloria Macapagal-Arroyo and resolve to discharge our duties to Estrada is no longer temporary. Congress has clearly rejected petitioners
attain desired changes and overcome the nations challenges.[99] claim of inability.
On February 7, the Senate also passed Senate Resolution No. 82[100] which The question is whether this Court has jurisdiction to review the claim
states: of temporary inability of petitioner Estrada and thereafter revise the
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS decision of both Houses of Congress recognizing respondent Arroyo as
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF President of the Philippines. Following Taada v. Cuenco,[102] we hold that this
THE REPUBLIC OF THE PHILIPPINES Court cannot exercise its judicial power for this is an issue in regard to
WHEREAS, there is it vacancy in the Office of the Vice-President due to the which full discretionary authority has been delegated to the Legislative x x x
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; branch of the government. Or to use the language in Baker vs.
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President Carr,[103] there is a textually demonstrable constitutional commitment of the
in the event of such vacancy shall nominate a Vice President from among the issue to a coordinate political department or a lack of judicially discoverable
members of the Senate and the House of Representatives who shall assume and manageable standards for resolving it. Clearly, the Court cannot pass
office upon confirmation by a majority vote of all members of both Houses upon petitioners claim of inability to discharge the powers and duties of the
voting separately; presidency. The question is political innature and addressed solely to
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Congress by constitutional fiat. It is a political issue which cannot be decided
Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice by this Court without transgressing the principle of separation of powers.
President of the Republic of the Phillippines; In fine, even if the petitioner can prove that he did not resign, still, he cannot
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with successfully claim that he is a President on leave on the ground that he is
integrity, competence, and courage; who has served the Filipino people with merely unable to govern temporarily. That claim has been laid to rest by
dedicated responsibility and patriotism; Congress and the decision that respondent Arroyo is the de jure President
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true made by a co-equal branch of government cannot be reviewed by this Court.
statesmanship, having served the government in various capacities, among IV
Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity
others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice. Senator of Petitioner Estrada makes two submissions: first, the cases filed against him
the land - which qualities merit his nomination to the position of Vice before the respondent Ombudsman should be prohibited because he has not
President of the Republic: Now, therefore, be it been convicted in the impeachment proceedings against him; and second, he
Resolved, as it is hereby resolved, That the Senate confirm the nomination of enjoys immunity from all kinds of suit, whether criminal or civil.
Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Before resolving petitioners contentions, a revisit of our legal history on
Philippines. executive immunity will be most enlightening. The doctrine of executive
Adopted, immunity in this jurisdiction emerged as a case law. In the 1910 case
(Sgd.) AQUILINO Q. PIMENTEL JR. of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent Tiaco, a
President of the Senate Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of
This Resolution was adopted by the Senate on February 7, 2001. the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and
(Sgd.) LUTGARDO B. BARBO Chief of the Secret Service of the City of Manila, respectively, for damages for
Secretary of the Senate allegedly conspiring to deport him to China. In granting a writ of prohibition,
On the same date, February 7, the Senate likewise passed Senate Resolution this Court, speaking thru Mr. Justice Johnson, held:
No. 83[101] which states: The principle of nonliability, as herein enunciated, does not mean that the
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS judiciary has no authority to touch the acts of the Governor-General; that he
OFFICIO may, under cover of his office, do what he will, unimpeded and
Resolved, as it is hereby resolved. That the Senate recognize that the unrestrained. Such a construction would mean that tyranny, under the guise
Impeachment Court is functus officio and has been terminated. of the execution of the law, could walk defiantly abroad, destroying rights of
Resolved, further, That the Journals of the Impeachment Court of Monday, person and of property, wholly free from interference of courts or
January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be legislatures. This does not mean, either, that a person injured by the
considered approved. executive authority by an act unjustifiable under the law has no remedy, but
Resolved, further, That the records of the Impeachment Court including the must submit in silence. On the contrary, it means, simply, that the Governor-
second envelope be transferred to the Archives of the Senate for proper General, like the judges of the courts and the members of the Legislature,
safekeeping and preservation in accordance with the Rules of the may not be personally mulcted in civil damages for the consequences of an
Senate. Disposition and retrieval thereof shall be made only upon written act executed in the performance of his official duties. The judiciary has full
approval of the Senate President. power to, and will, when the matter is properly presented to it and the
Resolved, finally. That all parties concerned be furnished copies of this occasion justly warrants it, declare an act of the Governor-General illegal and
Resolution. void and place as nearly as possible in status quo any person who has been
Adopted, deprived his liberty or his property by such act. This remedy is assured to
(Sgd.) AQUILINO Q. PIMENTEL, JR. every person, however humble or of whatever country, when his personal or
President of the Senate property rights have been invaded, even by the highest authority of the
This Resolution was adopted by the Senate on February 7, 2001. state. The thing which the judiciary can not do is mulct the Governor-General
(Sgd.) LUTGARDO B. BARBO personally in damages which result from the performance of his official duty,
Secretary of the Senate any more that it can a member of the Philippine Commission or the
(5) On February 8, the Senate also passed Resolution No. 84 certifying to the Philippine Assembly. Public policy forbids it.
existence of a vacancy in the Senate and calling on the COMELEC to fill Neither does this principle of nonliability mean that the chief executive may
up such vacancy through election to be held simultaneously with the regular not be personally sued at all in relation to acts which he claims to perform as
election on May 14, 2001 and the senatorial candidate garnering the such official. On the contrary, it clearly appears from the discussion
thirteenth (13th) highest number of votes shall serve only for the unexpired heretofore had, particularly that portion which touched the liability of judges
term of Senator Teofisto T. Guingona, Jr. and drew an analogy between such liability and that of the Governor-
(6) Both houses of Congress started sending bills to be signed into law by General, that the latter is liable when he acts in a case so plainly outside of
respondent Arroyo as President. his power and authority that he can not be said to have exercise discretion in
(7) Despite the lapse of time and still without any functioning Cabinet, determining whether or not he had the right to act. What is held here is that
without any recognition from any sector of government, and without he will be protected from personal liability for damages not only when he
any support from the Armed Forces of the Philippines and the Philippine acts within his authority, but also when he is without authority, provided he
National Police, the petitioner continues to claim that his inability to govern actually used discretion and judgment, that is, the judicial faculty, in
is only momentary. determining whether he had authority to act or not. In other words, he is
What leaps to the eye from these irrefutable facts is that both houses of entitled to protection in determining the question of his authority. If he
Congress have recognized respondent Arroyo as the President. Implicitly decide wrongly, he is still protected provided the question of his authority
was one over which two men, reasonably qualified for that position, might prosecutors and by the events that led to his loss of the presidency. Indeed,
honestly differ; but he is not protected if the lack of authority to act is so on February 7, 2001, the Senate passed Senate Resolution No. 83
plain that two such men could not honestly differ over its determination. In Recognizing that the Impeachment Court is Functus Officio.[109] Since the
such case, he acts, not as Governor-General but as a private individual, and, Impeachment Court is now functus officio, it is untenable for petitioner to
as such, must answer for the consequences of his act. demand that he should first be impeached and then convicted before he can
Mr. Justice Johnson underscored the consequences if the Chief Executive was be prosecuted. The plea if granted, would put a perpetual bar against his
not granted immunity from suit, viz: x x x. Action upon important matters of prosecution. Such a submission has nothing to commend itself for it will
state delayed; the time and substance of the chief executive spent in place him in a better situation than a non-sitting President who has not been
wrangling litigation; disrespect engendered for the person of one of the subjected to impeachment proceedings and yet can be the object of a
highest officials of the State and for the office he occupies; a tendency to criminal prosecution. To be sure, the debates in the Constitutional
unrest and disorder; resulting in a way, in a distrust as to the integrity of Commission make it clear that when impeachment proceedings have
government itself.[105] become moot due to the resignation of the President, the proper criminal
Our 1935 Constitution took effect but it did not contain any specific and civil cases may already be filed against him, viz:[110]
provision on executive immunity. Then came the tumult of the martial law xxx
years under the late President Ferdinand E. Marcos and the 1973 Mr. Aquino. On another point, if an impeachment proceeding has been filed
Constitution was born. In 1981, it was amended and one of the against the President, for example, and the President resigns before
amendments involved executive immunity. Section 17, Article VII stated: judgment of conviction has been rendered by the impeachment court or by
The President shall be immune from suit during his tenure. Thereafter, no the body, how does it affect the impeachment proceeding? Will it be
suit whatsoever shall lie for official acts done by him or by others pursuant to necessarily dropped?
his specific orders during his tenure. Mr. Romulo. If we decide the purpose of impeachment to remove one from
The immunities herein provided shall apply to the incumbent President office, then his resignation would render the case moot and
referred to in Article XVII of this Constitution. academic. However, as the provision says, the criminal and civil aspects of it
In his second Vicente G. Sinco Professional Chair Lecture entitled, may continue in the ordinary courts.
Presidential Immunity And All The Kings Men: The Law Of Privilege As A This is in accord with our ruling in In re: Saturnino Bermudez[111]that
Defense To Actions For Damages,[106] petitioners learned counsel, former incumbent Presidents are immune from suit or from being brought to court
Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the during the period of their incumbency and tenure but not
modifications effected by this constitutional amendment on the existing law beyond.Considering the peculiar circumstance that the impeachment
on executive privilege. To quote his disquisition: process against the petitioner has been aborted and thereafter he lost the
In the Philippines, though, we sought to do the Americans one better by presidency, petitioner Estrada cannot demand as a condition sine qua non to
enlarging and fortifying the absolute immunity concept. First, we extended it his criminal prosecution before the Ombudsman that he be convicted in the
to shield the President not only from civil claims but also from criminal cases impeachment proceedings. His reliance in the case of Lecaroz vs.
and other claims. Second, we enlarged its scope so that it would cover even Sandiganbayan[112] and related cases[113]are inapropos for they have a
acts of the President outside the scope of official duties. And third, we different factual milieu.
broadened its coverage so as to include not only the President but also other We now come to the scope of immunity that can be claimed by petitioner as
persons, be they government officials or private individuals, who acted upon a non-sitting President. The cases filed against petitioner Estrada are criminal
orders of the President. It can be said that at that point most of us were in character. They involve plunder, bribery and graft and corruption. By no
suffering from AIDS (or absolute immunity defense syndrome). stretch of the imagination can these crimes, especially plunder which carries
The Opposition in the then Batasan Pambansa sought the repeal of this the death penalty, be covered by the allege mantle of immunity of a non-
Marcosian concept of executive immunity in the 1973 Constitution. The sitting president. Petitioner cannot cite any decision of this Court licensing
move was led by then Member of Parliament, now Secretary of Finance, the President to commit criminal acts and wrapping him with post-tenure
Alberto Romulo, who argued that the after incumbency immunity granted to immunity from liability. It will be anomalous to hold that immunity is an
President Marcos violated the principle that a public office is a public inoculation from liability for unlawful acts and omissions. The rule is that
trust. He denounced the immunity as a return to the anachronism the king unlawful acts of public officials are not acts of the State and the officer who
can do no wrong.[107] The effort failed. acts illegally is not acting as such but stands in the same footing as any other
The 1973 Constitution ceased to exist when President Marcos was ousted trespasser.[114]Indeed, a critical reading of current literature on executive
from office by the People Power revolution in 1986. When the 1987 immunity will reveal a judicial disinclination to expand the
Constitution was crafted, its framers did not reenact the executive immunity privilege especially when it impedes the search for truth or impairs the
provision of the 1973 Constitution. The following explanation was given by vindication of a right.In the 1974 case of US v. Nixon,[115] US President
delegate J. Bernas, viz:[108] Richard Nixon, a sitting President, was subpoenaed to produce certain
Mr. Suarez. Thank you. recordings and documents relating to his conversations with aids and
The last question is with reference to the committees omitting in the draft advisers. Seven advisers of President Nixons associates were facing charges
proposal the immunity provision for the President. I agree with of conspiracy to obstruct justice and other offenses which were committed in
Commissioner Nolledo that the Committee did very well in striking out this a burglary of the Democratic National Headquarters in Washingtons
second sentence, at the very least, of the original provision on immunity Watergate Hotel during the 1972 presidential campaign. President Nixon
from suit under the 1973 Constitution. But would the Committee members himself was named an unindicted co-conspirator. President Nixon moved to
not agree to a restoration of at least the first sentence that the President quash the subpoena on the ground, among others, that the President was
shall be immune from suit during his tenure, considering that if we do not not subject to judicial process and that he should first be impeached and
provide him that kind of an immunity, he might be spending all his time removed from office before he could be made amenable to judicial
facing litigations, as the President-in-exile in Hawaii is now facing litigations proceedings. The claim was rejected by the US Supreme Court. It concluded
almost daily? that when the ground for asserting privilege as to subpoenaed materials
Fr. Bernas. The reason for the omission is that we consider it understood in sought for use in a criminal trial is based only on the generalized interest in
present jurisprudence that during his tenure he is immune from suit. confidentiality, it cannot prevail over the fundamental demands of due
Mr. Suarez. So there is no need to express it here. process of law in the fair administration of criminal justice. In the 1982 case
Fr. Bernas. There is no need. It was that way before. The only innovation of Nixon v. Fitzgerald,[116] the US Supreme Court further held that the
made by the 1973 Constitution was to make that explicit and to add other immunity of the President from civil damages covers only official
things. acts. Recently, the US Supreme Court had the occasion to reiterate this
Mr. Suarez. On that understanding, I will not press for any more query, doctrine in the case of Clinton v. Jones[117] where it held that the US
Madam President. Presidents immunity from suits for money damages arising out of their
I thank the Commissioner for the clarification. official acts is inapplicable to unofficial conduct.
We shall now rule on the contentions of petitioner in the light of this There are more reasons not to be sympathetic to appeals to stretch the
history. We reject his argument that he cannot be prosecuted for the reason scope of executive immunity in our jurisdiction. One of the great themes of
that he must first be convicted in the impeachment proceedings. The the 1987 Constitution is that a public office is a public trust.[118] It declared as
impeachment trial of petitioner Estrada was aborted by the walkout of the a state policy that (t)he State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and and trial of his case. The totality of circumstances of the case does not prove
corruption."[119] It ordained that (p)ublic officers and employees must at all that the trial judge acquired a fixed opinion as a result of prejudicial publicity
times be accountable to the people, serve them with utmost responsibility, which is incapable if change even by evidence presented during the
integrity, loyalty, and efficiency, act with patriotism and justice, and lead trial. Appellant has the burden to prove this actual bias and he has not
modest lives.[120] It set the rule that (t)he right of the State to recover discharged the burden.
properties unlawfully acquired by public officials or employees, from them or We expounded further on this doctrine in the subsequent case of Webb vs.
from their nominees or transferees, shall not be barred by prescription, Hon. Raul de Leon, etc.[130] and its companion cases. viz.:
laches or estoppel.[121] It maintained the Sandiganbayan as an anti-graft Again, petitioners raise the effect of prejudicial publicity on their right to due
court.[122] It created the office of the Ombudsman and endowed it with process while undergoing preliminary investigation. We find no procedural
enormous powers, among which is to "(i)nvestigate on its own, or on impediment to its early invocation considering the substantial risk to their
complaint by any person, any act or omission of any public official, employee, liberty while undergoing a preliminary investigation.
office or agency, when such act or omission appears to be illegal, unjust, xxx
improper, or inefficient.[123] The Office of the Ombudsman was also given The democratic settings, media coverage of trials of sensational cases cannot
fiscal autonomy.[124] These constitutional policies will be devalued if we be avoided and oftentimes, its excessiveness has been aggravated by kinetic
sustain petitioners claim that a non-sitting president enjoys immunity from developments in the telecommunications industry. For sure, few cases can
suit for criminal acts committed during his incumbency. match the high volume and high velocity of publicity that attended the
V preliminary investigation of the case at bar. Our daily diet of facts and fiction
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity
about the case continues unabated even today.Commentators still bombard
Petitioner also contends that the respondent Ombudsman should be stopped the public with views not too many of which are sober and sublime. Indeed,
from conducting the investigation of the cases filed against him due to the even the principal actors in the case the NBI, the respondents, their lawyers
barrage of prejudicial publicity on his guilt. He submits that the respondent and their sympathizers have participated in this media blitz. The possibility of
Ombudsman has developed bias and is all set to file the criminal cases in media abuses and their threat to a fair trial notwithstanding, criminal trials
violation of his right to due process. cannot be completely closed to the press and public. Inn the seminal case
There are two (2) principal legal and philosophical schools of thought on how of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
to deal with the rain of unrestrained publicity during the investigation and xxx
trial of high profile cases.[125] The British approach the problem with (a) The historical evidence of the evolution of the criminal trial in Anglo-
the presumption that publicity will prejudice a jury. Thus, English courts American justice demonstrates conclusively that the time this Nations
readily stay and stop criminal trials when the right of an accused to fair trial organic laws were adopted, criminal trials both here and in England had long
suffers a threat.[126] The American approach is different. US courts assume been presumptively open, thus giving assurance that the proceedings were
a skeptical approach about the potential effect of pervasive publicity on the conducted fairly to all concerned and discouraging perjury, the misconduct of
right of an accused to a fair trial. They have developed different strains of participants, or decisions based on secret bias or partiality. In addition, the
tests to resolve this issue, i.e.,substantial probability of irreparable harm, significant community therapeutic value of public trials was recognized:
strong likelihood, clear and present danger, etc. when a shocking crime occurs, a community reaction of outrage and public
This is not the first time the issue of trial by publicity has been raised in this protest often follows, and thereafter the open processes of justice serve an
Court to stop the trials or annul convictions in high profile criminal important prophylactic purpose, providing an outlet for community concern,
cases.[127] In People vs. Teehankee, Jr.,[128] later reiterated in the case hostility, and emotion. To work effectively, it is important that societys
of Larranaga vs. Court of Appeals, et al.,[129] we laid down the doctrine that: criminal process satisfy the appearance of justice, Offutt v. United States, 348
We cannot sustain appellants claim that he was denied the right to impartial US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing
trial due to prejudicial publicity. It is true that the print and broadcast media people to observe such process. From this unbroken, uncontradicted history,
gave the case at bar pervasive publicity, just like all high profile and high supported by reasons as valid today as in centuries past, it must be
stake criminal trials. Then and now, we now rule that the right of an accused concluded that a presumption of openness inheres in the very nature of a
to a fair trial is not incompatible to a free press. To be sure, responsible criminal trial under this Nations system of justice, Cf., e.g., Levine v. United
reporting enhances an accuseds right to a fair trial for, as well pointed out, a States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
responsible press has always been regarded as the handmaiden of effective (b) The freedoms of speech, press, and assembly, expressly guaranteed by
judicial administration, especially in the criminal field x x x. The press does the First Amendment, share a common core purpose of assuring freedom of
not simply publish information about trials but guards against the communication on matters relating to the functioning of government. In
miscarriage of justice by subjecting the police, prosecutors, and judicial guaranteeing freedoms such as those of speech and press, the First
processes to extensive public scrutiny and criticism. Amendment can be read as protecting the right of everyone to attend trials
Pervasive publicity is not per se prejudicial to the right of an accused to fair so as give meaning to those explicit guarantees; the First Amendment right
trial. The mere fact that the trial of appellant was given a day-to-day, gavel- to receive information and ideas means, in the context of trials, that the
to-gavel coverage does not by itself prove that the publicity so permeated guarantees of speech and press, standing alone, prohibit government from
the mind of the trial judge and impaired his impartiality. For one, it is summarily closing courtroom doors which had long been open to the public
impossible to seal the minds of members of the bench from pre-trial and at the time the First Amendment was adopted. Moreover, the right of
other off-court publicity of sensational criminal cases. The state of the art of assembly is also relevant, having been regarded not only as an independent
our communication system brings news as they happen straight to our right but also as a catalyst to augment the free exercise of the other First
breakfast tables and right to our bedrooms. These news form part of our Amendment rights with which it was deliberately linked by the draftsmen. A
everyday menu of the facts and fictions of life. For another, our idea of a fair trial courtroom is a public place where the people generally and
and impartial judge is not that of a hermit who is out of touch with the representatives of the media have a right to be present, and where their
world. We have not installed the jury system whose members are overly presence historically has been thought to enhance the integrity and quality
protected from publicity lest they lose their impartiality. x x xx x x x x x. Our of what takes place.
judges are learned in the law and trained to disregard off-court evidence and (c) Even though the Constitution contains no provision which by its terms
on-camera performances of parties to a litigation. Their mere exposure to guarantees to the public the right to attend criminal trials, various
publications and publicity stunts does not per sefatally infect their fundamental rights, not expressly guaranteed, have been recognized as
impartiality. indispensable to the enjoyment of enumerated rights. The right to attend
At best, appellant can only conjure possibility of prejudice on the part of the criminal trial is implicit in the guarantees of the First Amendment: without
trial judge due to the barrage of publicity that characterized the investigation the freedom to attend such trials, which people have exercised for centuries,
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this important aspects of freedom of speech and of the press could be
standard of possibility of prejudice and adopted the test of actual eviscerated.
prejudice as we ruled that to warrant a finding of prejudicial publicity, there Be that as it may, we recognize that pervasive and prejudicial publicity under
must be allegation and proof that the judges have been unduly influenced, certain circumstances can deprive an accused of his due process right to fair
not simply that they might be, by the barrage of publicity. In the case at bar, trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a
the records do not show that the trial judge developed actual bias against finding of prejudicial publicity there must be allegation and proof that the
appellant as a consequence of the extensive media coverage of the pre-trial judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the records that best form of government, it is because it has respected the right of the
will prove that the tone and content of the publicity that attended the minority to convince the majority that it is wrong. Tolerance of multiformity
investigation of petitioners fatally infected the fairness and impartiality of of thoughts, however offensive they may be, is the key to mans progress
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of from the cave to civilization. Let us not throw away that key just to pander to
publicity on the sense of fairness of the DOJ Panel, for these are basically some peoples prejudice.
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the
an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long respondent Gloria Macapagal-Arroyo as the de jure 14th President of the
experience in criminal investigation is a factor to consider in determining Republic are DISMISSED.
whether they can easily be blinded by the klieg lights of publicity. Indeed, SO ORDERED.
their 26-page Resolution carries no indubitable indicia of bias for it does not EN BANC
appear that they considered any extra-record evidence except evidence [G.R. Nos. 146710-15. April 3, 2001]
properly adduced by the parties. The length of time the investigation was JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as
conducted despite its summary nature and the generosity with which they Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
accommodated the discovery motions of petitioners speak well of their CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE
fairness. At no instance, we note, did petitioners seek the disqualification of VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
any member of the DOJ Panel on the ground of bias resulting from their JR., respondents.
bombardment of prejudicial publicity. (emphasis supplied) [G.R. No. 146738. April 3, 2001]
Applying the above ruling, we hold that there is not enough JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-
evidence to warrant this Court to enjoin the preliminary investigation of ARROYO, respondent.
the petitioner by the respondent Ombudsman. Petitioner needs to offer RESOLUTION
more than hostile headlines to discharge his burden of proof.[131] He needs to PUNO, J.:
show more weighty social science evidence to successfully prove the For resolution are petitioners Motion for Reconsideration in G.R. Nos.
impaired capacity of a judge to render a bias-free decision. Well to note, the 146710-15 and Omnibus Motion in G.R. No. 146738 of the Courts Decision of
cases against the petitioner are still undergoing preliminary investigation by March 2, 2001.
a special panel of prosecutors in the office of the respondent Ombudsman. In G.R. Nos. 146710-15, petitioner raises the following grounds:
No allegation whatsoever has been made by the petitioner that the minds of I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI,
the members of this special panel have already been infected by bias SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE
because of the pervasive prejudicial publicity against him. Indeed, the special THEREON.
panel has yet to come out with its findings and the Court cannot second II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING
guess whether its recommendation will be unfavorable to the petitioner. WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION,
The records show that petitioner has instead charged respondent CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT
Ombudsman himself with bias. To quote petitioners submission, the PROCEEDINGS.
respondent Ombudsman has been influenced by the barrage of slanted news III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE
reports, and he has buckled to the threats and pressures directed at him by IMMUNITY FROM SUIT.
the mobs.[132] News reports have also been quoted to establish that the IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE
respondent Ombudsman has already prejudged the cases of the NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
petitioner[133]and it is postulated that the prosecutors investigating the V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT
petitioner will be influenced by this bias of their superior. TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT
Again, we hold that the evidence proffered by the petitioner OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED
is insubstantial. The accuracy of the news reports referred to by the CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.
petitioner cannot be the subject of judicial notice by this Court especially in In G.R. No. 146738, petitioner raises and argues the following issues:
light of the denials of the respondent Ombudsman as to his alleged prejudice 1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED
and the presumption of good faith and regularity in the performance of AS OF JANUARY 20, 2001;
official duty to which he is entitled. Nor can we adopt the theory of 2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF
derivative prejudice of petitioner, i.e., that the prejudice of respondent THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE,
Ombudsman flows to his subordinates. In truth, our Revised Rules of AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;
Criminal Procedure, give investigating prosecutors the independence to 3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE
make their own findings and recommendations albeit they are reviewable by HEARSAY RULE;
their superiors.[134] They can be reversed but they can not be compelled to 4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO
change their recommendations nor can they be compelled to prosecute GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and
cases which they believe deserve dismissal. In other words, investigating 5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO
prosecutors should not be treated like unthinking slot machines. Moreover, if FAIR TRIAL.
the respondent Ombudsman resolves to file the cases against the petitioner We find the contentions of petitioner bereft of merit.
and the latter believes that the finding of probable cause against him is the I
result of bias, he still has the remedy of assailing it before the proper court. Prejudicial Publicity on the Court

VI. Petitioner insists he is the victim of prejudicial publicity. Among others, he

Epilogue assails the Decision for adverting to newspaper accounts of the events and
A word of caution to the hooting throng. The cases against the petitioner will occurrences to reach the conclusion that he has resigned. In our Decision, we
now acquire a different dimension and then move to a new stage - - - the used the totality test to arrive at the conclusion that petitioner has
Office of the Ombudsman. Predictably, the call from the majority for instant resigned. We referred to and analyzed events that were prior,
justice will hit a higher decibel while the gnashing of teeth of the minority contemporaneous and posterior to the oath-taking of respondent Arroyo as
will be more threatening. It is the sacred duty of the respondent president. All these events are facts which are well-established and cannot
Ombudsman to balance the right of the State to prosecute the guilty and the be refuted. Thus, we adverted to prior events that built up the irresistible
right of an accused to a fair investigation and trial which has been pressure for the petitioner to resign. These are: (1) the expose of Governor
categorized as the most fundamental of all freedoms.[135] To be sure, the duty Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of then
of a prosecutor is more to do justice and less to prosecute. His is the Senator Teofisto Guingona in the Senate; (3) the joint investigation of the
obligation to insure that the preliminary investigation of the petitioner shall speech of Senator Guingona by the Blue Ribbon Committee and the
have a circus-free atmosphere. He has to provide the restraint against what Committee on Justice; (4) the investigation of the Singson expose by the
Lord Bryce calls the impatient vehemence of the majority. Rights in a House Committee on Public Order and Security; (5) the move to impeach the
democracy are not decided by the mob whose judgment is dictated by rage petitioner in the House of Representatives; (6) the Pastoral Letter of
and not by reason. Nor are rights necessarily resolved by the power of Archbishop Jaime Cardinal Sin demanding petitioners resignation; (7) a
number for in a democracy, the dogmatism of the majority is not and should similar demand by the Catholic Bishops conference; (8) the similar demands
never be the definition of the rule of law. If democracy has proved to be the for petitioners resignation by former Presidents Corazon C. Aquino and Fidel
V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD test, the assessment whether real alternatives were offered must be gauged
and her call for petitioner to resign; (10) the resignation of the members of by an objective standard rather than by the employees purely subjective
petitioners Council of Senior Economic Advisers and of Secretary Mar Roxas evaluation; that the employee may perceive his or her only option to be
III from the Department of Trade and Industry; (11) the defection of then resignation for example, because of concerns about his or her reputation is
Senate President Franklin Drilon and then Speaker of the House of irrelevant. Similarly, the mere fact that the choice is between comparably
Representatives Manuel Villar and forty seven (47) representatives from unpleasant alternatives for example, resignation or facing disciplinary
petitioners Lapiang Masang Pilipino; (12) the transmission of the Articles of charges does not of itself establish that a resignation was induced by duress
Impeachment by Speaker Villar to the Senate; (13) the unseating of Senator or coercion, and was therefore involuntary. This is so even where the only
Drilon as Senate President and of Representative Villar as Speaker of the alternative to resignation is facing possible termination for cause, unless the
House; (14) the impeachment trial of the petitioner; (15) the testimonies of employer actually lacked good cause to believe that grounds for termination
Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the existed. In this regard it has also been said that a resignation resulting from a
impeachment trial; (16) the 11-10 vote of the senator-judges denying the choice between resigning or facing proceedings for dismissal is not
prosecutors motion to open the 2nd envelope which allegedly contained tantamount to discharge by coercion without procedural view if the
evidence showing that petitioner held a P3.3 billion deposit in a secret bank employee is given sufficient time and opportunity for deliberation of the
account under the name of Jose Velarde; (17) the prosecutors walkout and choice posed. Futhermore, a resignation by an officer charged with
resignation; (18) the indefinite postponement of the impeachment misconduct is not given under duress, though the appropriate authority has
proceedings to give a chance to the House of Representatives to resolve the already determined that the officers alternative is termination, where such
issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine and authority has the legal authority to terminate the officers employment under
its intensification in various parts of the country; (20) the withdrawal of the particular circumstances, since it is not duress to threaten to do what
support of then Secretary of National Defense Orlando Mercado and the one has the legal right to do, or to threaten to take any measure authorized
then Chief of Staff, General Angelo Reyes, together with the chiefs of all the by law and the circumstances of the case.[2]
armed services; (21) the same withdrawal of support made by the then In the cases at bar, petitioner had several options available to him other
Director General of the PNP, General Panfilo Lacson, and the major service than resignation. He proposed to the holding of snap elections. He
commanders; (22) the stream of resignations by Cabinet secretaries, transmitted to the Congress a written declaration of temporary inability.He
undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners could not claim he was forced to resign because immediately before he left
agreement to hold a snap election and opening of the controversial second Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which implies
envelope. All these prior events are facts which are within judicial notice by that he still had a choice of whether or not to leave.
this Court. There was no need to cite their news accounts. The reference by To be sure, pressure was exerted for the petitioner to resign. But it is
the Court to certain newspapers reporting them as they happened does not difficult to believe that the pressure completely vitiated the voluntariness
make them inadmissible evidence for being hearsay. The news account of the petitioners resignation. The Malacaang ground was then fully
only buttressed these facts as facts. For all his loud protestations, protected by the Presidential Security Guard armed with tanks and high-
petitioner has not singled out any of these facts as false. powered weapons. The then Chief of Staff, General Angelo Reyes, and other
We now come to some events of January 20, 2001 contemporaneous to the military officers were in Malacaang to assure that no harm would befall the
oath taking of respondent Arroyo. We used the Angara Diary to decipher the petitioner as he left the Palace. Indeed, no harm, not even a scratch, was
intent to resign on the part of the petitioner. Let it be emphasized that it is suffered by the petitioner, the members of his family and his Cabinet who
not unusual for courts to distill a persons subjective intent from the evidence stuck it out with him in his last hours. Petitioners entourage was even able to
before them. Everyday, courts ascertain intent in criminal cases, in civil law detour safely to the Municipal Hall of San Juan and bade goodbye to his
cases involving last wills and testaments, in commercial cases involving followers before finally going to his residence in Polk Street, Greenhills. The
contracts and in other similar cases. As will be discussed below, the use of only incident before the petitioner left the Palace was the stone throwing
the Angara Diary is not prohibited by the hearsay rule. Petitioner may between a small group of pro and anti Erap rallyists which resulted in minor
disagree with some of the inferences arrived at by the Court from the facts injuries to a few of them. Certainly, there were no tanks that rumbled
narrated in the Diary but that does not make the Diary inadmissible as through the Palace, no attack planes that flew over the presidential
evidence. residence, no shooting, no large scale violence, except verbal violence, to
We did not stop with the contemporaneous events but proceeded to justify the conclusion that petitioner was coerced to resign.
examine some events posterior to the oath-taking of respondent II
Evidentiary Issues
Arroyo. Specifically, we analyzed the all important press release of the
petitioner containing his final statement which was issued after the oath- Petitioner devotes a large part of his arguments on the alleged improper use
taking of respondent Arroyo as president. After analyzing its content, we by this Court of the Angara Diary. It is urged that the use of the Angara
ruled that petitioners issuance of the press release and his abandonemnt of Diary to determine the state of mind of the petitioner on the issue of his
Malacaang Palace confirmed his resignation.[1] These are overt acts which resignation violates the rule against the admission of hearsay evidence.
leave no doubt to the Court that the petitioner has resigned. We are unpersuaded. To begin with, the Angara diary is not an out of court
In light of this finding that petitioner has resigned before 12 oclock noon of statement. The Angara Diary is part of the pleadings in the cases at
Janaury 20, 2001, the claim that the office of the President was not vacant bar. Petitioner cannot complain he was not furnished a copy of the Angara
when respondent Arroyo took her oath of office at half past noon of the Diary. Nor can he feign surprise on its use. To be sure, the said Diary was
same day has no leg to stand on. frequently referred to by the parties in their pleadings.[3] The three parts of
We also reject the contention that petitioners resignation was due the Diary published in the PDI from February 4-6, 2001 were attached as
to duress and an involuntary resignation is no resignation at all. Annexes A-C, respectively, of the Memorandum of private respondents
x x x [I]t has been said that, in determining whether a given resignation is Romeo T. Capulong, et al., dated February 20, 2001. The second and third
voluntarily tendered, the element of voluntariness is vitiated only when the parts of the Diary were earlier also attached as Annexes 12 and 13 of the
resignation is submitted under duress brought on by government Comment of private respondents Capulong, et al., dated February 12,
action. The three-part test for such duress has been stated as involving the 2001. In fact, petitioner even cited in his Second Supplemental Reply
following elements: (1) whether one side involuntarily accepted the others Memorandum both the second part of the diary, published on February 5,
terms; (2) whether circumstances permitted no other alternative; and (3) 2001,[4] and the third part, published on February 6, 2001.[5] It was also
whether such circumstances were the result of coercive acts of the opposite extensively used by Secretary of Justice Hernando Perez in his oral
side. The view has also been expressed that a resignation may be found arguments. Thus, petitioner had all the opportunity to contest the use of the
involuntary if on the totality of the circumstances it appears that the Diary but unfortunately failed to do so.
employers conduct in requesting resignation effectively deprived the Even assuming arguendo that the Angara Diary was an out of court
employer of free choice in the matter. Factors to be considered, under this statement, still its use is not covered bythe hearsay rule.[6] Evidence is called
test, are: (1) whether the employee was given some alternative to hearsay when its probative force depends, in whole or in part, on the
resignation; (2) whether the employee understood the nature of the choice competency and credibility of some persons other than the witness by whom
he or she was given; (3) whether the employewe was given a reasonable it is sought to produce it.[7] There are three reasons for excluding hearsay
time in which to choose; and (4) whether he or she was permitted to select evidence: (1) absence of cross examination; (2) absence of demeanor
the effective date of resignation. In applying this totality of the circumstances evidence, and (3) absence of the oath.[8] Not at all hearsay evidence,
however, is inadmissible as evidence. Over the years, a huge body of hearsay Allen, Commentary on Professor Friendmans Article: The Evolution of the
evidence has been admitted by courts due to their relevance, Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but
trustworthiness and necessity.[9] The emergence of these exceptions and would abolish rule only in civil cases). See also Friedman, Toward a Partial
their wide spread acceptance is well-explained by Weinstein, Mansfield, Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723
Abrams and Berger as follows: (1992).[10]
xxx A complete analysis of any hearsay problem requires that we further
On the other hand, we all make decisions in our everyday lives on the basis determine whether the hearsay evidence is one exempted from the rules of
of other persons accounts of what happened, and verdicts are usually exclusion. A more circumspect examination of our rules of exclusion will
sustained and affirmed even if they are based on hearsay erroneously show that they do not cover admissions of a party and the Angara Diary
admitted, or admitted because no objection was made. See Shepp v. belongs to this class. Section 26 of Rule 130 provides that the act,
Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can declaration or omission of a party as to a relevant fact may be given in
support a verdict). Although volumes have been written suggesting ways to evidence against him.[11] It has long been settled that these admissions are
revise the hearsay rule, no one advocates a rule that would bar all hearsay admissible even if they are hearsay. Retired Justice Oscar Herrera of the
evidence. Indeed, the decided historical trend has been to exclude Court of Appeals cites the various authorities who explain why admissions
categories of highly probative statements from the definition of hearsay are not covered by the hearsay rule:[12]
(sections 2 and 3, infra), and to develop more class exceptions to the Wigmore, after pointing out that the partys declaration has generally the
hearsay rule (sections 4-11, infra). Furthermore, many states have added to probative value of any other persons asssertion, argued that it had a special
their rules the residual, or catch-all, exceptions first pioneered by the value when offered against the party. In that circumstance, the admission
Federal Rules which authorize the admission of hearsay that does not discredits the partys statement with the present claim asserted in pleadings
satisfy a class exception, provided it is adequately trustworthy and and testimony, much like a witness impeached by contradictory
probative (section 12, infra). statements. Moreover, he continued, admissions pass the gauntlet of the
Moreover, some commentators believe that the hearsay rule should be hearsay rule, which requires that extrajudicial assertions be excluded if there
abolished altogether instead of being loosened. See, e.g., Note, The was no opportunity for the opponent to cross-examine because it is the
Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804- opponents own declaration, and he does not need to cross examine
1805, 1815 (1980) (footnotes omitted): himself. Wigmore then added that the Hearsay Rule is satisfied since the
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may party now as opponent has the full opportunity to put himself on the stand
be excluded if its probative value is substantially outweighed by the danger and explain his former assertion. (Wigmore on evidence, Sec. 1048
of unfair prejudice. Under this structure, exclusion is justified by fears of how (Chadbourn Rev. 1972), cited in Sec. 154, McCormick)
the jury will be influenced by the evidence. However, it is not traditional to According to Morgan: The admissibility of an admission made by the party
think of hearsay as merely a subdivision of this structure, and the Federal himself rests not upon any notion that the circumstances in which it was
Rules do not conceive of hearsay in that manner.Prejudice refers to the jurys made furnish the trier means of evaluating it fairly, but upon the adversary
use of evidence for inferences other than those for which the evidence is theory of litigation. A party can hardly object that he had no opportunity to
legally relevant; by contrast, the rule against hearsay questions the jurys cross-examine himself or that he is unworthy of credence save when
ability to evaluate the strength of a legitimateinference to be drawn from the speaking under sanction of an oath.
evidence. For example, were a judge to exclude testimony because a witness A mans acts, conduct, and declaration, wherever made, if voluntary, are
was particularly smooth or convincing, there would be no doubt as to the admissible against him, for the reason that it is fair to presume that they
usurpation of the jurys function.Thus, unlike prejudices recognized by the correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po,
evidence rules, such as those stemming from racial or religious biases or 23 Phil. 578, 583).
from the introduction of photographs of a victims final state, the exclusion of The Angara Diary contains direct statements of petitioner which can be
hearsay on the basis of misperception strikes at the root of the jurys function categorized as admissions of a party: his proposal for a snap presidential
by usurping its power to process quite ordinary evidence, the type of election w