EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents. DECISION KAPUNAN, J.: At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the “Marines”) to join the Philippine National Police (the “PNP”) in visibility patrols around the metropolis. In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the “AFP”), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the “LOI”) which detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted. [2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In the Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime prevention program including increased police patrols.[4] The President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary. [5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence.[6]Finally, the President declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved.[7] The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: xxx 2. PURPOSE: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security. 3. SITUATION: Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel.

4. MISSION: The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crimefree, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel. 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP. b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPOPhilippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality. c. To ensure the effective implementation of this project, a provisional Task Force “TULUNGAN” shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation. xxx.[8]

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9] On 17 January 2000, the Integrated Bar of the Philippines (the “IBP”) filed the instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that: I THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT: A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION; C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT. II IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10] Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the

Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement. Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines, contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution. The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the President’s factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP. The petition has no merit. First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable

and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis motaof the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case. “Legal standing” or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[13] The term “interest” means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.[14] The gist of the question of standing is whether a party alleges “such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.”[15] In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the

It will stare us in the face again. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment of the Marines. whom the IBP purportedly represents.[17] Thus. As framed by the parties. does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. because peace and order are under constant threat and lawless violence occurs in increasing tempo. Article VII of the Constitution. To be sure. the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. while the parties are in agreement that the power exercised by the President is the power to call out the armed forces. is his alone. It contends that no lawless violence. is the basis for the calling of the Marines under the aforestated provision. the Court is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the . The IBP must. absent a formal board resolution authorizing him to file the present action. In this regard. The President did not commit grave abuse of discretion in calling out the Marines. the legal controversy raised in the petition almost certainly will not go away. But. Not only is the presumed “injury” not personal in character. the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section 18. it does not possess the personality to assail the validity of the deployment of the Marines. when the issues raised are of paramount importance to the public. It should also be noted that the interest of the National President of the IBP who signed the petition. Thus. assuming that it has duly authorized the National President to file the petition. and the extent of judicial review. [18] In this case. the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. while this Court gives considerable weight to the parties’ formulation of the issues. contends that the issue pertaining to the necessity of calling the armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are beyond the review powers of this Court. highly speculative and uncertain to satisfy the requirement of standing. members of the BAR. invasion or rebellion. by way of allegations and proof. Since petitioner has not successfully established a direct and personal injury as a consequence of the questioned act. the bone of contention concerns the factual determination of the President of the necessity of calling the armed forces. Thus. and cannot be affected by the deployment of the Marines. have varying opinions on the issue. This Court. the IBP. the Court may brush aside technicalities of procedure. it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. none of its members. novelty and weight as precedents. satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy. What the IBP questions. the power to call out the armed forces to prevent or suppress lawless violence. on the other hand. rather than later. has not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Moreover. specifically.standards of the law profession and to improve the administration of justice is alien to. has sustained any form of injury as a result of the operation of the joint visibility patrols. the underlying issues are the scope of presidential powers and limits. In the case at bar. however. however. a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness. Indeed. no emergency exists that would justify the need for the calling of the military to assist the police force. it is likewise too vague. invasion or rebellion exist to warrant the calling of the Marines. those in the judiciary included. Having stated the foregoing. particularly the Marines. undoubtedly aggravated by the Mindanao insurgency problem. Moreover. the IBP prays that this Court “review the sufficiency of the factual basis for said troop [Marine] deployment. therefore. According to the IBP.[16] In not a few cases. behooves the Court to relax the rules on standing and to resolve the issue now. It. What the IBP projects as injurious is the supposed “militarization” of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long run. to aid the PNP in visibility patrols.”[19] The Solicitor General.

[Rossiter. As a general proposition. under the Constitution. in order to keep the peace. not justiciable. the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. or suspending the privilege of the writ of habeas corpus or declaring martial law. invasion or rebellion. Nevertheless. xxx[21] Nonetheless. Wide discretion. this case calls for the exercise of the President’s powers as protector of the peace.general welfare. in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. the realities on the ground do not show that there exist a state of warfare. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces. Moreover. political questions refer “to those questions which. the full brunt of the military is not brought upon the citizenry.” The reason is that political questions are concerned with issues dependent upon the wisdom. within the bounds of law. or the potentiality of embarassment from multifarious pronouncements by various departments on the one question.[20] For one. We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the judiciary because it involves a political question. a controversy is justiciable if it refers to a matter which is appropriate for court review. or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government. the resolution of the controversy will reach a similar result. the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for resolution.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Cuenco[23] puts it. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. of a particular act or measure being assailed. widespread civil unrest or anarchy. The President is not only clothed with extraordinary powers in times of emergency. or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon.” Thus. the political question being a function of the separation of powers. if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be a political question.”[25] Under this definition. and thus. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. In the classic formulation of Justice Brennan in Baker v. or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. a point discussed in the latter part of this decision. even if it is conceded that the power involved is the President’s power to call out the armed forces to prevent or suppress lawless violence. The American Presidency]. Manglapus: More particularly. Secondly. As Tañada v. In the words of the late Justice Irene Cortes in Marcos v. One class of cases wherein the Court hesitates to rule on are “political questions. are to be decided by the people in their sovereign capacity. and maintain public order and security. Carr.[24] “[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department. or a lack of judicially discoverable and manageable standards for resolving it. or an unusual need for unquestioning adherence to a political decision already made.” The 1987 Constitution expands the concept of judicial review by providing that “(T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. not the legality. the Court cannot agree with the Solicitor General that the issue involved is a political question .

[27] When political questions are involved. In the performance of this Court’s duty of “purposeful hesitation”[32] before declaring an act of another branch as unconstitutional.beyond the jurisdiction of this Court to review. But while this Court has no power to substitute its judgment for that of Congress or of the President. Article VII which reads.[31] When the President calls the armed forces to prevent or suppress lawless violence. conditional or subject to limitations.the problem being one of legality or validity. In case of invasion or rebellion. Section 18. likewise. by a vote of at least a majority of all its Members in regular or special session. thus: xxx Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. for a period not exceeding sixty days. the Congress may. may revoke such proclamation or suspension. The Congress. When the grant of power is qualified. is justiciable . not its wisdom. he may. Article VII of the Constitution. the President shall submit a report in person or in writing to the Congress. voting jointly. There is. However. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces. the jurisdiction to delimit constitutional boundaries has been given to this Court. a court is without power to directly decide matters over which full discretionary authority has been delegated. in the same manner. xxx The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18. no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military.[26] Moreover. it may look into the question of whether such exercise has been made in grave abuse of discretion. this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. only where such grave abuse of discretion is clearly shown shall the Court interfere with the President’s judgment. or place the Philippines or any part thereof under martial law. it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.[30] A showing that plenary power is granted either department of government. The Court. or to act at all in contemplation of law. thus. There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. the issue of whether the prescribed qualifications or conditions have been met or the limitations respected.[29] Under this definition. the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. To doubt is to sustain. suspend the privilege of the writ of habeas corpus. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces. when the public safety requires it. invasion or rebellion. cannot be called upon to overrule the President’s wisdom or substitute its own. which revocation shall not be set aside by the President. he may call out such armed forces to prevent or suppress lawless violence.[28] By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. invasion or rebellion. provides in part: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary. This is clear from the intent of the framers and from the text of the Constitution itself. as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. Upon the initiative of the President. for the improvident exercise or abuse thereof may give rise to justiciable controversy. extend such proclamation or . which embodies the powers of the President as Commander-in-Chief. may not be an obstacle to judicial inquiry. he necessarily exercises a discretionary power solely vested in his wisdom.

the matter can be handled by the first sentence: “The President may call out such armed forces to prevent or suppress lawless violence. However. DE LOS REYES.suspension for a period to be determined by the Congress. instead of imposing martial law or suspending the writ of habeas corpus. to wit: FR. is extant in the deliberation of the Constitutional Commission. of invasion or rebellion. 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. by interpretation or construction. if the invasion or rebellion shall persist and public safety requires it. During the suspension of the privilege of the writ.. then he can suspend the privilege of the writ of habeas corpus. nor supplant the functioning of the civil courts or legislative assemblies. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. It will not make any difference.. that the power to call is fully discretionary to the President. I may add that there is a graduated power of the President as Commander-in-Chief. i.” So we feel that that is sufficient for handling imminent danger. the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. The Congress. convene in accordance with its rules without need of a call. xxx FR. nor automatically suspend the privilege of the writ. So actually. if a President feels that there is imminent danger. and must promulgate its decision thereon within thirty days from its filing. any person thus arrested or detained shall be judicially charged within three days..[34] . Is that the idea? MR. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus. BERNAS.may call out such Armed Forces to prevent or suppress lawless violence. it may not. it is my opinion that his judgment cannot be reviewed by anybody. This is a graduated sequence. BERNAS. Let me just add that when we only have imminent danger. The Supreme Court may review. Where the terms are expressly limited to certain matters. REGALADO. invasion or rebellion. MR. if not in session. the matter can be handled by the First Sentence: “The President. First. otherwise he shall be released.[33] That the intent of the Constitution is exactly what its letter says. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. there is no such equivalent provision dealing with the revocation or review of the President’s action to call out the armed forces. invasion or rebellion.” So we feel that that is sufficient for handling imminent danger. his judgment is subject to review. That does not require any concurrence by the legislature nor is it subject to judicial review. Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. Expressio unius est exclusio alterius. otherwise. be extended to other matters. when he says it is necessary. Under the foregoing provisions. then he can impose martial law. A state of martial law does not suspend the operation of the Constitution. he can call out such Armed Forces as may be necessary to suppress lawless violence. in an appropriate proceeding filed by any citizen.. But when he exercises this lesser power of calling on the Armed Forces.e. When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus. shall within twenty-four hours following such proclamation or suspension. nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function.

and other public places. If the petitioner fails. then this Court cannot undertake an independent investigation beyond the pleadings. Thus.”[35] We do not doubt the veracity of the President’s assessment of the situation. In the exercise of the power to call. The only criterion is that “whenever it becomes necessary." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. invasion or rebellion. full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence. Certain pertinent information might be difficult to verify. Article VII of the Constitution. on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms. it is the unclouded intent of the Constitution to vest upon the President. Besides the absence of textual standards that the court may use to judge necessity. as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. These are among the areas of deployment described in the LOI 2000. the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Unless the petitioner can show that the exercise of such discretion was gravely abused. some of which may be classified as highly confidential or affecting the security of the state. kidnappings and carnappings continue to occur in Metro Manila. the President’s exercise of judgment deserves to be accorded respect from this Court. . Indeed. the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. or wholly unavailable to the courts. information necessary to arrive at such judgment might also prove unmanageable for the courts. The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum. under Section 18. especially in the light of present developments. Considering all these facts. public utilities. and thus necessitating safeguards by Congress and review by this Court. Moreover.. where the insurgency problem could spill over the other parts of the country. by way of proof. in the exercise of the power to suspend the privilege of the writ of habeas corpusor to impose martial law. (2) public safety must require it. to support the assertion that the President acted without factual basis. as Commander-in-Chief of the Armed Forces. two conditions must concur: (1) there must be an actual invasion or rebellion and.” the President may call the armed forces “to prevent or suppress lawless violence. These conditions are not required in the case of the power to call out the armed forces.The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law. invasion or rebellion. we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power. “[V]iolent crimes like bank/store robberies.. On the other hand. Such a scenario is not farfetched when we consider the present situation in Mindanao. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls. the President as Commander-in-Chief has a vast intelligence network to gather information. holdups. he categorically asserted that. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster. The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force. In many instances.

[44] 4.[53] 13. Conservation of natural resources. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement.[37] Under the LOI. We disagree. which sufficiently provides the metes and bounds of the Marines’ authority. by his alleged involvement in civilian law enforcement. the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times.[40] In view of the foregoing. it cannot be properly argued that military authority is supreme over civilian authority. some of the multifarious activities wherein military aid has been rendered. the police forces are tasked to brief or orient the soldiers on police patrol procedures. there can be no appointment to civilian position to speak of. the IBP asserts that by the deployment of the Marines. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally “civil” functions. Such being the case. it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Elections. as stated in the LOI. the PNP. the Marines render nothing more than assistance required in conducting the patrols. As correctly pointed out by the Solicitor General.[48] 8. Conduct of nationwide tests for elementary and high school students. Hence. the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP. Amateur sports promotion and development. The real authority in these operations. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. Relief and rescue operations during calamities and disasters. Article XVI of the Constitution. Implementation of the agrarian reform program. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. As such.[49] 9. likewise.[52] 12.[54] 14.[51] 11. Enforcement of customs laws. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. Neither does it amount to an “insidious incursion” of the military in the task of law enforcement in violation of Section 5(4).[41] In this regard. the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Conduct of licensure examinations. Moreover.[45] 5. Article II[36] of the Constitution. In fact. are: 1. their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. is lodged with the head of a civilian institution. Administration of the Civil Aeronautics Board. and not with the military. the civilian task of law enforcement is “militarized” in violation of Section 3. Administration of the Philippine National Red Cross.[43] 3. Conduct of census work. Sanitary inspections. it is not correct to say that General Angelo Reyes.[50] 10. Anti-drug enforcement activities. there can be no “insidious incursion” of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution. the real authority belonging to the PNP.[47] 7. The limited participation of the Marines is evident in the provisions of the LOI itself. [39] It is. Development of the culture and the arts.[38] It is their responsibility to direct and manage the deployment of the Marines. has been virtually appointed to a civilian post in derogation of the aforecited provision. Considering the above circumstances.[55] 15. Composite civilian-military law enforcement activities. Since none of the Marines was incorporated or enlisted as members of the PNP.[42] 2.[56] .[46] 6. Chief of Staff of the AFP.Prescinding from its argument that no emergency situation exists to justify the calling of the Marines. exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation.

even when not expressly authorized by the Constitution or a statute. either presently or prospectively? x x x When this concept is transplanted into the present legal context. 1973.[60] and whose Constitution. where a long tradition of suspicion and hostility towards the use of military force for domestic purposes has persisted. 64 in nature. Under thePosse Comitatus Act[61] of the US. or both. pp.[62] To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel. which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. or compulsory military power. proscriptive.[57] 17. The conclusion is that there being no exercise of regulatory. In No. willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more than $10. these soldiers apply no coercive force. proscriptive. or compulsory[64] George Washington Law Review. long pursued to the knowledge of Congress and. And last. the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those surrounding the present deployment of the Philippine Marines. not derogation of civilian supremacy. all arrested persons are brought to the nearest police stations for proper disposition.16. [71] . does not expressly provide for the power to call. 9(d)[69] of Annex A. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE. also have no power to prohibit or condemn. the soldiers do not control or direct the operation. A provision of the Act states: § 1385. the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement. First. 8(c)[70] of Annex A. are all low impact and defensive in character. forbids or compels some conduct on the part of those claiming relief. unbroken. unlike ours. to wit: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory. 130152. yet. Assistance in installation of weather forecasting devices. proscriptive or compulsory military power. These soldiers. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory.000 or imprisoned not more than two years. the US courts[63] apply the following standards. Use of Army and Air Force as posse comitatus Whoever. the conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution is committed. as shown in No. (emphasis supplied) Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible use of the military in civilian law enforcement. the Court agrees with the observation of the Solicitor General: 3.[59] What we have here is mutual support and cooperation between the military and civilian authorities. The materials or equipment issued to them. 404-433 (1986). In the United States. second. never before questioned. the use of the military in civilian law enforcement is generally prohibited. On this point.[66] 8(k)[67] and 9(a)[68] of Annex A. does not violate the Posse Comitatus Act unless it actually regulates. A mere threat of some future injury would be insufficient.[58] This unquestionably constitutes a gloss on executive power resulting from a systematic. 6. we take it to mean that military involvement. This is evident from Nos. except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. executive practice. pp. except in certain allowable circumstances. 83 Yale Law Journal. Peace and order policy formulation in local government units.

Unless. tranquility and the civil liberties of the people that the joint visibility patrol was conceived. the President has violated the fundamental law. Quisumbing. Davide. If the attempt succeeded.. or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.. Puno.. exceeded his authority or jeopardized the civil liberties of the people. see separate opinion. are unfounded. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. joins the opinion of J. One last point.It appears that the present petition is anchored on fear that once the armed forces are deployed.. Such apprehensions. A laid back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting “xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government. J. J. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the streets. This question confronted the Court as early as 1905 in the case of Barcelon v.calling out the armed forces. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of history. Jr. in the result. and thus place in peril our cherished liberties. Mendoza.3 The exercise of the discretionary power of the legislative or executive branch of government was often the area where the Court had to wrestle with the political question doctrine.J. 2000. Jr. Political questions are defined as “those questions which under the Constitution.: . are to be decided by the people in their sovereign capacity. which it has not. J. that in the deployment of the Marines. premises considered. It was precisely to safeguard peace. not when the shadows of violence and anarchy constantly lurk in their midst. Melo. Baker. J.. Since the institution of the joint visibility patrol in January. Vitug. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-in-chief powers. not a single citizen has complained that his political or civil rights have been violated as a result of the deployment of the Marines. on official leave. Purisima.”1 The importance of the issue at bar includes this humble separate opinion. The power to call the armed forces is just that .. petitioner IBP can show. it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. Panganiban. this Court is not inclined to overrule the President’s determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence. Ynares-Santiago. J. J. concur. Mendoza.5 The Governor-General of the Philippine Islands. GonzagaReyes. JJ. however. J. WHEREFORE.. it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers.. hence. this Court should be extra cautious in assaying similar attempts... pursuant to a resolution of the Philippine Commission. suspended the privilege of SEPARATE OPINION PUNO. Bellosillo. Pardo. see concurring and dissenting opinion. C.”2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government. SO ORDERED. the petition is hereby DISMISSED. and De Leon.4 A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. If the case at bar is significant. with discretionary power to act. Buena. see separate opinion. the military will gain ascendancy.

16 petitioner. Avelino.the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces.14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment to the Constitution.6 Surveying American law and jurisprudence. this power is exclusively within the discretion of the legislative and executive branches of government.10 The seed of the political question doctrine was thus planted in Philippine soil.15 In the 1955 case of Arnault v. to be exercised by him upon his own opinion of certain facts. The exercise of this discretion is conclusive upon the courts. the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership. and was suspended from office for one year. The Court refused to interfere in the legislative exercise of disciplinary power over its own members. the statute constitutes him the sole judge of the existence of those facts. it held that whenever a statute gives discretionary power to any person. returns and qualifications. The amendment was eventually submitted to the people for ratification.8 The Court further held that once a determination is made by the executive and legislative departments that the conditions justifying the assailed acts exists. filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The Court ruled that under our form of government. The Court held that under the Jones Law. the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of Congress to pass the amendment. the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process. was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate. which acts are performed within the discretion of the other department.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus. The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative . one department has no authority to inquire into the acts of another. in contrast with the judicial department. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the GovernorGeneral) branches of government acted in suspending the privilege of the writ.11 Alejandrino.9 It adopted the rationalethat the executive branch. with its very limited machinery. who was detained by constabulary officers in Batangas. it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. In the 1924 case ofAlejandrino v. In the 1947 case of Mabanag v.13 three senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election. Quezon. Again. assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. in Vera v. a private citizen."12 The issue revisited the Court twenty-two (22) years later. it will presume that the conditions continue until the same authority decide that they no longer exist. thru its civil and military branches. If their votes had been counted. While the Court found that the suspension was illegal. are better situated to obtain information about peace and order from every corner of the nation. In 1946. Lopez-Vito. Felix Barcelon. Balagtas. who was appointed Senator by the Governor-General.

Congressman Sergio Osmena. Cuenco. Comelec25 and the 1971 case of Tolentino v. and Macias v.19 On reconsideration. declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfied the three-fourths vote requirement of the fundamental law.22 It held that under the Constitution. by Senators belonging to the party having the largest number of votes in said chamber. as claimed by the latter. Osmena. acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. the Court declared respondent Cuenco as the legally elected Senate President. the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.21 the Court assumed jurisdiction over a dispute involving the formation and composition of the Senate Electoral Tribunal.18 Senate President Jose Avelino. Thus.”27 . Tanada v. questioned his successor's title claiming that the latter had been elected without a quorum. and in the fourth. it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature. In the 1962 case of Cunanan v. in the third. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members.. It rejected the Solicitor General's claim that the dispute involved a political question.23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes. by Suanes v. Tan. advanced in these four cases. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution. however. who was deposed and replaced. The contours of the political question doctrine have always been tricky. Instead. we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. purporting to act on behalf of the party having the second largest number of votes therein. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. In the 1960 case of Osmena v. not of that of the Senate President. Commission on Elections.20 Though the petition was ultimately dismissed. The force of this precedent has been weakened. that the issues therein raised were political questions the determination of which is beyond judicial review. In Gonzales.17 the Court followed the traditional line. Comelec26 abandoned Mabanag v.process and the legislature's exercise of its discretionary authority is not subject to judicial interference. LopezVito. this Court proceeded to determine the number of Senators necessary for a quorum in the Senate. To be sure. In the 1949 case of Avelino v. The 1967 case of Gonzales v. In the first. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review. Lopez-Vito. we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control. we nullified the election. Jr. Cuenco. as members. Jr. however. The question of whether or not Congress. the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body. Avelino v. Pendatun. in the second. of the Senate Electoral Tribunal. In the 1957 case of Tanada v. for the second party. this Court characterizing the issue submitted thereto as a political one. Cuenco. we rejected the theory. of two (2) Senators belonging to the first party. Cuenco. Jr. the Court ruled: "It is true that in Mabanag v. Chief Accountant of the Senate. the Court did not always stay its hand whenever the doctrine is invoked.24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not.

as head of the executive department. with which the judicial department of government has no intervention.37 In Manalang v. declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision isfinal and conclusive on the courts. It noted that sudden and unexpected conditions may arise. could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. and with full confidence that he will perform such duties as his best judgment dictates.The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly.30 The Court hewed to the same line as regards the exercise of Executive power. It ruled that it is within the province of the political department and not of the judicial department of government to determine when war is at end. insurrection or rebellion.32 Similarly.40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition. Wood. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary.39 In 1952. the Court decided the landmark case of Montenegro v. and this power continues to exist for the preservation of the peace and domestic tranquility of the nation. The Court. Thus. citing Barcelon. It held that the appointing power is the exclusive prerogative of the President.38 the Court also declined to interfere in the exercise of the President's appointing power.36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by him to be injurious to the public interest. the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department. Quitoriano. The President's inherent power to deport undesirable aliens is universally denominated as political. growing out of the presence of untrustworthy aliens. Under the principle of separation of powers.33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions. Castaneda. upon which no limitations may be imposed by Congress. this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature. which demand immediate action."35 In Forties v. such questions being many times reserved to those departments in the organic law of the state. except those resulting from the need of securing concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office. the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits. Tiaco. it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly.29 In sum.31 where it was held that the Governor-General. it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. the respect accorded executive discretion was observed in Severino v. We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. Governor-General. In all such questions.41 . In the 1940's. the President has the power to determine whether war. this Court has held that as Commander-inChief of the Armed Forces. still continues or has terminated. It was held that when the Legislature conferred upon the Governor-General powers and duties. in Abueva v. in the legal sense. Each department has an exclusive field within which it can perform its part within certain discretionary limits.

it ruled that the function of the Court is not to supplant but merely to check the Executive. it intoned. v. was a political question. in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist.51 But barely six (6) days after Garcia-Padilla. the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v.48 In 1983.46 The validity of the declaration of martial law by then President Marcos was next litigated before the Court. It held that the issuance of the PCO by the President was not subject to judicial inquiry. to ascertain whether the President has gone beyond the constitutional limits of his jurisdiction.53 It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. On whether the validity of the imposition of martial law was a political or justiciable question. Enrile. Mott.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment Order (PCO). The emergency period of the 1970's flooded the Court with cases which raised the political question defense. the Lansang ruling was weakened by the Court in Garcia-Padilla v. It observed that in times of war or national emergency. particularly violations against human rights. and (2) the privilege was suspended by the American Governor-General whose act. a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect. with or without constitutional ratification.43 On the vital issue of how the Court may inquire into the President's exercise of power. The extent of the power which may be inquired into by courts is defined by these limitations. is answerable only to his conscience. According to the Court. Enrile. Jr. Garcia came. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met. and God. the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up to the moment the court passes upon the merits of the petition.Barcelon was the ruling case law until the 1971 case of Lansang v. and (2) when the public safety requires it. The issue divided the Court down the middle.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. the Court was almost evenly divided. v. 44 Using this yardstick. the Court found that the President did not. Petitioners sought the issuance of a writ of habeas corpus. as representative of the sovereign affecting the freedom of its subjects. the people. Jr. not to exercise the power vested in him or to determine the wisdom of his act. Those adhering to the political question doctrine used different methods of approach to it.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. The refusal of courts to be . 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ. the Court promulgated Morales. These limits are: (1) that the privilege must not be suspended except only in cases of invasion. In Aquino. The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter.47 it upheld the President's declaration of martial law. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable. which involved the U. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang.S. Judicial inquiry is confined to the question of whether the President did not act arbitrarily. It held that by the power of judicial review. Javellana v. the President must be given absolute control for the very life of the nation and government is in great peril. could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people. Enrile52 reiterating Lansang. The President. insurrection or rebellion or imminent danger thereof.

" It is clear from the foregoing that the President. these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. as Commanderin-Chief of the armed forces of the Philippines. Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. if not in session. The Supreme Court may review. Undeniably. suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Then Chief Justice Roberto Concepcion. within twenty-four hours following such proclamation or suspension. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. by a vote of at least a majority of all its Members in regular or special session. may call out the armed forces subject to two conditions: (1) whenever it becomes necessary. In case of invasion or rebellion. They define the constitutional parameters of the calling out power.pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. in an appropriate proceeding filed by any citizen. he may. I am not unaware that in the deliberations of the Constitutional Commission. x x x. if the invasion or rebellion shall persist and public safety requires it. 1. and must promulgate its decision thereon within thirty days from its filing. invasion or rebellion. 18. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question. voting jointly. The first was the need to grant this Court the express power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. in the same manner. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial . They gave birth to EDSA.54 which reads: "Sec. Article VIII in the draft Constitution. invasion or rebellion. which revocation shall not be set aside by the President. the President shall submit a report in person or in writing to Congress. and (2) to prevent or suppress lawless violence. a member of the Constitutional Commission. 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. worked for the insertion of the second paragraph of Section 1. Upon the initiative of the President. reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. shall. for a period not exceeding sixty days. he may call out such armed forces to prevent or suppress lawless violence. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and. extend such proclamation or suspension for a period to be determined by Congress. The Congress. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. x x x. may revoke such proclamation or suspension. Commissioner Bernas opined that the President's exercise of the "calling out power. The provision states: "Sec. convene in accordance with its rules without need of a call. The Congress." The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government. Article VII of the 1987 Constitution in light of our constitutional history. when the public safety requires it. We should interpret Section 18. the Congress may. thus.

its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces. the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. however. while in the former.55 The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute. as its impact on the rights of our people protected by the Constitution cannot be downgraded.law. ergo. It does not follow. Fernando. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine. Given the light of our constitutional history. "58 We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases. the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved. for in the latter case it is the intent of the legislature the courts seek.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it. and is a responsibility of the Court as ultimate interpreter of the fundamental law. as well as through the executive and legislative. in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far.60Every officer under a constitutional government must act according to law and subject to the controlling power of the people. acting through the courts. Chief Justice Enrique M.61 This historic role of the Court is the foundation stone of a government of laws and not of men. that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President. that while a member's opinion expressed on the floor of the Constitutional Convention is valuable. is a delicate exercise in constitutional interpretation. courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives. It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law.: . or whether the action of that branch exceeds whatever authority has been committed. is not a justiciable issue but a political question and therefore not subject to judicial review.57 It is true that the third paragraph of Section 18. this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past.59 When private justiciable rights are involved in a suit. this Court cannot pass upon the validity of its exercise. it is not necessarily expressive of the people's intent. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. One department is just as representative of the other. and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. It must be borne in mind. is apropos. SEPARATE OPINION VITUG. The counsel of Mr. In fine. especially when the question at issue falls in the penumbra between the "political" and the "justiciable. however. Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power. the intent to be arrived at is that of the people. J. but from the people who ratified it. Even then.62 I join the Decision in its result.

constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law. to see that no one branch or agency of the government transcends the Constitution. Justice Feria. any such act as and when it is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. heretofore known.. Cuenco. I believe.one totalistic and the other bounded .In the equation of judicial power. with the Supreme Court as the final arbiter. The 1987 Constitution has introduced its definition of the term "judicial power" to be that which “x x x includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. and (3) the injury is likely to be redressed by a favorable action by this Court. and confined to. its interest is indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing. Accordingly. MENDOZA. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views. As I have indicated elsewhere. let alone of institutionalizing judicial absolutism. and to nullify if need be. not only in justiceable but political questions as well. the act of the President in simply calling on the Armed Forces of the Philippines.2 My insistence on compliance with the standing requirement is grounded in the conviction that only a party injured by the operation of the governmental action challenged is in the best position to aid . I submit that judgment on the substantive constitutional issues raised by petitioner must await an actual case involving real parties with "injuries" to show as a result of the operation of the challenged executive action.”1 It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing the entire bureaucracy. to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not. neither of two extremes . (2) there must be a causal connection between the injury and the conduct complained of. an executive prerogative. and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. I vote for the dismissal of the petition. While as an organization for the advancement of the rule of law petitioner has an interest in upholding the Constitution. But while this Court does not wield unlimited authority to strike down an act of its two co-equal branches of government. no longer holds within that context."3 It is here when the Court must have to depart from the broad principle of separation of powers that disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate agencies of government. concurring and dissenting: I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the police in Metro Manila. 2 has aptly elucidated in his concurring opinion: "x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy. The term grave abuse of discretion is long understood in our jurisprudence as being. it must not wither under technical guise on its constitutionally ordained task to intervene. a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of jurisdiction. under its mandate. in the case of Avelino vs. a citizens' suit challenging the constitutionality of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature. J. It requires that the party seeking review be himself among those injured.is acceptable nor ideal. But I dissent insofar as the opinion dismisses the petition in this case on other grounds.1 The "injury in fact" test requires more than injury to a cognizable interest. The proscription then against an interposition by the Court into purely political questions.

under the Constitution. we do not have evidence on the effect of military presence in malls and commercial centers. For. . the President's power to call out the armed forces in order to suppress lawless violence. we are left to guess or even speculate on these questions. or whether it is reassuring to them. . I am constrained to limit my concurrence to the dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an actual case or controversy.3 Indeed. A Fabian policy of leaving well enough alone is a counsel of prudence. like calling them out because of actual fighting or the outbreak of violence. "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties. (p. invasion or rebellion is subject to the limitation that the exercise of this power is required in the interest of public safety. at one point. "Standing is not `an ingenious academic exercise in the conceivable' . the majority opinion somersaults and says that because of bombings perpetrated by lawless elements. For indeed. that the issues raised in this case are of "paramount interest" to the nation. We do not know whether the presence of so many marines and policemen scares shoppers. indeed. sound judgment on momentous constitutional questions is not likely to be reached unless it is the result of a clash of adversary arguments which only parties with direct and specific interest in the outcome of the controversy can make. 24) We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution."5 Because of the absence of such record evidence. but requires . Thus. invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law (in case of invasion or rebellion).not mere assertion. the deployment of troops to such places is not like parading them at the Luneta on Independence Day. For these reasons and with due appreciation of the scholarly attention lavished by the majority opinion on the constitutional questions raised. whether it is the calling out of the armed forces alone in order to suppress lawless violence. (p. To be sure. the majority opinion says that what is involved here is not even the calling out of the armed forces but only the use of marines for law enforcement. In this case. a factual showing of perceptible harm."6 We are told. i.. . however. This is true not only when we strike down a law or official action but also when we uphold it. and limited further to the constitutional question raised or the very lis mota presented. We need to have evidence on these questions because. and peaceful civilians. however. 13) At another point. just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. the deployment of troops in shopping centers and public utilities is justified.e. tourists. the exercise of the President's powers as commander-in-chief.the Court in determining the precise nature of the problem presented. the lack of a real. . however. as Justice Laurel emphasized in the Angara case. . earnest and vital controversy can only impoverish the judicial process. requires proof . It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. That is why. whether such presence is coercive or benign. Neither is it. Many a time we have adverted to the power of judicial review as an awesome power not to be exercised save in the most exigent situation.4 As has been pointed out. because of the absence of parties with real and substantial interest to protect.

H. GLORIA MACAPAGAL-ARROYO. CHIEF PNP. No. EMILIA P. JR. SANTIAGO. HARRY L. x-------------------------------------x G. AVELINO J. RENATO B. ARTURO LOMIBAO. AND ROQUE M. Respondents. No. GILBERT C. MUJIV S. MARIANO. DAPULANG. REPRESENTED BY ITS NATIONAL PRESIDENT. ROMEL REGALADO BAGARES. IMEE R.C. AFP CHIEF OF STAFF. MARCOS. 171396 May 3. MARTIN CUSTODIO. PASCUAL. SATUR C. x-------------------------------------x G. MAGTUBO. 171409 May 3. ARMED FORCES OF THE PHILIPPINES. SECRETARY OF NATIONAL DEFENSE.Republic of the Philippines SUPREME COURT Manila G. LOMIBAO.V. JR. 171483 May 3. AVELINO CRUZ II. AS PRESIDENT AND COMMANDER-IN-CHIEF. MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG. Petitioners. Respondents. SECRETARY. ARMED FORCES OF THE PHILIPPINES. Respondents. JOEL RUIZ BUTUYAN. 2006 FRANCIS JOSEPH G. HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LEONEN. No. DILG. CHIEF OF STAFF. THE CHIEF OF STAFF.. NICOLAS. vs. THE HONORABLE EXECUTIVE SECRETARY. 2006 KILUSANG MAYO UNO. vs. JUSTIN MARC SB. ANA THERESIA HONTIVEROSBARAQUEL. No. CRUZ. REMULLA. EXECUTIVE SECRETARY. 2006 PROF. MARIO J. JOSELITO V. EXECUTIVE SECRETARY EDUARDO ERMITA. JR. ANTONIO C. AQUINO. Petitioners. CHIPECO. VILLANUEVA.F. AND THE PNP DIRECTOR GENERAL. Respondents. OCAMPO. VIRADOR. DAVID. NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLUKMU). MAZA.R. FLORENCIO G. RONALD LLAMAS. PHILIPPINE NATIONAL POLICE. Petitioners. LIZA L. EDUARDO ERMITA.. ESCUDERO. CHIEF. HON. SECRETARY. ROGER R. TEOFISTO DL. ROILO GOLEZ. 2006 G. CARRANZA. NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO. CASINO. REPRESENTED BY ITS CHAIRPERSON ELMER C. CHRISTOPHER F. GENEROSO SENGA. JUAN . 171485 May 3. TAN. RAYEL. NERI JAVIER COLMENARES. JOSEPH A. vs. ROQUE. MARVIC M. LORETTA ANN P. PUNO. EMMANUEL JOSEL J. RANDOLF S. SALVADOR T. EDUARDO R. GENEROSO SENGA. INC. DIRECTOR GENERAL ARTURO LOMIBAO. PRESIDENT GLORIA MACAPAGALARROYO... vs. x-------------------------------------x EDGARDO ANGARA. ERMITA. GUINGONA III. JOSEL G. MALLARI.. GARY S. BOLASTIG. DND RONALDO V. GENERAL GENEROSO SENGA. TEODORO A. AGAPITO A.R. DARLENE ANTONINOCUSTODIO. HER EXCELLENCY. NOEL.R. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD. IMELDA C. LORENZO TAÑADA III. AGUJA. USTAREZ. ARTURO LOMIBAO. ROSALES.R. Petitioners. HATAMAN. RAFAEL V.

R. IN HIS CAPACITY AS PNP CHIEF. AND DIRECTOR GENERAL ARTURO LOMIBAO.R. JOVY C. EXECUTIVE SECRETARY EDUARDO R. the scales of justice should weigh heavily against government and in favor of the poor.Respondents. GENEROSO SENGA. LEGARDA. 171424 May 3. the marginalized. the courts should be vigilant in safeguarding the constitutional rights of the citizens. Respondents. DECISION SANDOVAL-GUTIERREZ. No. G. No. 2006 SECRETARY. LT. the Court is faced with an age-old but persistently modern problem.x-------------------------------------x G. without which. In this regard. No. Hence.R. DAGCUTA. with the degree of law. practical adjustments rather than rigid formula are necessary. FELIMON C. AMORADO. BERNABE. FELICIANO M. vs. No. RISOS-VIDAL. ROMULO R. Respondents. GENERAL GENEROSO SENGA.1 Superior strength – the use of force – cannot make wrongs into rights. 171489 May 3. He said: "In cases involving liberty. MANUEL P. Petitioners. ROGELIO V. in their professed efforts to defend and preserve democratic institutions. (ALG). GENEROSO SENGA. without which. 2006 LOREN B. Once again. AND EDUARDO ERMITA. EXECUTIVE SECRETARY EDUARDO ERMITA. RIVERA. AND DIRECTOR GENERAL ARTURO LOMIBAO. J. BAUTISTA. the oppressed. vs. GEN. Panganiban’s philosophy of liberty is thus most relevant. Petitioner. IN HIS CAPACITY AS EXECUTIVE . INC. 5). CADIZ. How does the Constitution of a free people combine the degree of liberty.B. ERMITA. such issuances are void for being unconstitutional. BERNARD L. 2006 JOSE ANSELMO I. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP). HON. Petitioners contend that respondent officials of the Government.O. liberty becomes license?3 ALTERNATIVE LAW GROUPS. IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP). ALICIA A. the dispossessed and the weak. IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF. ARTURO LOMIBAO. law becomes tyranny. are actually trampling upon the very freedom guaranteed and protected by the Constitution. IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP). 1017 (PP 1017) and General Order No. 171400 May 3. x-------------------------------------x G. ABELITA III. LEGASPI. specifically their liberty." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their constitutional validity. vs. GLORIA MACAPAGAL-ARROYO. IN HIS CAPACITY AS AFP CHIEF OF STAFF. JOSE AMOR M.: All powers need some restraint. President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioner."2 These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. Chief Justice Artemio V. 5 (G. J.

On February 24." and in my capacity as their Commander-in-Chief. O. Article 2. WHEREAS. . . the President issued G. . WHEREAS. their consequences. No. . by virtue of the powers vested upon me by Section 18. the claims of these elements have been recklessly magnified by certain segments of the national media. WHEREAS. whenever it becomes necessary. Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government. over a broad front. as the nation celebrated the 20th Anniversary of the Edsa People Power I. represented by the NDF-CPP-NPA and the extreme Right. 2006. represented by military adventurists . the activities above-described.the historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy. I. . may call out (the) armed forces to prevent or suppress. elements in the political opposition have conspired with authoritarians of the extreme Left. THEREFORE. . Article 7 of the Philippine Constitution which states that: "The President. . these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State. Gloria Macapagal-Arroyo.. . She cited the following facts as bases: WHEREAS. to bring down the duly-constituted Government elected in May 2004. WHEREAS. over these past months. represented by military adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy.rebellion. to bring down the duly constituted Government elected in May 2004. do hereby command the Armed Forces of the Philippines. this series of actions is hurting the Philippine State – by obstructing governance including hindering the growth of the economy and sabotaging the people’s confidence in government and their faith in the future of this country. WHEREAS. thus: WHEREAS. . President Arroyo issued PP 1017 declaring a state of national emergency. President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines. over these past months. thus: NOW. over a broad front. WHEREAS. ramifications and collateral effects constitute a clear and present dangerto the safety and the integrity of the Philippine State and of the Filipino people. these actions are adversely affecting the economy. orders and regulations promulgated by me personally or upon my direction. 5 implementing PP 1017. On the same day. WHEREAS. . Article 12 of the Constitution do hereby declare a State of National Emergency. andas provided in Section 17. elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right. to maintain law and order throughout the Philippines. these conspirators have repeatedly tried to bring down the President. prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees.

WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the people’s confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commanderin-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby

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

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents’ task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms." 5 On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate

selected targets including some cabinet members and President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I." On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty." On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against Arroyo."8 B/Gen. Danilo Lim and Brigade Commander Col. Ariel

Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio. Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it."9 On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the

issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10 By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."11 Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLUKMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge

hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.clusters of anti-riot police. police arrested (without warrant) petitioner Randolf S. The well-trained policemen used truncheons. The police showed a warrant for his arrest dated 1985. During the dispersal of the rallyists along EDSA. raided the Daily Tribune offices in Manila. and its sister publication. the police cited PP 1017 as the ground for the dispersal of their assemblies. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. Ronald Llamas. they were told they could not be admitted because of PP 1017 and G. 2006. and mock-ups of the Saturday issue. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened. is "meant to show a ‘strong presence. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper. the tabloid Abante. and scatter the massed participants. 5.O. Beltran. president of party-list Akbayan. on February 25. were taken into custody. had long been quashed. the police surrounded the premises of another pro-opposition paper. while policemen from the Manila Police District were stationed outside the building. When members of petitioner KMU went to Camp Crame to visit Beltran. water cannons. which stemmed from a case of inciting to rebellion filed during the Marcos regime. 1017 – we will recommend a ‘takeover. No. big fiber glass shields. That same evening. former head of the . pictures.’" National Telecommunications’ Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. is not a party in any of these petitions. No. identified as Roel and Art. while the rest were dispersed by the police. and tear gas to stop and break up the marching groups.if they would contribute to instability in the government. Beltran’s lawyer explained that the warrant." The PNP warned that it would take over any media organization that would not follow "standards set by the government during the state of national emergency. 5 and Proc. Also arrested was his companion. 5. No. on the basis of PP 1017 and G. David.14 Also. Two members were arrested and detained. 2006. operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP. representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU). documents. while leaving his farmhouse in Bulacan.O. however.13 A few minutes after the search and seizure at the Daily Tribune offices." Director General Lomibao stated that "if they do not follow the standards – and the standards are .’ to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. But his two drivers. Quezon City and to the corner of Santolan Street and EDSA.12 According to petitioner Kilusang Mayo Uno. At around 12:20 in the early morning of February 25. The raid. The same police action was used against the protesters marching forward to Cubao. or if they do not subscribe to what is in General Order No. the police arrested Congressman Crispin Beltran. He asked for "balanced reporting" from broadcasters when covering the events surrounding the coup attempt foiled by the government. according to Presidential Chief of Staff Michael Defensor. The raiding team confiscated news stories by reporters. a professor at the University of the Philippines and newspaper columnist. Malaya. Retired Major General Ramon Montaño.

was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas. petitioners Jose Anselmo I. They asserted that PP 1017 and G. (2) their issuance was without factual basis. In G. On March 3. petitioners Ninez Cacho-Olivares and Tribune Publishing Co.petitioners KMU. Attempts were made to arrest Anakpawis Representative Satur Ocampo. Liza Maza. of speech and of assembly. 171485. petitioner Alternative Law Groups. (ALGI) alleged that PP 1017 and G. hurricane and similar occurrences. No. No. In the interim. Representative Rafael Mariano. 171489. 5 are unconstitutional because they violate (a) Section 415 of Article II. 5 were filed with this Court against the above-named respondents. No.R. David. hence. 171409." In addition. Rafael Mariano.16 2. Later. No. (b) Sections 1. 5 constitute "usurpation of legislative powers". In G.. No.. Cavite." They also claimed that the term "emergency" refers only to tsunami. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. In G. No. Escudero. and (d) Section 1720 of Article XII of the Constitution. he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely. petitioners argued that "it amounts to an exercise by the President of emergency powers without congressional approval.R. typhoon. et al. Three (3) of these petitions impleaded President Arroyo as respondent.O. No. "violation of freedom of expression" and "a declaration of martial law. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran.O. these seven (7) petitions challenging the constitutionality of PP 1017 and G. (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law.R. In G. and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. 2006. 171483. 171396. alleged that PP 1017 is an "arbitrary and unlawful exercise by the President of her Martial Law powers.17 and 418 of Article III.O. In G. Inc. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress.R. No. Satur Ocampo. and Josel Virador. and twenty one (21) other members of the House of Representatives. petitioners Randolf S. President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. there is "absolutely no emergency" that warrants the issuance of PP 1017. No. Cadiz et al. are not being raised in these petitions. 5 are unconstitutional because (1)they arrogate unto President Arroyo the power to enact laws and decrees. 171400. et al." And assuming that PP 1017 is not really a declaration of Martial Law. petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as defined ." They alleged that President Arroyo "gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so. challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint. NAFLU-KMU. Teodoro Casiño. Inc.Philippine Constabulary." In G. Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. No. and their members averred that PP 1017 and G. and (3) it violates the constitutional guarantees of freedom of the press. petitioners herein are Representative Francis Joseph G. including Representatives Satur Ocampo. (c) Section 2319 of Article VI..R.O.R.

the ultimate source of all political authority. 171489 (Cadiz et al. Facial Challenge b. Section 4 of the 1987 Constitution.). in G. 171400 (ALGI).). it is not necessary for petitioners to implead President Arroyo as respondent. 171485 (Escudero et al. Nos. PP 1017 does not violate the people’s right to free expression and redress of grievances. No.under the Revised Administrative Code. we must resolve the procedural roadblocks. It was ordained by the people. 2006. 5 are "unconstitutional for being violative of the freedom of expression. As Applied Challenge A. 171483 (KMU et al. and 171424(Legarda) have legal standing. she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. 5 are unconstitutional. fourth.). to thwart its unconstitutional attempt. third. It confers limited powers on the national government. Constitutional Basis c.) have no legal standing.R. Madison.O. In respondents’ Consolidated Comment. B. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic.21 This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. SUBSTANTIVE: 1) Whetherthe Supreme Court can review the factual bases of PP 1017.O. 2) Whether PP 1017 and G.22 .) and 171489 (Cadiz et al. Legarda maintained that PP 1017 and G. 171424 (Legarda).). including its cognate rights such as freedom of the press and the right to access to information on matters of public concern. x x x If the government consciously or unconsciously oversteps these limitations there must be some authority competent to hold it in control.R. On March 7. the Solicitor General countered that: first. the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: A.R. the petitions should be dismissed for being moot.second. PROCEDURAL First. PP 1017 has constitutional and legal basis." In this regard. This is the beginning and the end of the theory of judicial review. 171400 (ALGI)." And lastly. a. all guaranteed under Article III. and fifth.petitionerLoren B. This power the courts exercise. and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. I. No. Nos.petitioners in G. 171424. 2) Whether petitioners in 171485 (Escudero et al. 171483 (KMU et al. G. No.Moot and Academic Principle One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v.

respondents’ contested actions are capable of repetition. Executive Secretary. the Court has the duty to formulate guiding and controlling constitutional precepts. No. and in the present petitions.31 second. Petitioners alleged that the issuance of PP 1017 and G.27 Generally. third. committed illegal acts in implementing it. on the extent of the protection given by constitutional guarantees. Certainly. Panganiban’s Separate Opinion inSanlakas v. 5 violates the Constitution."23 Courts may exercise such power only when the following requisites are present: first. and the public.But the power of judicial review does not repose upon the courts a "self-starting capacity. there is a grave violation of the Constitution. according to petitioners. It is "definite and concrete. hence. it affords no protection.29 The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic. they failed to take into account the Chief Justice’s very statement that an otherwise "moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance. there must be an actual case or controversy. when constitutional issue raised requires formulation of controlling principles to guide the bench. second. There is no question that the issues being raised affect the public’s interest.36 However." a real and substantial controversy admitting of specific relief.32 third. the police officers. if: first. Such contention lacks merit.35 And lastly. petitioners have to raise a question of constitutionality.26 so that a declaration thereon would be of no practical use or value." The present case falls right within this exception to the mootness rule pointed out by the Chief . It must be stressed that "an unconstitutional act is not a law. doctrines or rules. An actual case or controversy involves a conflict of legal right. we shall limit our discussion thereon. Courts will decide cases."30 The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case.24 Respondents maintain that the first and second requisites are absent. contending that the present petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions.33 and fourth. of assembly and of the press. respondents cited Chief Justice Artemio V.25 The Solicitor General refutes the existence of such actual case or controversy. the petitions are subject to judicial review. involving as they do the people’s basic rights to freedom of expression. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events. the decision of the constitutional question must be necessary to the determination of the case itself.O. an opposite legal claims susceptible of judicial resolution. In their attempt to prove the alleged mootness of this case. the constitutional question must be raised at the earliest opportunity.34 All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions. Moreover. Are PP 1017 and G. touching the legal relations of parties having adverse legal interest. the case is capable of repetition yet evading review.O. No. the bar. it confers no rights. it imposes no duties. otherwise moot and academic. inoperative. courts decline jurisdiction over such case28 or dismiss it on ground of mootness. it is in legal contemplation. the exceptional character of the situation and the paramount public interest is involved. the military and the police. During the eight (8) days that PP 1017 was operative. It has the symbolic function of educating the bench and the bar. and fourth.

42 later reaffirmed in Tileston v. He could be suing as a "stranger. does so as a representative of the general public. such as.39 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In People v." or ‘taxpayer. Felix. to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with.48 However. being a mere procedural technicality. the plaintiff who asserts a "public right" in assailing an allegedly illegal official action. Secretary of Public Works47 and AntiChinese League of the Philippines v. De la Fuente. Custodio v. Collins:40 "In matter of mere public right. He may be a person who is affected no differently from any other person. the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. and that a public grievance be remedied. This was done in the 1949 Emergency Powers Cases. if not the duty. Dinglasan. the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. while in the latter.44 it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained. Silk. Here. as amended. he must show that he has sustained a direct injury as a result of that action."37 In private suits." In either case. or will sustain direct injury as a result. Ullman. Terr v. of every citizen to interfere and see that a public offence be properly pursued and punished." or in the category of a "citizen. Vera. and it is not sufficient that he has a general interest common to all members of the public." The Vera doctrine was upheld in a litany of cases. The distinction was first laid down inBeauchamp v." However. This Court adopted the "direct injury" test in our jurisdiction. he is but the mere instrument of the public concern.Legal Standing In view of the number of petitioners suing in various personalities. the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt. Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.Justice. As held by the New York Supreme Court in People ex rel Case v. In the former. Araneta v. President of the Senate. the plaintiff’s standing is based on his own right to the relief sought. he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer. It provides that "every action must be prosecuted or defended in the name of the real party in interest.43 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action. Jordan41held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied. The difficulty of determining locus standi arises in public suits. Rule 3 of the 1997 Rules of Civil Procedure. and thus hinders the activities of governmental agencies engaged in public service. he has to adequately show that he is entitled to seek judicial protection. II.49 where ." With respect to taxpayer’s suits. the requirement of locus standi may be waived by the Court in the exercise of its discretion."38Succinctly put. however…the people are the real parties…It is at least the right.45 Manila Race Horse Trainers’ Association v.46 Pascual v. Locus standi is defined as "a right of appearance in a court of justice on a given question. standing is governed by the "real-parties-in interest" rule as contained in Section 2. In other words. the plaintiff is affected by the expenditure of public funds." Accordingly.

" Pertinent are the following cases: (1) Chavez v. . In Aquino v. there must be a showing of obvious interest in the validity of the election law in question. Taxpayers. and (5) for legislators. Inc. the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces Agreement. they have been allowed to sue under the principle of "transcendental importance. (2) Bagong Alyansang Makabayan v. (4) for concerned citizens. By way of summary. it cannot sue as a taxpayer absent any allegation that public funds are being misused. the cases must be settled promptly and definitely and standing requirements may be relaxed. v. Such liberality was neither a rarity nor accidental.the "transcendental importance" of the cases prompted the Court to act liberally.50 this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. (3) for voters.56 the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite personality to question the validity of the on-line lottery contract. Zamora. members of Congress. regulations and rulings. In Kilosbayan. allowing ordinary citizens. Moreover. Executive Secretary. Zamora. (3) Lim v. Public Estates Authority. concerned citizens.51 Thus. Indeed. recent decisions show a certain toughening in the Court’s attitude toward legal standing. provided that the following requirements are met: (1) the cases involve constitutional issues. Comelec. there is a chain of cases where this liberal policy has been observed. voters.52 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi. there must be a claim that the official action complained of infringes upon their prerogatives as legislators. and legislators may be accorded standing to sue. there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional. Significantly.53 wherein the Court held that "given the transcendental importance of the issues involved. (2) for taxpayers.54 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or spending powers.55that in cases of transcendental importance. there must be a showing that the issues raised are of transcendental importance which must be settled early. it reiterated its ruling in Bagong Alyansang Makabayan v. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. more so where it does not raise any issue of constitutionality. and civic organizations to prosecute actions involving the constitutionality or validity of laws. Morato. the following rules may be culled from the cases decided by this Court. the Court has adopted a rule that even where the petitioners have failed to show direct injury.

5.65 We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G. 171483. Zamora. No. In Sanlakas v. petitioners. who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing. 171400. 171396. Laban ng Demokratikong Pilipino (LDP). They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. thus impairing their legislative powers. In G. having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. As to petitioners Sanlakas.R. while undoubtedly true. Perez.R.O. Comelec. Tuvera. the application of the above principles to the present petitions. In G.62 Basco v. Executive Secretary.. No. Rightly so. particularly David and Llamas. Inc. in view of the transcendental importance of the issue. the Court declared them to be devoid of standing. No. 171409. Enriquez.R. However. Now. it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. equating them with the LDP in Lacson. No. No.59 the Court ruled that only the petitioners who are members of Congress have standing to sue. and Social Justice Society. the Solicitor General does not question their legal standing.R. v. 171485. The locus standi of petitioners in G. No.57 the Court reiterated the "direct injury" test with respect to concerned citizens’ cases involving constitutional issues. 1017 and G. Moreover. The fact that she is a . No. Tan. Inc.O.In Telecommunications and Broadcast Attorneys of the Philippines. v.O. 171424. No.61 Association of Small Landowners in the Philippines." In Lacson v.64 that when the issue concerns a public right. Cadiz et al.58 the Court ruled that one of the petitioners. this Court declares that petitioner have locus standi. It held that "there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. members or supporters. as they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress. (ALGI). Secretary of Agrarian Reform. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. In Integrated Bar of the Philippines v. The same holds true with petitioners inG. this Court applied the liberality rule in Philconsa v. 171489. is not sufficient to clothe it with standing in this case.R. In G. 5. it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. Cacho-Olivares and Tribune Publishing Co.63 and Tañada v. is beyond doubt. is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders. No. No. KMU’s assertion that PP 1017 and G. v. Philippine Amusement and Gaming Corporation. Organizations may be granted standing to assert the rights of their members.60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas.66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more.R. Inc. Partido Manggagawa. the opposition Congressmen alleged there was usurpation of legislative powers. In G. Inc. In G.R. This is too general an interest which is shared by other groups and the whole citizenry.

Like any other official. Garcia.74 The tug-of-war always cuts across the line defining "political questions. Enrile. hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter." particularly those questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. 5. There. However. he remains accountable to the people68 but he may be removed from office only in the mode provided by law and that is by impeachment. the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency.O. No. it was not "necessary" for President Arroyo to issue such Proclamation. this Court may relax the standing rules. From the principle of separation of powers. Castaneda71 to the volatile era of Lansang v. it shifted the focus to the system of checks and balances. this does not mean that the President is not accountable to anyone. But considering once more the transcendental importance of the issue involved.67 may not be sued in any civil or criminal case. if he can be dragged into court litigations while serving as such.72Aquino. Incidentally. Enrile.from the indulgent days of Barcelon v. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from pursuing her occupation. only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.73 and Garcia-Padilla v. "under which the President is . No. it is important that he be freed from any form of harassment. The petitions thus call for the application of the "transcendental importance" doctrine.former Senator is of no consequence. It will degrade the dignity of the high office of the President. it is not proper to implead President Arroyo as respondent. Furthermore. 1017 and G. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. Hence.69 B. Settled is the doctrine that the President. the Head of State.O. Lansang took the opposite view. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G. a relaxation of the standing requirements for the petitioners in the "PP 1017 cases. To paraphrase Justice Laurel. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief power has reached its distilled point . It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. Baker70 and Montenegro v. Unlike the legislative and judicial branch. v."75 Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. during his tenure of office or actual incumbency. and there is no need to provide for it in the Constitution or law. Jr. SUBSTANTIVE I. 5 is a judicial question which is of paramount importance to the Filipino people.net This Court holds that all the petitioners herein have locus standi. Review of Factual Bases Petitioners maintain that PP 1017 has no factual basis."1avvphil.

"76 In 1973."79 The Integrated Bar of the Philippines v." but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.81 It speaks of judicial prerogative not only in terms of powerbut also of duty. Zamora80 -. and the reproving statements from the communist leaders. It declared that there is a need to re-examine the latter case. the exercise of such power or duty must not stifle liberty. by way of proof. their audacious threat of the Magdalo D-Day. However. the standard laid down is not correctness. is answerable only to his conscience. with supporting reports forming part of the records. absent any contrary allegations. Mentioned are the escape of the Magdalo Group. which in this respect. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017. Enrile which greatly diluted Lansang. but arbitrariness. the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Under the new definition of judicial power. While the Court considered the President’s "calling-out" power as a discretionary power solely vested in his wisdom. judging the seriousness of the incidents. Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. . particularly in the Philippine Marines. the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question.supreme.a recent case most pertinent to these cases at bar -." The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory. by issuing PP 1017. is totally bereft of factual basis. Lansang adopted the test that "judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct. the People." Thus.78Then came Garcia-Padilla v. constitutionally supreme. The President. this Court further ruled that "it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis" and that if he fails. in turn. Petitioners presented nothing to refute such events."This ruling is mainly a result of the Court’s reliance on Section 1.83 In Integrated Bar of the Philippines. is. to support his assertion. Enrile. the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable. and the authority to determine whether or not he has so acted is vested in the Judicial Department." but that "the President did not act arbitrarily.echoed a principle similar toLansang. Indeed. ratiocinating that "in times of war or national emergency.82 As to how the Court may inquire into the President’s exercise of power. it intoned. President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence. to wit.77 There. the President must be given absolute control for the very life of the nation and the government is in great peril. x x x only if and when he acts within the sphere allotted to him by the Basic Law. Thus. and God. the defections in the military. the unanimous Court of Lansang was divided in Aquino v. the discretion of the political departments of the government. it stressed that "this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. invasion or rebellion. then "this Court cannot undertake an independent investigation beyond the pleadings." Petitioners failed to show that President Arroyo’s exercise of the calling-out power.

and it clear that the people’s first intention is that the State shall not perish.87 John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning.II. suggesting that "the people have no other remedy in this. for although they may for a time be beneficial. which prevents them from adopting themselves to circumstances. as one element in the whole scheme of limited government.89 Machiavelli – in contrast to Locke. it should never be necessary to resort to extra –constitutional measures.. for if the practice is once established for good objects. Locke readily admitted defeat. He recognized and attempted to bridge this chasm in democratic political theory. If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation. he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. Even Sparta allowed its law to lapse. but to appeal to Heaven."84 But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers." He was unwilling to rely upon an "appeal to heaven. in certain cases. In times of danger to the nation. Constitutionality of PP 1017 and G.O. the method is to nominate a supreme lawyer. they will in a little while be disregarded under that pretext but for evil purposes. yet the precedent is pernicious. who shall silence all the laws and suspend for a moment the sovereign authority.. In these situations. No. A glimpse at the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion. the ruin of the State… It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. 5 Doctrines of Several Political Theorists on the Power of the President in Times of Emergency This case brings to fore a contentious subject -. no republic will ever be perfect if she has not by law provided for everything."85 Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. render them disastrous and make them bring about. it would more likely be cheapened by "indiscreet use." Instead.86 Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. as in all other cases where they have no judge on earth."88 Nicollo Machiavelli’s view of emergency powers. furnished an ironic contrast to the Lockean theory of prerogative. without the proscription of the law and sometimes even against it. describing the architecture of civil government. called upon the English doctrine of prerogative to cope with the problem of emergency. may. the Crown retained a prerogative "power to act according to discretion for the public good. in cases of extreme necessity. there is no doubt about the general will. He attempted .the power of the President in times of emergency. In such a case. positive law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. having a remedy for every emergency and fixed rules for applying it. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here. John Locke. the assumption of absolute power in the form of a temporary dictatorship. For him. According to him: The inflexibility of the laws. thus: Now. at a time of crisis. Thus. Rosseau and Mill – sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. in a well-ordered society.

e. he stated a priori the conditions of success of the "constitutional dictatorship. with effective constitutional restraints. the objective of emergency action must be the defense of the constitutional order. Rossiter. for how long. to wit: "The emergency executive must be appointed by constitutional means – i.91 Frederick M. no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis . These are the conditions of success of such a dictatorship: "The period of dictatorship must be relatively short…Dictatorship should always be strictly legitimate in character…Final authority to determine the need for dictatorship in any given case must never rest with the dictator himself…"94 and the objective of such an emergency dictatorship should be "strict political conservatism. as well as all constitutional governance:increasing administrative powers of the executive. no right invaded."93 Watkins placed his real faith in a scheme of constitutional dictatorship. and last.98 Like Watkins and Friedrich. emergency powers should be exercised under a strict time limitation.95 "It is a problem of concentrating power – in a government where power has consciously been divided – to cope with… situations of unprecedented magnitude and gravity. reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing problems presented by emergency. Germany and the United States. and to what end. France. when." Carl J. There must be a broad grant of powers. after surveying the history of the employment of emergency powers in Great Britain..forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency."97 Clinton L. 6) The measures adopted in the prosecution of the a ." thus: 1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional order… 2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator… 3) No government should initiate a constitutional dictatorship without making specific provisions for its termination… 4) …all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements… 5) … no dictatorial institution should be adopted. too."96 Friedrich. have employed the doctrine of constitutional dictatorship." provided it "serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life. offered criteria for judging the adequacy of any of scheme of emergency powers. Weimar. . addressing themselves to the problem of response to emergency by constitutional democracies. Watkins saw "no reason why absolutism should not be used as a means for the defense of liberal institutions. while at the same time "imposing limitation upon that power."92 He recognized the two (2) key elements of the problem of emergency governance. . he should not enjoy power to determine the existence of an emergency. subject to equally strong limitations as to who shall exercise such powers. he must be legitimate.90 Contemporary political theorists. Friedrich cast his analysis in terms similar to those of Watkins.

they favored instead the "concept of constitutionalism" articulated by Charles H. . in analyzing the above contemporary theories in light of recent experience. he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible." To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis.101 . While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government. 8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. but rather in the limiting of it. "the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory. "constitutional dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. He found that the really effective checks on despotism have consisted not in the weakening of government but. is that formulated by Charles H. . However used. McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force.100 Scott and Cotter. and he places great faith in the effectiveness of congressional investigating committees. . He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. like the decision to institute one should never be in the hands of the man or men who constitute the dictator. . 9) The decision to terminate a constitutional dictatorship. and which is consistent with the findings of this study. . And in discussing the meaning of constitutionalism. McIlwain clearly recognized the need to repose adequate power in government. He would secure to Congress final responsibility for declaring the existence or termination of an emergency. It matters not whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. full emphasis is placed upon procedural limitations. McIlwain: A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers. 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted… 11) …the termination of the crisis must be followed by a complete return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship…99 Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. Thus. . were one in saying that. McIlwain. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.constitutional dictatorship should never be permanent in character or effect… 7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order. and political responsibility. In associating constitutionalism with "limited" as distinguished from "weak" government. between which there is a great and very significant difference.

103 A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. This system does not weaken the President.e.105 it was held: It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary action’ is inappropriate.ultimately aim to solve one real problem in emergency governance. to McIlwain’s "principle of constitutionalism" --. endeavored to create a government in the concept of Justice Jackson’s "balanced power structure." In Broadrick v. and judicial powers are dispersed to the President. In other words. the 1986 Constitutional Commission. Thus. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. and the Supreme Court. First and foremost. in times of emergency. "Facial Challenge" Petitioners contend that PP 1017 is void on its face because of its "overbreadth. the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases. is uncalled for. attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful. using the language of McIlwain. In United States v.In the final analysis. the Congress. while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. also known under the American Law as First Amendment cases. Our Constitution has fairly coped with this problem. at the same time. that of allotting increasing areas of discretionary power to the Chief Executive. the various approaches to emergency of the above political theorists –. at the very least. our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but. legislative. Article III of the Constitution and sent a "chilling effect" to the citizens." They claim that its enforcement encroached on both unprotected and protected rights under Section 4."102Executive. lawless violence." to Watkins’ doctrine of "constitutional dictatorship" and. claims of facial overbreadth are entertained in cases . Moreover." Undoubtedly. that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function. But the plain import of our cases is. constitutionally unprotected conduct. i. Fresh from the fetters of a repressive regime. Oklahoma. a.104 the US Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment" (freedom of speech). it obliges him to operate within carefully prescribed procedural limitations. the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining comprehensive control over harmful. Each is supreme within its own sphere. using the overbreadth doctrine. eventually. Each branch is given a role to serve as limitation or check upon the other. a limited one at the outset. in drafting the 1987 Constitution..from Lock’s "theory of prerogative. insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct. it just limits his power. respectively. But none has the monopoly of power in times of emergency. A facial review of PP 1017. Salerno. constitutionally unprotected conduct.

ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions. the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. not on the basis of its actual operation to petitioners. in other situations not before the Court.. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others. seek to regulate only "spoken words" and again. Ordinarily. and the court invalidates the entire statute "on its face. In overbreadth analysis.involving statutes which. challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests.e."106 Here. too. that "overbreadth claims. i. a particular litigant claims that a statute is unconstitutional as applied to him or her. is unwarranted. since the challenger must establish that there can be no instance when the assailed law may be valid. by their terms.. but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. The combination of the relative remoteness of the controversy.109 it was held that: [T]he task of analyzing a proposed statute. a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully. facial invalidation of laws is considered as "manifestly strong medicine. which is manifestly subject to state regulation." to be used "sparingly and only as a last resort. For . whichever way they might be decided. In other words. pinpointing its deficiencies. Harris."110 It is subject to the same principles governing overbreadth doctrine.108 A writer and scholar in Constitutional Law explains further: The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. if entertained at all. not free speech. petitioners did not even attempt to show whether this situation exists. theimpact on the legislative process of the relief sought. and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes. Moreover. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects." not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. Second.."107 The reason for this is obvious. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. This. and requiring correction of these deficiencies before the statute is put into effect. And third. challenges are permitted to raise the rights of third parties." and is "generally disfavored. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling." deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. if the litigant prevails.. the incontrovertible fact remains that PP 1017 pertains to a spectrum ofconduct. have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. The Court assumes that an overbroad law’s "very existence may cause others not before the court to refrain from constitutionally protected speech or expression. is rarely if ever an appropriate task for the judiciary. Here. those rules give way.

Constitutional Basis of PP 1017 Now on the constitutional foundation of PP 1017. shall within twenty-four hours following such proclamation or suspension. And like overbreadth. by a vote of at least a majority of all its Members in regular or special session. invasion or rebellion. for a period not exceeding sixty days. he may call out such armed forces to prevent or suppress lawless violence. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary. and must promulgate its decision thereon within thirty days from its filing. suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion" Second provision: "and to enforce obedience to all the laws and to all decrees. The Supreme Court may review. extend such proclamation or suspension for a period to be determined by the Congress. when the public safety requires it. the Congress may. 18. Justice Dante O. In case of invasion or rebellion. Executive Secretary. in the same manner. if not in session. Upon the initiative of the President. orders and regulations promulgated by me personally or upon my direction. petitioners did not even attempt to show that PP 1017 is vague in all its application. Tinga. In Sanlakas v. voting jointly. through Mr." First Provision: Calling-out Power The first provision pertains to the President’s calling-out power. which revocation shall not be set aside by the President. The operative portion of PP 1017 may be divided into three important provisions. the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof." Third provision: "as provided in Section 17. b. thus: First provision: "by virtue of the power vested upon me by Section 18. Artilce VII … do hereby command the Armed Forces of the Philippines. The Congress.one.111 this Court. it is also an analytical tool for testing "on their faces" statutes in free speech cases. convene in accordance with its rules without need of a call. Again. the President shall submit a report in person or in writing to the Congress. he may. if the invasion or rebellion shall persist and public safety requires it. Article VII of the Constitution reproduced as follows: Sec. The Congress. may revoke such proclamation or suspension. A state of martial law does not suspend the operation of the . held that Section 18. in an appropriate proceeding filed by any citizen. to maintain law and order throughout the Philippines. Article XII of the Constitution do hereby declare a State of National Emergency.

112 the Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it becomes necessary. There lies the wisdom of our Constitution. She also relied on Section 17. During the suspension of the privilege of the writ. Chapter 2. or not written. Book II of the Revised Administrative Code of 1987. the greater are the limitations. she is in the best position to determine the actual condition of the country. PP 1017 calls for the exercise of an awesome power. invasion or rebellion. Such declaration. which provides: SEC. grants the President. Indeed. as Commander-in-Chief. invasion and rebellion. nor supplant the functioning of the civil courts or legislative assemblies. however. otherwise he shall be released. the statutory authority cited in Sanlakas was Section 4. the greater the power. This involves ordinary police action. is harmless. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. In declaring a state of national emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from her powers as Chief Executive. For this reason. without legal significance. Owing to her Office’s vast intelligence network. these are: the calling-out power. PP 1017 is more than that. From the most to the least benign. considering the circumstances then prevailing. a provision calling on the AFP to prevent or suppress lawless violence. nor automatically suspend the privilege of the writ. He cannot invoke a greater power when he wishes to act under a lesser power. Article XII. What defines the character of PP 1017 are its wordings." Are these conditions present in the instant cases? As stated earlier. such Proclamation cannot be deemed harmless. It is pertinent to state. and the power to declare Martial Law. President Arroyo’s declaration of a "state of rebellion" was merely an act 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. that there is a distinction between the President’s authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. Obviously. in the words of Sanlakas.Constitution. President Arroyo did not only rely on Section 18. It is plain therein . It is no so. a provision on the State’s extraordinary power to take over privatelyowned public utility and business affected with public interest. a declaration allowed under Section 4 cited above. as in the case of Sanlakas. and deemed not written. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Citing Integrated Bar of the Philippines v." the President may call the armed forces "to prevent or suppress lawless violence. shall be promulgated in proclamations which shall have the force of an executive order. President Arroyo found it necessary to issue PP 1017. the power to suspend the privilege of the writ of habeas corpus. Zamora. Under the calling-out power. Article VII of the Constitution. In these cases. – Proclamations. any person thus arrested or detained shall be judicially charged within three days. nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. the President may summon the armed forces to aid him in suppressing lawless violence. a "sequence" of graduated powers. – Acts of the President fixing a date or declaring a status or condition of public moment or interest. invasion or rebellion. without legal significance. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. 4. a President must be careful in the exercise of his powers.

and any act done contrary to its command is ultra vires. among others. The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order. he is required to take an oath or affirmation to the effect that as President of the Philippines. Justice Mendoza further stated that specifically. In fact. nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. and (d) issuance of Presidential Decrees. 2006. upon pain of arrest and punishment. Satur Ocampo. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. He sees to it that all laws are enforced by the officials and employees of his department."116 In the exercise of such function.that what the President invoked was her calling-out power. bureaus. it is clear that PP 1017 is not a declaration of Martial Law. especially Representatives Francis Joseph G. (a) arrests and seizures without judicial warrants. Second Provision: "Take Care" Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. the power to declare Martial Law poses the most severe threat to civil liberties. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. and offices. the President. not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Liza Maza. Section 18. provides: A state of martial law does not suspend the operation of the Constitution. He shall ensure that the laws be faithfully executed. This is based on Section 17. Article VII which reads: SEC.119 Petitioners. and that. it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. while the emergency lasts. Escudero. VII.117 including the Philippine National Police118 under the Department of Interior and Local Government. nor supplant the functioning of the civil courts or legislative assemblies. Before assuming office. (b) ban on public assemblies. It cannot be used to stifle or persecute critics of the government. As such. Art. 17. if needed. and Josel Virador argue that PP 1017 is . Justice Vicente V."113 In his "Statement before the Senate Committee on Justice" on March 13.115 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. Its use for any other purpose is a perversion of its nature and scope. may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country. nor automatically suspend the privilege of the writ. said that of the three powers of the President as Commander-in-Chief. Mendoza. are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. It is a strong medicine which should not be resorted to lightly. The President shall have control of all the executive departments. Mr. (c) take-over of news media and agencies and press censorship.114 an authority in constitutional law. they must. Based on the above disquisition. Teodoro Casiño. "execute its laws. Rafael Mariano. As the Executive in whom the executive power is vested. he will. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence.

Administrative Orders. do hereby command the Armed Forces of the Philippines. orders and regulations promulgated by me personally or upon my direction. 3. bureaus or offices of the Government. 4. Sec. Section 1 of the Constitution under martial law and. Executive Orders. which partly reads: NOW." Is it within the domain of President Arroyo to promulgate "decrees"? PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction. agencies. 5. 1081. the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees. upon the existence of which the operation of a specific law or regulation is made to depend. Article VI of the Constitution. They assail the clause "to enforce obedience to all the laws and to all decrees. THEREFORE.unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1. — Acts of the President on matters relating to internal administration. I. orders and regulations promulgated by me personally or upon my direction. 6. do hereby place the entire Philippines as defined in Article 1. — Acts of the President fixing a date or declaring a status or condition of public moment or interest. Memorandum Circulars. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. shall be embodied in . She may issue any of the following: Sec. Sec. Sec. President of the Philippines by virtue of the powers vested upon me by Article VII. Book III of Executive Order No. 2. in my capacity as their Commander-in-Chief. orders and regulations promulgated by me personally or upon my direction. Proclamations. Sec. shall be promulgated in proclamations which shall have the force of an executive order. Its enabling clause states: "to enforce obedience to all the laws and decrees." The President is granted an Ordinance Power under Chapter 2. to maintain law and order throughout the Philippines. FERDINAND E. A reading of PP 1017 operative clause shows that it was lifted120 from Former President Marcos’ Proclamation No. orders and regulations promulgated by me personally or upon my direction. MARCOS. 292 (Administrative Code of 1987). Paragraph (2) of the Constitution. for information or compliance. — 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." \ Petitioners’ contention is understandable. prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees. — Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. which vests the power to enact laws in Congress. Memorandum Orders. We all know that it was PP 1081 which granted President Marcos legislative power. Section 10." Upon the other hand. which the President desires to bring to the attention of all or some of the departments.

7. PP 1017 purports to grant the President. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier. cannot be enforced. as a product of the "martial law" thinking of the 1971 Constitutional Convention. Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. orders. The import of this provision is that President Arroyo. It follows that these decrees are void and. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution. During the existence of the state of national emergency. during the emergency and under reasonable terms prescribed by it. during the state of national emergency under PP 1017. and regulations promulgated by me personally or upon my direction. General or Special Orders. Article XII which reads: Sec. without any authority or delegation from Congress. With respect to "laws. therefore. the State may." Legislative power is peculiarly within the province of the Legislature. Third Provision: Power to Take Over The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees.and as provided in Section 17.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. to take over or direct the operation of any privately-owned public utility or business affected with public interest. control and . laws governing family and property relations. laws on obligations and contracts and the like. when the public interest so requires. Section 1. President Arroyo has no authority to enact decrees. What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017? The answer is simple. She can only order the military. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. In times of national emergency. such as customs laws. can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17. 17. neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. — Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders." To be sure. temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. 2 dated September 22. to enforce laws pertinent to its duty to suppress lawless violence. Article XII of the Constitution do hereby declare a state of national emergency." she cannot call the military to enforce or implement certain laws.121 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate "decrees. 1972 instructing the Secretary of National Defense to take over "the management. President Arroyo’s ordinance power is limited to the foregoing issuances. Sec.memorandum circulars. This provision was first introduced in the 1973 Constitution. under PP 1017.

Courts have often said that constitutional provisions in pari materia are to be construed together. subject to certain . for a limited period and subject to such restrictions as it may prescribe. voting separately. Article VI authorizing it to delegate such powers to the President." 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. the National Waterworks and Sewerage Authority. Article VII grants the President such power. relate to national emergencies. Otherwise stated. Article XII in PP 1017 is an encroachment on the legislature’s emergency powers. the Philippine Long Distance Telephone Company. the Congress may. To the first. no legitimate constitutional objection can be raised. . Clearly. hence. This is an area that needs delineation. knowing that during grave emergencies. different clauses.123 Considering that Section 17 of Article XII and Section 23 of Article VI. for the successful prosecution by the Government of its effort to contain. manifold constitutional issues arise. 23. previously quoted. solve and end the present national emergency. then the Framers could have provided so. by law. authorize the President. It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national emergency. But the exercise of emergency powers. and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other. Generally. But to the second. shall have the sole power to declare the existence of a state of war. such as the taking over of privately owned public utility or business affected with public interest. This is evident in the tenor of Section 23 (2). they did not intend that Congress should first authorize the President before he can declare a "state of national emergency. the Philippine Air Lines. is a different matter. Section 18. This requires a delegation from Congress. A distinction must be drawn between the President’s authority to declare "a state of national emergency" and to exercise emergency powers. they must be read together to determine the limitation of the exercise of emergency powers." The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress. by a vote of two-thirds of both Houses in joint session assembled. . (1) The Congress. the Philippine National Railways. (2) In times of war or other national emergency. it may not be possible or practicable for Congress to meet and exercise its powers. the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President. Air Manila (and) Filipinas Orient Airways . Section 23." Petitioners. as elucidated by the Court. a body cannot delegate a power not reposed upon it. Article VI of the Constitution reads: SEC. sections. However. such powers shall cease upon the next adjournment thereof. Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war).operation of the Manila Electric Company. claim that President Arroyo’s inclusion of Section 17. particularly the members of the House of Representatives. Congress is the repository of emergency powers. Certainly.

Article XII refers to "tsunami. it must be found in some provision of the Constitution. This is a job for the nation’s lawmakers." it refers to Congress. et al. (3) The delegation must be subject to such restrictions as the Congress may prescribe. . when Section 17 states that the "the State may. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war.127 Emergencies. Implicit in this definitions are the elements of intensity.125 held: It is clear that if the President had authority to issue the order he did. Sawyer. not the President." and that he "shall be Commander-in-Chief of the Army and Navy of the United States. variety. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President .conditions. . et al." "hurricane"and"similar occurrences. Thus. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. and perception. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. contends that the term "emergency" under Section 17. Even though "theater of war" be an expanding concept. (4) The emergency powers must be exercised to carry out a national policy declared by Congress." Emergency." This is a limited view of "emergency. Youngstown Sheet & Tube Co. And it is not claimed that express constitutional language grants this power to the President. connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. not for its military authorities. Such cases need not concern us here. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President.. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. as a generic term. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. . . v. The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces." that "he shall take Care that the Laws be faithfully executed. Article XII must be understood as an aspect of the emergency powers clause. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production." "typhoon. ."126 Petitioner Cacho-Olivares. thus: (1) There must be a war or other emergency. whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (2) The delegation must be for a limited period only. as perceived by legislature or .124 Section 17. In the framework of our Constitution. Now. during the emergency and under reasonable terms prescribed by it.

it could refer to both military or economic dislocations. MR. BENGZON. The point is. thus: MR.134 this Court emphasized that legislative power. MR. Never in the history of the United States. Strikes. not excepting periods of crisis no matter how serious. have been occasioned by a wide range of situations. Congress may not be able to convene and. TINGSON.132 xxxxxx MR. pestilence or epidemic. therefore. VILLEGAS. not even when that Republic was fighting a total war. Yes. in preference to the commingling of powers in one man or group of men." MR. What I mean is threat from external aggression. page 5? It reads: When the common good so requires. classifiable under three (3) principal heads: a) economic. It may include rebellion. calamities or natural disasters.131 This is evident in the Records of the Constitutional Commission. legislation is preserved for Congress all the time. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system. with all its faults. the fact remains that the Constitution has set up this form of government. under this framework of government. Yes. GASCON. for example. Dinglasan.’ given the ability to act. those would not be covered by the term "national emergency. VILLEGAS. the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. and judicial. executive. or other similar catastrophe of nationwide proportions or effect. no. in times of extreme perils more than in normal circumstances ‘the various branches. have specific functions of the legislative branch of enacting laws been surrendered to another department – unless we regard as legislating the carrying out of a legislative policy according to prescribed standards. with all its defects and shortcomings. legislative. as the ideal. The truth is that under our concept of constitutional government. What about strikes and riots? MR. are . GASCON. What is the Committee’s definition of "national emergency" which appears in Section 13. the basic features of whose Constitution have been copied in ours. through which extraordinary measures are exercised. May I ask the committee if "national emergency" refers to military national emergency or could this be economic emergency?" MR. There is a question by Commissioner de los Reyes. TINGSON. flood. MR. VILLEGAS. no.130 "Emergency. unable to delegate to the President the power to take over privatelyowned public utility or business affected with public interest. economic crisis. Thank you very much." as contemplated in our Constitution. or when it was engaged in a life-and-death struggle to preserve the Union. "x x x After all the criticisms that have been made against the efficiency of the system of the separation of powers. In Araneta v. is of the same breadth. remains in Congress even in times of crisis.128 b) natural disaster.executive in the United Sates since 1933.129 and c) national security. typhoon.133 It may be argued that when there is national emergency. Unless they are of such proportions such that they would paralyze government service.

the basis was PP 1017. to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest. Three policemen were assigned to guard their office as a possible "source of destabilization. Let it be emphasized that while the President alone can declare a state of national emergency. invasion or rebellion. and of assembly under the Bill of Rights suffered the greatest blow. In short. however. and the freedom of speech. petitioners KMU and NAFLU-KMU et al. No 5 on the basis of these illegal acts? In general. A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation. this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. No.R. Likewise. Can this Court adjudge as unconstitutional PP 1017 and G. does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused135 and may afford an opportunity for abuse in the manner of application.R. three (3) indicate "direct injury. Here. Our history reveals that in the crucible of conflict. It had accomplished the end desired . the right against unreasonable search and seizure. Nor can he determine when such exceptional circumstances have ceased. the CIDG operatives "raided and ransacked without warrant" their office. No.136 The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired. without legislation. of PP 1017. of the press. to Ayala Avenue. pursuant to G. that which pertains to security. c. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. And in G." Following our interpretation of Section 17.R. the President has no power to point out the types of businesses affected with public interest that should be taken over. 171483.O. No. 171409. Of the seven (7) petitions. Article XII." Again. many rights are curtailed and trampled upon." In G. No. Inc. of expression. Article VII in the absence of an emergency powers act passed by Congress.. petitioners David and Llamas alleged that. not from its effects in a particular case. the President has no absolute authority to exercise all the powers of the State under Section 17. 171396. claimed that on February 25. invoked by President Arroyo in issuing PP 1017. petitioners Cacho-Olivares and Tribune Publishing Co. they were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. "AS APPLIED CHALLENGE" One of the misfortunes of an emergency. 5. on February 24. particularly. without legislation. alleged that their members were "turned away and dispersed" when they went to EDSA and later.O. Its general purpose is to command the AFP to suppress all forms of lawless violence. he has no power to take over privately-owned public utility or business affected with public interest. is that military necessity and the guaranteed rights of the individual are often not compatible. 2006. 2006. In G.called upon ‘to perform the duties and discharge the responsibilities committed to them respectively. the right against warrantless arrest.137 PP 1017 is merely an invocation of the President’s calling-out power.

may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. No. Habib Bourgouiba in Tunisia. But there is nothing in PP 1017 allowing the police. to conduct illegal arrest. majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. not arbitrary or capricious. President Arroyo issued G. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. insurrection or rebellion. G. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. and which is invariably associated with "invasion. the "fight against terrorism" has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. or Ahmed Ben Bella in Algeria. Now. Congress has yet to enact a law defining and punishing acts of terrorism. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public. one requirement for these rules to be valid is that they must bereasonable.139 They are based on and are the product of. Such rules and regulations create no relation except between the official who issues them and the official who receives them. but are clearly determined by strategic interests. were originally labeled as terrorists by those who controlled the . a relationship in which power is their source.which prompted President Arroyo to issue PP 1021. Remarkable confusion persists in regard to the legal categorization of acts of violence either by states. 5 to carry into effect the provisions of PP 1017.140 For these reasons. The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter.138 This is logical. and obedience. but the international community as well." They are internal rules issued by the executive officer to his subordinates precisely for the proper and efficient administration of law. search or violate the citizens’ constitutional rights. and not a mere incidental result arising from its exertion. The following observations are quite apropos: In the actual unipolar context of international relations. this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country. their object. by armed groups such as liberation movements." The apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa. or by individuals." Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution. No. If this were so. In fact. judging from the blunders committed by policemen in the cases passed upon by the Court. expressly or impliedly.O. to mention only a few. The basic problem underlying all these military actions – or threats of the use of force as the most recent by the United States against Iraq – consists in the absence of an agreed definition of terrorism. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power." the phrase "acts of terrorism" is still an amorphous and vague concept.O. General orders are "acts and commands of the President in his capacity as Commander-inChief of the Armed Forces of the Philippines.

It must be remembered that an act can only be considered a crime if there is a law defining the .141 The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G. and a terrorist gang for the Soviet Union. Depending on whether a state is in the position of an occupying power or in that of a rival. the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way – because of opposing political interests that are at the roots of those perceptions. nurtured by the United States. An illustration is when a group of persons are merely engaged in a drinking spree. this is abuse and oppression on their part. in spite of the emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle. then. What. former great powers of the Cold War era as well as medium powers are increasingly being marginalized. The organization has intensified its efforts recently. but later became internationally respected statesmen.e. The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i. Obviously." not of "terrorism" when acts of violence by this group are concerned. This "definitional predicament" of an organization consisting of sovereign states – and not of peoples. most drastically. The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India. the definition of terrorism will "fluctuate" accordingly. No. liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United States. then. of an occupying power in a given territory. state functionaries or infrastructure or military installations. or adversary. can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis. A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence. the basic reason for these striking inconsistencies lies in the divergent interest of states. is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or selfdefense? 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. and vice-versa.O. and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United States. terrorists for the Socialist camp – or. How.territory at the time. but has been unable to bridge the gap between those who associate "terrorism" with any violent act by non-state groups against civilians. 5.

in P. Arrest without warrant. third. sixth.) The Constitution provides that "the right of the people to be secured in their persons. No. without a warrant. fourth. the PNP operatives arrested him on the basis of PP 1017. i. Significantly. this Court declares that the "acts of terrorism" portion of G. and seventh. and particularly describing the place to be searched and the persons or things to be seized. Otherwise. Thus. certain facts are established: first.O. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence.R. All these can be effected in the name of G. Quezon City where he was fingerprinted. 5. No. We first examine G. 880145 and Inciting to Sedition. seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest.D. taking over the media enterprises.D.he was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked car. 1985. prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. Rule 113 of the Revised Rules on Criminal Procedure provides: Sec. 171396 (David et al. No. he was detained for seven (7) hours. he was arrested without warrant. do not define "acts of terrorism. terrorism. breaking into offices and residences. 5.same as such and imposing the corresponding penalty thereon.O. such acts are considered illegal. houses." Since there is no law defining "acts of terrorism. No. 1835 dated January 16."142 The plain import of the language of the Constitution is that searches. papers and effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable. under G. Certainly. photographed and booked like a criminal suspect. there can be indiscriminate arrest without warrants. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. there is nothing in G. Thus. Consequently. No. Section 5.A peace officer or a private person may.he was eventually released for insufficiency of evidence. he was charged with Violation of Batas Pambansa Bilang No." The word "terrorism" is mentioned in the following provision: "That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force. fifth. No. 5. 1835 was repealed by E. however. violence. the word "terrorism" appears only once in our criminal laws. This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations. when lawful. the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.O. These two (2) laws.O. x x x shall be punished by reclusion temporal x x x..O. Her judgment on this aspect is absolute. arrest a ." P. the limitation of their authority in pursuing the Order. These acts go far beyond the calling-out power of the President. without restrictions. they violate the due process clause of the Constitution. So far. No. who has the discretion to determine what acts constitute terrorism.e. 5 is unconstitutional. second." it is President Arroyo alone. . 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5. he was brought at Camp Karingal. 1981 enacted by President Marcos during the Martial Law regime.143 In the Brief Account144 submitted by petitioner David. No.

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. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. such fact is insufficient to charge him with inciting to sedition. except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words. or of the press. Section 4 of Article III guarantees: No law shall be passed abridging the freedom of speech. the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. if the assembly is intended to be held in a public place. The question. not as to the . Further. the right to assemble is not subject to previous restraint or censorship.148 it was held that peaceable assembly cannot be made a crime. The ringing truth here is that petitioner David. failed to justify the arresting officers’ conduct. He noted that petitioner David was not wearing the subject tshirt and even if he was wearing it.person: (a) When. Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. may be validly required. of course. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except. As can be gleaned from circumstances.147 But what made it doubly worse for petitioners David et al. neither was there a showing of a clear and present danger that warranted the limitation of that right. the person to be arrested has committed. and x x x. this right is not to be limited. thus: Peaceable assembly for lawful discussion cannot be made a crime. They were not committing any crime. Oregon. In De Jonge v. Even the Solicitor General. in his presence. "Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. or is attempting to commit an offense. if the rights of free speech and peaceful assembly are not to be preserved. during the oral argument. It is a necessary consequence of our republican institution and complements the right of speech. all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally. much less denied. is not as to the auspices under which the meeting was held but as to its purpose. The holding of meetings for peaceable political action cannot be proscribed. were arrested while they were exercising their right to peaceful assembly. and not for the assembly itself. As in the case of freedom of expression. a permit for the use of such place. but also their right to peaceably assemble. the charges of inciting to sedition and violation of BP 880 were mere afterthought. is actually committing. et al. During the inquest for the charges of inciting to sedition and violation of BP 880. of expression. like other rights embraced in the freedom of expression.146Consequently. or the right of the people peaceably to assemble and petition the government for redress of grievances. is that not only was their right against warrantless arrest violated.

their dispersal was done merely on the basis of Malacañang’s directive canceling all permits previously issued by local government units."149 Tolerance is the rule and limitation is the exception. Here. except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened. seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it. 2006. et al. if they have formed or are engaged in a conspiracy against the public peace and order.’ to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. (Cacho-Olivares. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a ‘strong presence. (G. On the basis of the above principles. respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence.. much less denied. 171483) unwarranted. the search was conducted in the absence of any official of the Daily Tribune except the security guard of the building. No.’" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. and according to procedure. policemen stationed themselves at the vicinity of the Daily Tribune offices." Director General Lomibao further stated that "if they do not follow the standards –and the standards are if they would contribute to instability in the government. the freedom of the press. established the following: first.) presents another facet of freedom of speech i.R. the Court likewise considers the dispersal and arrest of the members of KMU et al. This is arbitrary. the distinction between protected and unprotected assemblies was eliminated. But it is a different matter when the State. third.150 The first time they learned of it was at the time of the dispersal. which the Solicitor General failed to refute. the search was conducted at about 1:00 o’ clock in the morning of February 25. With the blanket revocation of permits. Moreover.second. When a person’s right is restricted by government action. under BP 880. petitioners were not even notified and heard on the revocation of their permits. Indeed. the Daily Tribune’s offices were searched without warrant. 171409. If the persons assembling have committed crimes elsewhere.e. instead of prosecuting them for such offenses.relations of the speakers. reasonable. invasion or rebellion. the police operatives seized several materials for publication.151 The search is illegal. the authority to regulate assemblies and rallies is lodged with the local government units. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is not to be limited. and fifth. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of . fourth. 5 and Proc. Thereafter. Such absence of notice is a fatal defect. it behooves a democratic government to see to it that the restriction is fair. 1017 – we will recommend a ‘takeover. Petitioners’ narration of facts. G. No. a wave of warning came from government officials. but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. or if they do not subscribe to what is in General Order No. No. Apparently. they may be prosecuted for their conspiracy or other violations of valid laws.R.

Freedom to comment on public affairs is essential to the vitality of a representative democracy. unless the property is on the person or in the place ordered to be searched. Is that not in admission of the admissibility of these clippings that were taken from the Tribune? SOLICITOR GENERAL BENIPAYO: Under the law they would seem to be. While admittedly.search and seizure. and the arrogant warning of government officials to media." thus: JUSTICE CALLEJO: You made quite a mouthful of admission when you said that the policemen. The motto should always be obsta principiis. and against any stealthy encroachments thereon. and constitutes a virtual denial of petitioners' freedom to express themselves in print. the The Daily Tribune was subjected to these arbitrary intrusions because of its antigovernment sentiments. with the further result that the printing and publication of said newspapers were discontinued. alert and even militant press is essential for the political enlightenment and growth of the citizenry. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. room. And Section 9 states that the warrant must direct that it be served in the daytime. the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum" newspapers. and that the same are inadmissible "for any purpose. the Solicitor General admitted that the search of the Tribune’s offices and the seizure of its materials for publication and other papers are illegal. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law.Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. the search violated petitioners’ freedom of the press. when inspected the Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings. or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter. the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the above case. Chief of Staff152 this Court held that -As heretofore stated. yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. these premises were padlocked and sealed. It is the duty of the courts to be watchful for the constitutional rights of the citizen. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v.154 Incidentally. in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. As a consequence of the search and seizure. Not only that. the stationing of policemen in the vicinity of the The Daily Tribune offices. during the oral arguments.153Undoubtedly. are plain censorship. Section 8mandates that the search of a house. if they were illegally . The search and seizure of materials for publication. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so. This state of being is patently anathematic to a democratic framework where a free. All these rules were violated by the CIDG operatives. in which case a direction may be inserted that it be served at any time of the day or night.

I don’t know if it is premature to say this. a misapplication of the law. according to the Solicitor General.seized. SR. Not upon my instructions. I think and I know.157 The Dissenting Opinion states that PP 1017 and G. ASSO. and these are inadmissible for any purpose. no. ASSO.156 Likewise. thus: CHIEF JUSTICE PANGANIBAN: . the supposed illegal or unlawful acts committed on the occasion of 1017. it is not based on any law. we do not condone this. it has no basis. illegal and cannot be condoned. These are acts of the police officers. as you said. no legal basis whatsoever? SR. as I said.O. the warrantless arrests and seizures executed by the police were. JUSTICE PUNO: Are you saying that the act of the policeman is illegal. The acts. So why do you have to go there at 1 o’clock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what? SOLGEN BENIPAYO: Well. Your Honor. JUSTICE PUNO: SOLGEN BENIPAYO: These have been published in the past issues of the Daily Tribune. JUSTICE PUNO: So. You cannot blame the President for. SR. it was the police that did that. SOLGEN BENIPAYO: It is not based on Proclamation 1017. that is why I said. Your Honor." The Court has passed upon the constitutionality of these There seems to be some confusions if not contradiction in your theory. Maybe so. Your Honor. ASSO. because there is nothing in 1017 which says that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper. no. Your Honor. If the people who have been injured by this would want to sue them. No. they can sue and there are remedies for this. that is their responsibility. Your Honor. 5 are constitutional in every aspect and "should result in no constitutional or statutory breaches if applied according to their letter. SOLICITOR GENERAL BENIPAYO: Maybe so.155 xxxxxxxxx As far as I know. SR. JUSTICE PUNO: Is it based on any law? SOLGEN BENIPAYO: I don’t know whether this will clarify. it cannot be condoned. from the facts. all you have to do is to get those past issues. and it is not based on Proclamation 1017. ASSO.

2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent. Panganiban’s concurring opinion. are not authorized by the Constitution. and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials. the law and jurisprudence. On the basis of the relevant and uncontested facts narrated earlier. suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence.O. there have been media reports on April 30. illegal acts were committed allegedly in pursuance thereof. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. no law has been enacted to guide the military. Article XII of the Constitution. is considered an integral part of thisponencia. 5. the transcendental issues raised by the parties should not be "evaded.issuances. in the absence of a legislation. No. (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members. The proclamation is sustained by Section 18. 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." they must now be resolved to prevent future constitutional aberration. Article VII of the Constitution and the relevant jurisprudence discussed earlier.O. However. No. However.O. It is an Order issued by the President – acting as Commander-inChief – addressed to subalterns in the AFP to carry out the provisions of PP 1017. criminal or administrative sanctions on the individual police officers concerned. this Court has to declare such acts unconstitutional and illegal. it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. the Court finds G. the President. (3) the imposition of standards on media or any prior restraint on the press. At this point. In the same vein. (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President. may not again be issued. and eventually the courts. 5. When in implementing its provisions. Chief Justice Artemio V. this Court cannot impose any civil. Its ratiocination has been exhaustively presented. the military and the police committed acts which violate the citizens’ rights under the Constitution. pursuant to G. or one similar to it. No. 5. the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case moot and academic. Other than this declaration of invalidity. The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. In this connection. there is no guarantee that PP 1017. while PP 1017 was still operative. invasion or rebellion.O. attached hereto. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G. cannot take over privately-owned public utility and private business affected with public interest. Not even by the valid provisions of PP 1017 and G. 5 valid. Besides. While "terrorism" has been denounced generally in media. No. are ultra vires and unconstitutional. to determine the limits of the AFP’s authority in carrying out this portion of G. David and Ronald Llamas. . They have not been individually identified and given their day in court. Significantly. The Court also rules that under Section 17." Consequently.O. PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees. SUMMATION In sum. No. and (3) to impose standards on media or any form of prior restraint on the press.O. Already."But the words "acts of terrorism" found in G.

but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. as well as decrees promulgated by the President. the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence. SO ORDERED. are declared UNCONSTITUTIONAL. and political responsibility of the government to the governed. No. Perhaps. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. are declaredUNCONSTITUTIONAL. the imposition of standards on media or any form of prior restraint on the press. in the absence of proof that these petitioners were committing acts constituting lawless violence. invasion or rebellion and violating BP 880.Elementary due process bars this Court from making any specific pronouncement of civil. the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that. However. such portion of G. No costs.O.e. yet they should not be arbitrary as to unduly restrain our people’s liberty. the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies.O. the provision in PP 1017 declaring national emergency under Section 17." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature. QUISUMBING Asscociate Justice . No. Article VII of the Constitution isCONSTITUTIONAL. In addition. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017. governmental action may vary in breadth and intensity from normal times. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR: ARTEMIO V. David and Ronald Llamas. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence.158 WHEREFORE. 5 is declared UNCONSTITUTIONAL. PUNO Associate Justice LEONARDO A. as well as the warrantless search of theTribune offices and whimsical seizure of its articles for publication and other materials. the Petitions are partly granted. it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power. PANGANIBAN Chief Justice (On leave) REYNATO S. i. The warrantless arrest of Randolf S. criminal or administrative liabilities. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency. G.

ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice ADOLFO S. it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. Asscociate Justice DANTE O. JR. ARTEMIO V. CHICONAZARIO Associate Justice ANTONIO T. CARPIO Asscociate Justice RENATO C. CORONA Asscociate Justice ROMEO J. PANGANIBAN Chief Justice EN BANC . TINGA Asscociate Justice CANCIO C. Associate Justice CERTIFICATION Pursuant to Section 13. GARCIA Asscociate Justice PRESBITERO J. AZCUNA Associate Justice MINITA V. VELASCO. SR. CALLEJO.CONSUELO YNARES-SANTIAGO Associate Justice MA. Article VIII of the Constitution.

2008. the COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. The Facts On February 2. April 2. and (2) Resurreccion Z. Finance Services Department of the Commission on Elections. BORRA. On February 15. ALFREDO L. COMELEC EID Commissioner-inCharge Mehol K. J. On June 1.Specifically. 2001[11] addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID. VELMA J. RESURRECCION Z. President Macapagal Arroyo renewed again the ad interim appointments of Benipayo.[2] On March 22. the Commission on Appointments did not act on said appointments. TUASON. Borra and Tuason to the same positions and for the same term of seven years. JR. Matibag (“Petitioner” for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. 2000. BENIPAYO.[10] They took their oaths of office anew. 2001. Borra and Tuason to the same positions. . Sadain objected to petitioner’s reassignment in a Memorandum dated April 14. Petitioner Ma. Commissioner Rufino S. Benipayo (“Benipayo” for brevity) as Chairman of the Commission on Elections (“COMELEC” for brevity). Thus. Tuason. 2001. 149036. Borra and Tuason for confirmation. 2001 the ad interim appointments of Benipayo. petitioner. Benipayo took his oath of office and assumed the position of COMELEC Chairman. FLORENTINO A. Commissioner Sadain questioned The Case Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. expiring on February 2.[3] and Borra[4] and Tuason[5] as COMELEC Commissioners. Benipayo issued a Memorandum dated April 11. President Gloria Macapagal Arroyo appointed. designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. CINCO.[G. 2002] MA. J.B. respondents. 2001. ad interim. Angelina G. Petitioner also questions the legality of the appointment of Velma J.. In his capacity as COMELEC Chairman.R. on June 8. Javier renewed again the appointment of petitioner to the same position in a “Temporary” capacity. Cinco[1] (“Cinco” for brevity) as Director IV of the COMELEC’s Education and Information Department (“EID” for brevity). President Arroyo renewed the ad interim appointments of Benipayo. No.[9] The Office of the President submitted their appointments for confirmation to the Commission on Appointments. 2008. vs.[7] They took their oaths of office for a second time. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners. each for a term of seven years and all expiring on February 2.[6]However. J. 1999. and GIDEON C. MATIBAG. The Office of the President submitted to the Commission on Appointments on May 22. On February 15. 2001 their appointments to the Commission on Appointments for confirmation. (“Tuason” for brevity) as COMELEC Commissioners.: then Chairperson Harriet O.[8] Congress adjourned before the Commission on Appointments could act on their appointments. 2001[12] addressed to the COMELEC en banc. Jr. DECISION CARPIO. Benipayo as COMELEC Chairman. The Office of the President transmitted on June 5. 2001. DE GUZMAN in his capacity as Officer-In-Charge. Borra (“Borra” for brevity) and Florentino A. Demetriou renewed the appointment of petitioner as Director IV of EID in a “Temporary” capacity. ANGELINA G.

[15] Petitioner also filed an administrative and criminal complaint[16] with the Law Department[17] against Benipayo. Borra and Tuason. The Issues The issues for resolution of this Court are as follows: 1. respectively. has RESOLVED. to appoint. Simultaneously. THEREFORE. petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo. Borra and Tuason are legal. 2001. and other pertinent administrative and civil service laws. Civil Service Memorandum Circular No. 001. 2001. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. 2001. 2000. provided that the changes in the assignment of its field personnel within the thirtyday period before election day shall be effected after due notice and hearing. respectively. Whether or not the assumption of office by Benipayo. 07. as Chairman and Commissioners of the COMELEC. COMELEC Resolution No. as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members.[14] citing COMELEC Resolution No. reminding heads of government offices that “transfer and detail of employees are prohibited during the election period beginning January 2 until June 13. . 2001. Petitioner claims that the ad interim appointments of Benipayo. 2008. questions the legality of the disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. hire new employees or fill new positions and transfer or reassign its personnel. 3300 dated November 6. [18] They all took their oaths of office anew. on September 6. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases. During the pendency of her complaint before the Law Department. 7 dated April 10.[13] Petitioner cited Civil Service Commission Memorandum Circular No. De Guzman to Benipayo. petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners. On April 16. 3258. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority. the Commission on Elections by virtue of the powers conferred upon it by the Constitution.” Benipayo denied her request for reconsideration on April 18. moreover. the Omnibus Election Code and other election laws. Article IX-C of the Constitution. 4. Petitioner. Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2). as it is hereby RESOLVED. Assuming that the first ad interim appointments and the first assumption of office by Benipayo. rules and regulations. 2.” Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23. Borra and Tuason by way of salaries and other emoluments. for a term of seven years expiring on February 2. In the meantime. Article IX-C of the Constitution. whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2). Borra and Tuason violate the constitutional provisions on the independence of the COMELEC. petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department. 3. 2001. when necessary in the effective performance of its mandated functions during the prohibited period.Benipayo’s failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner. s. which states in part: “NOW. 2001. alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code. as an exception to the foregoing prohibitions.

and as the Commission’s Chief Executive Officer. Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim appointments of Benipayo. (3) the exercise of the judicial review is pleaded at the earliest opportunity. where she was Acting Director.[20] Respondents claim that the reassignment was “pursuant to x x x Benipayo’s authority as Chairman of the Commission on Elections. it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. then petitioner’s reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. We are not persuaded. However.[19] Respondents argue that the second. an office created by the Constitution. 2001 despite the fact that the ad interim appointments of Benipayo. Out of respect for the acts of the Executive department. Petitioner filed the instant petition only on August 3. First Issue: Propriety of Judicial Review Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases.”[21] Evidently. (2) a personal and substantial interest of the party raising the constitutional issue. Petitioner’s personal and substantial injury. Borra and Tuason were issued as early as March 22. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the EID to the Law Department. petition was filed after the third time that these three respondents were issued ad interim appointments. to the Law Department. Petitioner filed the petition only on August 3. Borra and Tuason. which is co-equal with this Court. in continuing to make disbursements in favor of Benipayo. Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. 5. if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution. clothes her with the requisite locus standi to raise the constitutional issue in this petition. Clearly. Neither does petitioner claim to be directly injured by the appointments of these three respondents. is acting in excess of jurisdiction. Borra and Tuason unless all the four requisites are present. On the other hand. 2001. Borra. her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman. “if it is not raised in the pleadings. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same. the Benipayo reassigned petitioner from the EID. when the first ad interim appointments were issued as early as March 22. Tuason and Cinco. 2001. respondents anchor the legality of petitioner’s reassignment on Benipayo’s authority as Chairman of the COMELEC. respondents urge this Court to refrain from reviewing the constitutionality of thead interim appointments issued by the President to Benipayo. if Benipayo is not the lawful COMELEC Chairman. the constitutionality of the ad interim appointments is not the lis mota of this case. Consequently. Borra or Tuason. where she was placed on detail service. 2001. third and fourth requisites are absent in this case. and (4) the constitutional issue is the lis mota of the case. Even if petitioner is only an Acting Director of the EID. petitioner has a personal and material stake in the resolution of the constitutionality of Benipayo’s assumption of office.having been done without the approval of the COMELEC as a collegial body. it . such that. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo. Moreover. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo. Borra and Tuason and their assumption of office. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department. These are: (1) the existence of an actual and appropriate controversy.

For this reason. three Members shall hold office for seven years. respectively.”[22] Petitioner questioned the constitutionality of the ad interim appointments of Benipayo. this Court may determine. and can even be disapproved or simply by-passed by the Commission on Appointments. and the last Members for three years. namely the Civil Service Commission and the Commission on Audit. which is the earliest opportunity for pleading the constitutional issue before a competent body. the time when a constitutional issue may be passed upon.cannot be considered at the trial. Unless the constitutionality of Benipayo’s ad interim appointment and assumption of office is resolved. Article IX-C of the Constitution. the issue raised by petitioner is of paramount importance to the public. Prior to his confirmation. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14. Moreover. petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2). it cannot be considered on appeal. “The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. the legality of petitioner’s reassignment from the EID to the Law Department cannot be determined. Of those first appointed. this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised. The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. Based on petitioner’s theory. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In the words of petitioner. and. which provides as follows: . if not considered at the trial. the lis mota of this case is the very constitutional issue raised by petitioner. Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit. the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. public interest requires the resolution of the constitutional issue raised by petitioner.” (Emphasis supplied) Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure. The last sentence of Section 1 (2). In no case shall any Member be appointed or designated in a temporary or acting capacity. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Article IX-C of the Constitution. Borra and Tuason when she filed her petition before this Court. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad interim appointment and assumption of office. there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions. In keeping with this Court’s duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them. Moreover. in the exercise of sound discretion. two Members for five years.[23] There is no doubt petitioner raised the constitutional issue on time. Furthermore. a Sword of Damocles hangs over the head of Second Issue: The Nature of an Ad Interim Appointment Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2).[24] Here the petitioner has complied with all the requisite technicalities. In any event. Clearly. 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. without reappointment.

It takes effect at once. Intermediate Appellate Court. good until another permanent appointment is issued. and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. and only upon the consent of the Commission on Appointments may the person thus named assume office. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature. In the former. Section 10. Ozaeta. 1948. the President nominates. the appointment is effective ‘until disapproval by the Commission on Appointments or until the next adjournment of the Congress. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynilavs. as a de jure officer. Article VII of the Constitution.” (Emphasis supplied) The Constitution imposes no condition on the effectivity of an ad interim appointment. His title to such office is complete. the ad interim appointment remains effective until such disapproval or next adjournment.” (Emphasis supplied) Thus. which provides that the ‘President shall have the power to make appointments during the recess of the Congress. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The term is defined by Black to mean “in . whether voluntary or compulsory. Private respondent had been extended several ‘ad interim’ appointments which petitioner mistakenly understands as appointments temporary in nature.’” Petitioner cites Black’s Law Dictionary which defines the term “ad interim” to mean “in the meantime” or “for the time being. this Court had already ruled that an ad interim appointment is permanent in character.every appointee whose confirmation is pending with the Commission on Appointments.” Hence. but such appointments shall beeffective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.[25] decided on October 25. The second paragraph of Section 16. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary. we held that: “x x x an ad interim appointment is one made in pursuance of paragraph (4). We find petitioner’s argument without merit. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. it is easy to see why the petitioner should experience difficulty in understanding the situation. Perhaps. signifying that it can no longer be withdrawn or revoked by the President. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The appointee can at once assume office and exercise. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. In the language of the Constitution. It is not so with reference to ad interim appointments. Secretary of the Commission on Appointments.[27] where we explained that: “x x x From the arguments. In Pacete vs. petitioner argues that anad interim appointment is undoubtedly temporary in character. and thus an ad interim appointment takes effect immediately. all the powers pertaining to the office. it is the literal translation of the word ‘ad interim’ which creates such belief. Article VII of the Constitution provides as follows: “The President shall have the power to make appointments during the recess of the Congress. The individual chosen may thus qualify and perform his function without loss of time. In Summers vs. More than half a century ago. [26] this Court elaborated on the nature of an ad interim appointment as follows: “A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess.

Thus. Jr. including the COMELEC. after notice and hearing. The term. 12. although not found in the text of the Constitution.” (Emphasis supplied) Thus. In the instant case. This Court ruled that: . can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. Court of Appeals. in Brillantes vs. no matter how briefly.”[29] Thus. and any withdrawal or revocation thereafter is tantamount to removal from office. the appointment extended to private respondent by then MSU President Alonto. anad interim appointment becomes complete and irrevocable once the appointee has qualified into office. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions.[30] Once an appointee has qualified. means a permanent appointment made by the President in the meantime that Congress is in recess. Ad interim appointments are permanent but their terms are only until the Board disapproves them. 1978). is unable to act. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. Rather. Thus. He enjoys the constitutional protection that ”[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.the meantime” or “for the time being”. The Court had again occasion to explain the nature of anad interim appointment in the more recent case of Marohombsar vs. Esteban’s appointments. rather it denotes the manner in which the appointment was made. No one. The withdrawal or revocation of an ad interimappointment is possible only if it is communicated to the appointee before the moment he qualifies. In referring to Dr. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. An ad interim appointment can be terminated for two causes specified in the Constitution. done by the President of the Pamantasan in the meantime. it is used to denote the manner in which said appointments were made. it is not indicative of whether the appointment is temporary or in an acting capacity. or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary. Revised Fourth Edition. however. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. consistent with the requirements of due process.[31] A temporary or acting appointee does not enjoy any security of tenure. But such is not the meaning nor the use intended in the context of Philippine law. the term is not descriptive of the nature of the appointments given to him. that is.” (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. in effect. While an ad interim appointment is permanent and irrevocable except as provided by law. he acquires a legal right to the office which is protected not only by statute but also by the Constitution. was issued without condition nor limitation as to tenure. It does not mean a temporary appointment that can be withdrawn or revoked at any time. He can only be removed for cause. has acquired a definite legal meaning under Philippine jurisprudence. which is originally vested by the University Charter with the power of appointment. as used in letters of appointment signed by the President. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. the term “ad interim appointment”. an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. a Sword of Damocles over the heads of ad interim appointees. These resolutory conditions constitute.[32] this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. x x x. while the Board of Regents. an officer ad interim is one appointed to fill a vacancy.[28] where the Court stated: “We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. that is. Yorac.

The original draft of Section 16.“A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. BERNAS: X x x our compulsory recess now is only 30 days. It will also run counter to the clear intent of the framers of the Constitution. Borra and Tuason are expressly allowed by the Constitution which authorizes the President. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the President’s power to make ad interim appointments. They were not appointed or designated in a temporary or acting capacity. Bautista. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines. Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs.did not provide for ad interim appointments. considering that we are not certain of the length of involuntary recess or adjournment of the . which did not have a provision prohibiting temporary or acting appointments to the COMELEC. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. Borra and Tuason were extended permanent appointments during the recess of Congress.” (Emphasis supplied) In the instant case. xxx MS. this provision should be harmonized with the President’s power to extend ad interim appointments. purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily. foremost among which is the security of tenure of its members. The following discussion during the deliberations of the Constitutional Commission elucidates this: “FR. the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. will not be estopped from challenging its withdrawal. subject only to confirmation by the Commission on Appointments. We declared then: “It would be more in keeping with the intent. Benipayo. While the Constitution mandates that the COMELEC “shall be independent”[36].” Earlier. So under such circumstances. However. unlike Commissioner Haydee Yorac in Brillantes vs. the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC. the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. Bautista. in Nacionalista Party vs. No cause need be established to justify its revocation. It is doubtful if the respondent. having accepted such designation. to make appointments that take effect immediately. this might present problems in terms of anticipating interruption of government business. xxx The Constitution provides for many safeguards to the independence of the Commission on Elections. because of the need to avoid disruptions in essential government services. is it necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that.[35] The ad interim appointments of Benipayo. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law.[33] a case decided under the 1935 Constitution. during the recess of Congress. Article VII of the Constitution on the nomination of officers subject to confirmation by the Commission on Appointments . Assuming its validity. AQUINO: My concern is that unless this problem is addressed.

[42] The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections.[38] decided under the 1935 Constitution. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15. . Justice Bernardo P. 2001. This is otherwise called the ad interim appointments. In his concurring opinion in Guevara vs. 2001. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. of the involuntary adjournment of the Congress which is 30 days. regardless of the date of their actual appointment. Chairperson Demetriou and Commissioner Flores vacated their offices on February 2. 2000 to serve. the terms of office of three Commissioners of the COMELEC. Desamito was November 3.” (Emphasis supplied) Indeed. the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments. the evil sought to be avoided – interruption in the discharge of essential functions – may take place. 2002. Commission on Appointments. the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2. Inocentes. To their credit. with national elections looming less than three and onehalf months away. By this reckoning. Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16. Jr. I wonder if the Commissioner has a formula x x x. 2002. but we cannot leave to conjecture the matter of involuntary recess. the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices. 2000. Upon the other hand.[39] promulgated on December 13.[40] Then COMELEC Chairperson Harriet O. xxx THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon. the timely application of the last sentence of Section 16. FR. but we are trying to look for a formula. the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS. Justice Roberto Concepcion. Demetriou was appointed only on January 11. until February 15. Suddenly and unexpectedly. including the Chairman. would end on February 2. Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. explained the rationale behind ad interimappointments in this manner: “Now. pursuant to her appointment papers. xxx MR. why is the lifetime of ad interim appointments so limited? Because. adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none. there were three vacancies in the seven-person COMELEC. Pardo.Congress. while that of Commissioner Julio F. Following the decision of this Court in Gaminde vs. 1987. who was elevated to this Court. however. BERNAS: That is correct. including the three constitutional commissions. We are certain. the date of ratification of the Constitution. if they expired before the session of Congress. the amendment is approved.”[37] (Emphasis supplied) Clearly. once Congress has adjourned. BENGZON: Madam President. because of the Gaminde ruling.[41] the original expiry date of the term of her predecessor. 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation. apropos of the matter raised by Commissioner Aquino and after conferring with the Committee.

Under the second paragraph of Section 16. since under the Constitution motions for reconsideration “shall be decided by the Commission en banc”. the President may nominate the prospective appointee. Considering that the Constitution requires that “all x x x election cases shall be heard and decided in division”. 2001. the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office. 2001. 2001.[45] Concededly. Former President Corazon Aquino issued an ad interimappointment to Commissioner Alfredo E. Moreover. Guiani. Commissioner Desamito also vacated his office on February 2.from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. Reyes-Claravall and Manolo F.In a Manifestation[43] dated December 28. the mere absence of one of the four remaining members would have prevented a quorum. Commissioner Desamito chose to file a petition for intervention[44] in the Gaminde case but this Court denied the intervention. there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for reelection. the Eleventh Congress adjourned from January 9. Japal M. The successful conduct of the May 2001 national elections. 2001 elections. Luzviminda Tancangco. however. Thus. Abueg. Second. Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. Lantion.[46] the remaining one division would have been swamped with election cases. 2001. In 2001. Article VII of the Constitution. and pending consent of the Commission on Appointments. during the recess of Congress. Marohombsar. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power. Article VII of the Constitution. Ramos extended ad interim appointments to Commissioners Julio F. Mehol K. [48] Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. This situation. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. which has not been shown in the instant case. absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. 2001 to June 3. while Congress is in session. as a tradeoff against the evil of disruptions in vital government services. the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. right after the tumultuous EDSA II and EDSA III events. 2000 filed with this Court in the Gaminde case. Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC. This is also part of the check-and-balance under the separation of . a less than ideal situation considering that the Commissioners are expected to travel around the country before. was certainly essential in safeguarding and strengthening our democracy. The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. During an election year. there was no more time for Benipayo. Borra and Tuason. Gorospe. First. Graduacion A. to be confirmed by the Commission on Appointments before the May 14. the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16. as she believed any delay in choosing her successor might create a “constitutional crisis” in view of the proximity of the May 2001 national elections. The Constitution itself sanctions this situation.[47] Former President Fidel V. Evidently. who were originally extended ad interim appointments only on March 22. If Benipayo. Desamito. the nominee cannot qualify and assume office. during and after the elections. Chairperson Demetriou stated that she was vacating her office on February 2. Sadain and Ralph C. is only for a short period .[49] The President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers.

and not one President will appoint all the COMELEC members. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Borra and Tuason are constitutional. and promulgates its own rules on pleadings and practice. The disapproval is a decision on the merits. In this instance. being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. does not compromise the independence of the COMELEC as a constitutional body. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. respectively.[52] The COMELEC enjoys fiscal autonomy. which provides as follows: Third Issue: The Constitutionality of Renewals of Appointments Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo. three Members shall hold office for seven years. term of seven years without reappointment. the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2). as COMELEC Chairman and Commissioners. two Members for five years. which is the situation of Benipayo. The special constitutional safeguards that insure the independence of the COMELEC remain in place. This is recognized in Section 17 of the Rules of the Commission on Appointments. Of those first appointed. but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. Article IX-C of the Constitution. Since the Constitution does not provide for any appeal from such decision. Article IX-C of the Constitution. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments. we rule that the ad interim appointments extended by the President to Benipayo. Borra and Tuason. comprising a majority. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. who could now be removed from office only by impeachment. however. Absent such decision. and the last members for three years. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President.” (Emphasis supplied) Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments. Article IX-C of the Constitution which prohibits reappointments. as a trade-off against the evil of granting the President absolute and sole power to appoint. X x x. his ad interim appointment can no longer be renewed because this will violate Section 1 (2). do not constitute temporary or acting appointments prohibited by Section 1 (2). appoints its own officials and employees. This situation. the Commission on Appointments had long confirmed four[51] of the incumbent COMELEC members. the President can no longer renew the appointment not because of the constitutional prohibition on reappointment. the disapproval is final and binding on the appointee as well as on the appointing power.[50] In the instant case. The Constitution has wisely subjected the President’s appointing power to the checking power of the legislature. which provides as follows: “The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a . In fine. the salaries of COMELEC members cannot be decreased during their tenure.powers. Borra and Tuason if their ad interim appointments are deemed permanent in character. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. Petitioner asserts that this is particularly true to permanent appointees who have assumed office. the President is free to renew the ad interim appointment of a by-passed appointee.without reappointment. Moreover.

serves a part of his term and then resigns before his seven-year term of office ends. Section 1 (2). The prohibition on reappointment in Section 1 (2). It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. simply because the President may then issue new appointments . Unacted Nominations or Appointments Returned to the President. serves his full seven-year term. Such person cannot be reappointed. Jr. also. and the appointee completes the unexpired term.“Section 17. then the President could no longer appoint those so by-passed by the Commission. and such new appointment will not result in the appointee serving beyond the fixed term of seven years. unless new nominations or appointments are made. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto. Article IX-C of the Constitution. whether as a member or as a chair. It ceases. for. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16.” (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16.” (Emphasis supplied) There are four situations where this provision will apply. shall not again be considered by the Commission. and not because a reappointment is prohibited under Section 1 (2). Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned. Article VII of the Constitution. The second situation is where the appointee.[54] The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. thus: “In short. Article VII of the present Constitution on ad interimappointments was lifted verbatim. upon “the next adjournment of the Congress”. after confirmation. thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission. under the Constitution. after confirmation by the Commission on Appointments. but the circumstance that upon said adjournment of the Congress. interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President. to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. lucidly explained in his concurring opinion in Guevara vs.” (Emphasis supplied) Hence. Article IX-C of the Constitution provides that “[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment. Justice Roberto Concepcion. an ad interim appointment ceases to be effective upon disapproval by the Commission. because the incumbent can not continue holding office over the positive objection of the Commission. whether as a member or chair. Inocentes[53] why by-passed ad interim appointees could be extended new appointments. Article VII of the Constitution. the Commission may affect adversely the interim appointments only by action. Such person cannot be reappointed. whether as a member or as a chairman. the President is free to make ad interim appointments or reappointments. Such person cannot be reappointed to the COMELEC.not because of implied disapproval of the Commission deduced from its inaction during the session of Congress. under the Rules of the Commission on Appointments. This is a continuation of the wellrecognized practice under the 1935 Constitution. . the fact is that the President may reappoint them. to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. But. The first situation is where an ad interim appointee to the COMELEC. because he will then be actually serving more than seven years. never by omission. a bypassed appointment can be considered again if the President renews the appointment. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16. The established practice under the present Constitution is that the President can renew the appointments of bypassed ad interimappointees.

”[55] (Emphasis supplied) In Visarra vs. quoted Nacionalista vs. To hold otherwise will lead to absurdities and negate the President’s power to make ad interim appointments. De Vera[57] that a “[r]eappointment is not prohibited when a Commissioner has held office only for. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years. then it is possible that an interpretation could be made later on their case. in his concurring opinion. three or six years. a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2). Article IX-C of the present Constitution. to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years. it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. and a vacancy arises from death or resignation. This will nullify the constitutional power of the President to make ad interimappointments. a truncated term of five or three years. we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. This interpretation renders inutile the confirming power of the Commission on Appointments. Miraflor. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term.” This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member “shall hold office for a term of nine years and may not be reappointed. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments.The fourth situation is where the appointee has previously served a term of less than seven years. the Commission on Appointments usually fails to act. but are barred from ever being reappointed under any situation. the phrase “without reappointment” appears twice in Section 1 (2). Article IX-C of the Constitution. This Court cannot .” To foreclose this interpretation. Not one of these four situations applies to the case of Benipayo. provided his term will not exceed nine years in all. on the ad interim appointments first issued to appointees. the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. he would be entitled to reappointment. The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments. an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. Precisely. In the great majority of cases. whether or not such person completes his term of office. say. Commissioner Foz succinctly explained this intent in this manner: “MR. FOZ.[56] Justice Angelo Bautista. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. Even if it will not result in his serving more than seven years. Miraflor. If such ad interim appointments can no longer be renewed. Unless we put the qualifying words “without reappointment” in the case of those appointed. they can still be reappointed to serve for a total of seven years. or even for an unexpired term of any length of time – can no longer be reappointed to the COMELEC. for lack of time. But in cases where the appointee serves only for less than seven years. no reappointment can be made. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. a power intended to avoid disruptions in vital government services. However. The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member – whether for a full term of seven years. Borra or Tuason. In either case.

The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary. therefore as a whole there is no way that somebody can serve for more than seven years. May I call the sponsor’s attention. in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. On the other hand."[61] (Emphasis supplied) Plainly. if I may use the term. and then in 1980. from the past administration.”[60] (Emphasis supplied) Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner: "MR. who sponsored[58]the proposed articles on the three constitutional commissions. if we follow that appointment to (its) logical conclusion. First. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. he occupied that position for about 12 years in violation of the Constitution? MR. If the (Commissioner) will read the whole Article.subscribe to a proposition that will wreak havoc on vital government services. the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. Madam President. As reported in the Journal of the Constitutional Commission. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980. MONSOD. Foz. The framers of the present Constitution prohibited reappointments for two reasons. The following exchange in the deliberations of the Constitutional Commission is instructive: “MR. as discussed earlier. the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. The prohibition on reappointment is common to the three constitutional commissions. she will notice that there is no reappointment of any kind and. the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term. FOZ: It is only one of the considerations. and 4) appointments of members would not require confirmation. to wit: “Mr. outlined the four important features of the proposed articles. So. first of all.”[59] (Emphasis supplied) There were two important amendments subsequently made by the Constitutional Commission to these four features. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond 7 years. Second. to Section 2 (2) on the Civil Service Commission wherein it is stated: “In no case shall any Member be appointed in a temporary or acting capacity. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities. Commissioner Vicente B.” I detect in the Committee’s proposed resolutions a constitutional hangover. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions. 3) prohibition to decrease salaries of the members of the Commissions during their term of office. SUAREZ: These are only clarificatory questions. was appointed as Chairman with a tenure of another 7 years. 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency. the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total term of office exceeding seven .

as shown in the following discussion in the Constitutional Commission: “MR. Presiding Officer. we should specifically place the word so that there will be no more ambiguity. MR. So. THE PRESIDING OFFICER (Mr. Borra and Tuason are for a fixed term expiring on February 2. Consequently. for so long as their terms of office expire on February 2. The evils sought to be avoided by the twin prohibitions are very specific . I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. DE LOS REYES: Mr. 2008. between the words “appointed” and “in”. The sentence reads: “In no case shall any Member be appointed in a temporary or acting capacity. Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. the word “designated” was inserted to plug any loophole that might be exploited by violators of the Constitution. does not violate the prohibition on reappointments in Section 1 (2). DE LOS REYES: Thank you. that Benipayo is the de jure COMELEC Chairman. 2008. Presiding Officer. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo. petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal.” MR. the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. can authorize such reassignment. Article IX-C of the Constitution. the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. The continuing renewal of the ad interim appointment of these three respondents. The Gentleman will recall that in the case of Commissioner on Audit Tantuico.” THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say? MR.” MR. in order to erase that distinction between appointment and designation. “In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity. Trenas): Is there any objection? (Silence) The Chair hears none. however.years. Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Mr. Not contented with these ironclad twin prohibitions.”[62] The ad interim appointments and subsequent renewals of appointments of Benipayo. We have ruled. DE LOS REYES: On line 32.[63] Any delay in their confirmation will not extend the expiry date of their terms of office. Thus. Petitioner further argues that only the COMELEC. I propose to insert the words OR DESIGNATED so that the whole sentence will read: “In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity. and consequently he has full authority to . the amendment is approved.reappointment of any kind and exceeding one’s term in office beyond the maximum period of seven years. Moreover. there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. A reappointment presupposes a previous confirmed appointment. FOZ: But it changes the meaning of this sentence. acting as a collegial body. FOZ: The amendment is accepted.

the Chairman of the COMELEC is vested with the following power: “Section 7. and she can claim no security of tenure in respect of that position. Chapter 2. Powers and Duties. which in turn depends on his eligibility or lack of it.exercise all the powers of that office for so long as his ad interim appointment remains effective. [65] Obviously. Prohibited Acts. Macaraig: ‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the requirements for the position to which he is being appointed. or as an exception to the rule. which provides as follows: “Section 261. Josefina G. the Chairman is not required by law to secure the approval of the COMELEC en banc.” (Emphasis supplied) The Chairman. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place. Under Section 7 (4). Atty.[64] Petitioner is not a Career Executive Service (CES) officer. therefore. Still. which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. conformably to established jurisprudence x x x. including the appropriate eligibility prescribed. his appointment could be regarded only as temporary. At best. In the exercise of this power. indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. February 15. Chairman as Executive Officer. who shall be the Chief Executive Officer of the Commission. is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. 1999. Bacal. rotate and transfer personnel in accordance with the provisions of the Civil Service Law. petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. Petitioner’s appointment papers dated February 2. shall: xxx (4) Make temporary assignments. attached as Annexes “X“. and neither does she hold Career Executive Service Eligibility. as the Chief Executive of the COMELEC. as a prohibited act under Section 261 (h) of the Omnibus Election Code. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil . her appointment to that position cannot be considered permanent. As held in Achacoso v. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x.[66] this Court held that: “As respondent does not have the rank appropriate for the position of Chief Public Attorney. Such right will have to depend on the nature of his appointment. InSecretary of Justice Serafin Cuevas vs. And being so. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles.’ Achacoso did not. and not possessed of the necessary qualifications to hold the position of Director IV. The Chairman. “Y” and “Z” to her Petition. Subtitle C. 2000 and February 15.’” Having been appointed merely in a temporary or acting capacity. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. This time. Book V of the Revised Administrative Code. carried out during the election period. petitioner assails her reassignment. it could be withdrawn at will by the appointing authority and ‘at a moment’s notice’. petitioner does not enjoy security of tenure as Director IV. 2001.

the COMELEC did in fact issue COMELEC Resolution No. in COMELEC Resolution No.[69] the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. [68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. there is an urgent need to appoint. within the election period except upon prior approval of the Commission. 3300. making the resolution utterly useless. Contrary to petitioner’s allegation. within the election period except upon approval of the Commission. requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day. Prohibited Acts. “NOW. orderly. COMELEC Resolution No. honest. Interpreting Resolution No. the Commission on Elections by virtue of the powers conferred upon it by the Constitution. petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free. as an exception to the foregoing prohibitions. to appoint. provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing. of the Omnibus Election Code provides as follows: xxx Sec. Sec.service including public school teachers. The resolution states in part: “WHEREAS. hire new employees or fill new positions and transfer or reassign its personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 261. 56 and Sec. paragraphs (g) and (h). The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service – Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers. Under the Revised Administrative Code. is Benipayo. as it is hereby RESOLVED. 3300 should be interpreted for what it is.[67] Moreover. peaceful and credible elections. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment. 3300 dated November 6. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code. approved the transfer or reassignment of COMELEC personnel during the . when necessary in the effective performance of its mandated functions during the prohibited period. THEREFORE. has RESOLVED. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office. the Omnibus Election Code and other election laws. an act the COMELEC en banc cannot legally do. The COMELEC en banc. refers only to COMELEC field personnel and not to head office personnel like the petitioner. 2000. 3300. the aforequoted provisions are applicable to the national and local elections on May 14. Resolution No. 3300.” (Emphasis supplied) The proviso in COMELEC Resolution No. WHEREAS. WHEREAS. without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. an approval to effect transfers and reassignments of personnel. 261. 2001.” Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. in a de jurecapacity.

JJ. Benipayo’s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. JJ. Ynares-Santiago. De Guzman. Jr.. C.. Mendoza. De Leon.. For the same reason. . did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo. WHEREFORE. Thus. on official leave. Quisumbing. Davide. respondent Gideon C. Officer-in-Charge of the Finance Services Department of the Commission on Elections.. SO ORDERED. and Sandoval-Gutierrez. Borra. Panganiban. Tuason and Cinco. Kapunan. Puno.. Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally unassailable.J. the petition is dismissed for lack of merit. Bellosillo. Jr. Fifth Issue: Legality of Disbursements to Respondents Based on the foregoing discussion.election period. and Vitug. Melo. concur. Costs against petitioner.

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