G.R. No.

171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY

L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI,
ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

FACT:

 On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency.
 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.

Proof of Conspiracy:
 On January 17, 2006, 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.
 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),
 On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect.
 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.
  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.
 Respondents further claimed that the bombing of telecommunication towers and
cell sites in Bulacan and Bataan was also considered as additional factual basis

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.
 Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. According to petitioner Kilusang
Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
assemblies.
 During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.
 At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of
PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mock-ups
of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building. 13
 Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño
and Gabriela Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned
over to the custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.

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

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

ISSUE: WON Proclamation 1017 is constitutional.

RULING:

Yes, Proclamation 1017 is constitutional.

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

First provision:

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

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v.

Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section
18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

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

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

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

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

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

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

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

authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyo’s authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a

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

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of

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

The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order and
the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114 an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It
is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:

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

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.

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

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier.

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

No costs.

SO ORDERED.