FIRST DIVISION

[G.R. No. L-31195. June 5, 1973.]

PHILIPPINE BLOOMING MILLS EMPLOYEES ORGANIZATION, NICANOR TOLENTINO,
FLORENCIO PADRIGANO, RUFINO, ROXAS, MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners, vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS,
respondents.
L. S. Osorio & P. B. Castillon and J . C . Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
DECISION
MAKASIAR, J p:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to
as PBMEO) is a legitimate labor union. composed of the employees of the respondent
Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino, Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at
Malacañang on March 4, 1969, in protest against alleged abuses of the Pasig police, to be
participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in
the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M.,
respectively); and that they informed the respondent Company of their proposed
demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador
of the respondent Court reproduced the following stipulation of facts of the parties —
parties —
"3. That on March 2, 1969 complainant company learned of the projected mass
demonstration at Malacanang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM - 2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the
morning of March 4, 1969;
"4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthus L.
Ang, (2) Atty. Cesareo S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO: (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
"5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO, thru Benjamin Pagcu who acted
as spokesman of the union panel, confirmed the planned demonstration and stated that
the demonstration or rally cannot be cancelled because it has already been agreed upon
in the meeting. Pagcu explained further that the demonstration has nothing to do with the
Company because the union has no quarrel or dispute with Management;
"6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which reason, the Company,
thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of the demonstration,
who shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
"7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor
Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacanang demonstration, the
workers for the first and regular shift of March 4, 1969 should be excused from joining
the demonstration and should report for work; and thus utilize the workers in the 2nd
and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV:
'NO LOCKOUT — NO STRIKE'. All those who will not follow this warning of the Company
shall be dismissed; De Leon reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans inasmuch as the Malacanang
demonstration will be held the following morning; and
"8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9.50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.'" (Pars. 3-8, Annex "F", pp. 42-43, rec.).
Because the petitioners and their members numbering about 400 proceeded with the
demonstration despite the pleas of the respondent Company that the first shift workers
should not be required to participate in the demonstration and that the workers in the
second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on
M[arch 4, 1969, respondent Company filed on March 4, 1969, with the respondent Court,
a charge against petitioners and other employees who composed the first shift, charging
them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section
15, all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.'"
(Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of Arthur
L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding
complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona
and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.).
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the
existing CBA because they gave the respondent Company prior notice of the mass
demonstration on March 4, 1969; that the said mass demonstration was a valid exercise
of their constitutional freedom of speech against the alleged abuses of some Pasig
policemen; and that their mass demonstration was not a declaration of strike because it
was not directed against the respondent firm (Annex "D", pp. 31-34, rec.).
After considering the aforementioned stipulation of facts submitted by the parties, Judge
Joaquin M. Salvador, in an order dated September 15, 1969, found herein petitioner
PBMEO guilty of bargaining in bad faith and herein petitioners Florencio Padrigano,
Rufino Roxas Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu,
Nicanor Tolentino and Rodulfo Munsod as directly responsible for perpetrating the said
unfair labor practice and were, as a consequence, considered to have lost their status as
employees of the respondent Company (Annex "F", pp. 42-56, rec.).
Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p.
11, rec.); and that they filed on September 29, 1969, because September 28, 1969 fell on
Sunday (p. 59, rec.), a motion for reconsideration of said order dated September 15, 1969,
on the ground that it is contrary to law and the evidence, as well as asked for ten (10) days
within which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules of
the CIR, as amended (Annex "G", pp. 57-60, rec.).
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent
Company averred that herein petitioners received on September 22, 1969, the order dated
September 17 (should be September 15), 1969; that under Section 15 of the amended
Rules of the Court of Industrial Relations, herein petitioners had five (5) days from
September 22, 1969 or until September 27, 1969, within which to file their motion for
reconsideration; and that because their motion for reconsideration was two (2) days late,
it should be accordingly dismissed, invoking Bien vs. Castillo, 1 which held among others,
that a motion for extension of the five-day period for the filing of a motion for
reconsideration should be filed before the said five-day period elapses (Annex "M", pp. 61-
64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated
October 11, 1969, in support of their motion for reconsideration (Annex "I", pp. 65-73,
rec.).
In a resolution dated October 9, 1969, the respondent Court en banc dismissed the motion
for reconsideration of herein petitioners for being pro forma as it was filed beyond the
reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein
petitioners received on October 28, 1969 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released on
October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear
the requirements of Sections 15, 16 and 17, as amended, of the Rules of the Court of
Industrial Relations, that a motion for reconsideration shall be filed within five (5) days
from receipt of its decision or order and that an appeal from the decision, resolution or
order of the C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt
thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for relief
from the order dated October 9, 1969, on the ground that their failure to file their motion
for reconsideration on time was due to excusable negligence and honest mistake
committed by the president of the petitioner Union and of the office clerk of their counsel,
attaching thereto the affidavits of the said president and clerk (Annexes "K", "K-1" and "K-
2", rec.).
Without waiting for any resolution on their petition for relief from the order dated October
9, 1969, herein petitioners filed on November 3, 1969, with the Supreme Court, a notice
of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which underlie the issues
posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of the
human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security
"against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, and the scorn and derision of those who have no patience with
general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to
withdraw "certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty and property, to free speech, or free
press, freedom of worship and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no elections." 4 Laski proclaimed that
"the happiness of the individual, not the well-being of the State, was the criterion by which
its behaviour was to be judged. His interests, not its power, set the limits to the authority
it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the
ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to
talk, but also to benefit the majority who refuse to listen. 6 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are
not safe unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment. Thru these freedoms the citizens can participate not merely
in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized. 8 Because these freedoms are "delicate and vulnerable,
as well as supremely precious in our society" and the "threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions," they "need breathing
space to survive," permitting government regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an efficacious
shield against the tyranny of officials, of majorities, of the influential and powerful, and of
oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; 10 and such priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a
mere reasonable or rational relation between the means employed by the law and its object
or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would
suffice to validate a law which restricts or impairs property rights. 12 On the other hand,
a constitutional or valid infringement of human rights requires a more stringent criterion,
namely existence of a grave and immediate danger of a substantive evil which the State
has the right to prevent. So it has been stressed in the main opinion of Mr. Justice
Fernando in Gonzales vs. Comelec and reiterated by the writer of the opinion in Imbong
vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra,
like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that
the freedoms of speech and of the press as well as of peaceful assembly and of petition for
redress of grievances are absolute when directed against public officials or "when exercised
in relation to our right to choose the men and women by whom we shall be governed," 15
even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand,
viz. — whether the gravity of the evil, discounted by its improbability, justifies such
invasion of free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass demonstration
was not a declaration of strike, concluded that by their "concerted act and the occurrence
of a temporary stoppage of work," herein petitioners are guilty of bargaining in bad faith
and hence violated the collective bargaining agreement with private respondent Philippine
Blooming Mills Co., Inc. Set against and tested by the foregoing principles governing a
democratic society, such a conclusion cannot be sustained. The demonstration held by
petitioners on March 4, 1969 before Malacanang was against alleged abuses of some Pasig
policemen, not against their employer, herein private respondent firm, said demonstration
was purely and completely an exercise of their freedom of expression in general and of
their right of assembly and of petition for redress of grievances in particular before the
appropriate governmental agency, the Chief Executive, against the police officers of the
municipality of Pasig. They exercised their civil and political rights for their mutual aid
and protection from what they believe were police excesses. As a matter of fact, it was the
duty of herein private respondent firm to protect herein petitioner Union and its members
from the harassment of local police officers. It was to the interest of herein private
respondent firm to rally to the defense of, and to take up the cudgels for, its employees,
so that they can report to work free from harassment, vexation or peril and as a
consequence perform more efficiently their respective tasks to enhance its productivity as
well as profits. Herein respondent employer did not even offer to intercede for its employees
with the local police. Was it securing peace for itself at the expense of its workers? Was it
also intimidated by the local police or did it encourage the local police to terrorize or vex
its workers? Its failure to defend its own employees all the more weakened the position of
its laborers vis-a-vis the alleged oppressive police, who might have been all the more
emboldened thereby to subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression as well as their right of assembly
and of petition against alleged persecution of local officialdom, the employees and laborers
of herein private respondent firm were fighting for their very survival, utilizing only the
weapons afforded them by the Constitution — the untrammelled enjoyment of their basic
human rights. The pretension of their employer that it would suffer loss or damage by
reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the
afternoon, is a plea for the preservation merely of their property rights. Such apprehended
loss or damage would not spell the difference between the life and death of the firm or its
owners or its management. The employees' pathetic situation was a stark reality —
abused, harassed and persecuted as they believed they were by the peace officers of the
municipality. As above intimated, the condition in which the employees found themselves
vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual
existence as well as that of their families. Material loss can be repaired or adequately
compensated. The debasement of the human being — broken in morale and brutalized in
spirit — can never be fully evaluated in monetary terms. The wounds fester and the scars
remain to humiliate him to his dying day, even as he cries in anguish for retribution,
denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of expression, of peaceful
assembly and of petition for redress of grievances — over property rights has been
sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon — at once the
shield and armor of the dignity and worth of the human personality, the all-consuming
ideal of our enlightened civilization — becomes Our duty, if freedom and social justice
have any meaning at all for him who toils so that capital can produce economic goods that
can generate happiness for all. To regard the demonstration against police officers, not
against the employer, as evidence of bad faith in collective bargaining and hence a violation
of the collective bargaining agreement and a cause for the dismissal from employment of
the demonstrating employees, stretches unduly the compass of the collective bargaining
agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well
as mortal wound on the constitutional guarantees of free expression, of peaceful assembly
and of petition. 19
The collective bargaining agreement which fixes the working shifts of the employees,
according to the respondent Court of Industrial Relations, in effect imposes on the workers
the "duty . . . to observe regular working hours." The strained construction of the Court of
Industrial Relations that such stipulated working shifts deny the workers the right to stage
a mass demonstration against police abuses during working hours, constitutes a virtual
tyranny over the mind and life of the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been
legally enjoined by any court, for such an injunction would be trenching upon the freedom
of expression of the workers, even if it legally appears to be an illegal picketing or strike.
20 The respondent Court of Industrial Relations in the case at bar concedes that the mass
demonstration was not a declaration of a strike "as the same is not rooted in any industrial
dispute although there is a concerted act and the occurrence of a temporary stoppage of
work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate in
the demonstration and that they suggested to the Union that only the first and regular
shift from 6 A.M. to 2 P.M. should report for work in order that loss or damage to the firm
will be averted. This stand failed to appreciate the sine qua non of an effective
demonstration especially by a labor union, namely the complete unity of the Union
members as well as their total presence at the demonstration site in order to generate the
maximum sympathy for the validity of their cause but also immediate action on the part
of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression. 21 If
demonstrators are reduced by one-third, then by that much the circulation of the issues
raised by the demonstration is diminished. The more the participants, the more persons
can be apprised of the purpose of the rally. Moreover, the absence of one-third of their
members will be regarded as a substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police persecution. At any rate, the
Union notified the company two days in advance of their projected demonstration and the
company could have made arrangements to counteract or prevent whatever losses it might
sustain by reason of the absence of its workers for one day, especially in this case when
the Union requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their telegram
received by the company at 9:50 in the morning of March 4, 1969, the day of the mass
demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion
on the part of the firm in rejecting the request of the Union for excuse from work for the
day shifts in order to carry out its mass demonstration. And to regard as a ground for
dismissal the mass demonstration held against the Pasig police, not against the company,
is gross vindictiveness on the part of the employer, which is as unchristian as it is
unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal on
the part of the respondent firm to permit all its employees and workers to join the mass
demonstration against alleged police abuses and the subsequent separation of the eight
(8) petitioners from the service constituted an unconstitutional restraint on their freedom
of expression, freedom of assembly and freedom to petition for redress of grievances, the
respondent firm committed an unfair labor practice defined in Section 4(a-1) in relation to
Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3
of Republic Act No. 875 guarantees to the employees the right "to engage in concerted
activities for . . . mutual aid or protection"; while Section 4(a-1) regards as an unfair labor
practice for an employer "to interfere with, restrain or coerce employees in the exercise of
their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers of
the respondent firm on March 4, 1969, was for their mutual aid and protection against
alleged police abuses, denial of which was interference with or restraint on the right of the
employees to engage in such a common action to better shield themselves against such
alleged police indignities. The insistence on the part of the respondent firm that the
workers for the morning and regular shifts should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent means of
inhibiting speech." 22
Such a concerted action for their mutual help and protection, deserves at least equal
protection as the concerted action of employees in giving publicity to a letter complaint
charging a bank president with immorality, nepotism, favoritism and discrimination in the
appointment and promotion of bank employees. 23 We further ruled in the Republic
Savings Bank case, supra, that for the employees to come within the protective mantle of
Section 3 in relation to Section 4(a-1) of Republic Act No. 875, "it is not necessary that
union activity be involved or that collective bargaining be contemplated," as long as the
concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of respondent
Court dated September 15, 1969, the company, "while expressly acknowledging, that the
demonstration is an inalienable right of the Union guaranteed by the Constitution,"
nonetheless emphasized that "any demonstration for that matter should not unduly
prejudice the normal operation of the company" and "warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without previous leave of
absence approved by the Company, particularly the officers present who are the organizers
of the demonstration, who shall fail to report for work the following morning (March 4,
1969) shall be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat
of dismissal tended to coerce the employees from joining the mass demonstration.
However, the issues that the employees raised against the local police, were more
important to them because they had the courage to proceed with the demonstration,
despite such threat of dismissal. The most that could happen to them was to lose a day's
wage by reason of their absence from work on the day of the demonstration. One day's
pay means much to a laborer, more especially if he has a family to support. Yet, they were
willing to forego their one-day salary hoping that their demonstration would bring about
the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right
to petition for redress.
Because the respondent company ostensibly did not find it necessary to demand from the
workers proof of the truth of the alleged abuses inflicted on them by the local police, it
thereby concedes that the evidence of such abuses should properly be submitted to the
corresponding authorities having jurisdiction over their complaint and to whom such
complaint may be referred by the President of the Philippines for proper investigation and
action with a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the
demonstration "paralyzed to a large extent the operations of the complainant company,"
the respondent Court of Industrial Relations did not make any finding as to the fact of loss
actually sustained by the firm. This significant circumstance can only mean that the firm
did not sustain any loss or damage. It did not present evidence as to whether it lost
expected profits for failure to comply with purchase orders on that day; or that penalties
were exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products
were damaged due to absence of its workers on March 4, 1969. On the contrary, the
company saved a sizable amount in the form of wages for its hundreds of workers, cost of
fuel, water and electric consumption that day. Such savings could have amply
compensated for unrealized profits or damages it might have sustained by reason of the
absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as well as
the right to petition for redress of grievances of the employees, the dismissal of the eight
(8) leaders of the workers for proceeding with the demonstration and consequently being
absent from work, constitutes a denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5 of Article II of the Constitution
imposes upon the State "the promotion of social justice to insure the well-being and
economic security of all of the people," which guarantee is emphasized by the other
directive in Section 6 of Article XIV of the Constitution that "the State shall afford
protection to labor . . ." Respondent Court of Industrial Relations as an agency of the State
is under obligation at all times to give meaning and substance to these constitutional
guarantees in favor of the working man; for otherwise these constitutional safeguards
would be merely a lot of "meaningless constitutional patter." Under the Industrial Peace
Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate
the causes of industrial unrest by encouraging and protecting the exercise by employees
of their right to self-organization for the purpose of collective bargaining and for the
promotion of their moral, social and economic well-being." It is most unfortunate in the
case at bar that respondent Court of Industrial Relations, the very governmental agency
designed therefor, failed to implement this policy and failed to keep faith with its avowed
mission — its raison d'etre — as ordained and directed by the Constitution.
V
It has been likewise established that a violation of a constitutional right divests the court
of jurisdiction; and as a consequence its judgment is null and void and confers no rights.
Relief from a criminal conviction secured at the sacrifice of constitutional liberties, may
be obtained through habeas corpus proceedings even long after the finality of the
judgment. Thus, habeas corpus is the remedy to obtain the release of an individual, who
is convicted by final judgment through a forced confession, which violated his
constitutional right against self-incrimination; 25 or who is denied the right to present
evidence in his defense as a deprivation of his liberty without due process of law, 26 even
after the accused has already served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights
and aggravated the inhumanity to which the aggrieved workers claimed they had been
subjected by the municipal police. Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself of jurisdiction and the questioned
orders it issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as private
citizens and corporations, the exercise and enjoyment of which must not be nullified by a
mere procedural rule promulgated by the Court of Industrial Relations exercising a purely
delegated legislative power, when even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights. There is no time limit to the exercise of
these freedoms. The right to enjoy them is not exhausted by the delivery of one speech,
the printing of one article or the staging of one demonstration. It is a continuing immunity,
to be invoked and exercised when exigent and expedient whenever there are errors to be
rectified, abuses to be denounced, inhumanities to be condemned. Otherwise, these
guarantees in the Bill of Rights would be vitiated by a rule on procedure prescribing the
period for appeal. The battle then would be reduced to a race for time. And in such a
contest between an employer and its laborer, the latter eventually loses because he cannot
employ the best and dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent
legal services. 28a
VI
The Court of Industrial Relations rule prescribes that a motion for reconsideration of its
order or writ should be filed within five (5) days from notice thereof and that the arguments
in support of said motion shall be filed within ten (10) days from the date of filing of such
motion for reconsideration (Sec. 16). As above intimated, these rules of procedure were
promulgated by the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days from
notice on September 22, 1969 of the order dated September 15, 1969 or two (2) days late.
Petitioners claim that they could have filed it on September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late defeat
the rights of the petitioning employees? Or more directly and concretely, does the
inadvertent omission to comply with a mere Court of Industrial Relations procedural rule
governing the period for filing a motion for reconsideration or appeal in labor cases,
promulgated pursuant to a legislative delegation, prevail over constitutional rights? The
answer should be obvious in the light of the aforecited cases. To accord supremacy to the
foregoing rules of the Court of Industrial Relations over basic human rights sheltered by
the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and
regulations, but also does violence to natural reason and logic. The dominance and
superiority of the constitutional right over the aforesaid Court of Industrial Relations
procedural rule of necessity should be affirmed. Such a Court of Industrial Relations rule
as applied in this case does not implement or reinforce or strengthen the constitutional
rights affected, but instead constrict the same to the point of nullifying the enjoyment
thereof by the petitioning employees. Said Court of Industrial Relations rule, promulgated
as it was pursuant to a mere legislative delegation, is unreasonable and therefore is
beyond the authority granted by the Constitution and the law. A period of five (5) days
within which to file a motion for reconsideration is too short, especially for the aggrieved
workers, who usually do not have the ready funds to meet the necessary expenses therefor.
In case of the Court of Appeals and the Supreme Court, a period of fifteen (15) days has
been fixed for the filing of the motion for re hearing or reconsideration (Sec. 10, Rule 51;
Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September 28, 1969 was not a
Sunday. This fact accentuates the unreasonableness of the Court of Industrial Relations
rule insofar as circumstances of the instant case are concerned.
It should be stressed here that the motion for reconsideration dated September 27, 1969,
is based on the ground that the order sought to be reconsidered "is not in accordance with
law, evidence and facts adduced during the hearing," and likewise prays for an extension
of ten (10) days within which to file arguments pursuant to Sections 15, 16 and 11 of the
Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the
arguments were actually filed by the herein petitioners on October 14, 1969 (Annex "I",
pp. 70-73, rec.), long after the 10 day period required for the filing of such supporting
arguments counted from the filing of the motion for reconsideration. Herein petitioners
received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the reglementary
period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of
time, or where the arguments in support of such motion are filed beyond the 10 day
reglementary period provided for by the Court of Industrial Relations rules, the order or
decision subject of reconsideration becomes final and unappealable. 29a But in all these
cases, the constitutional rights of free expression, free assembly and petition were not
involved.
It is a procedural rule that generally all causes of action and defenses presently available
must be specifically raised in the complaint or answer; so that any cause of action or
defense not raised in such pleadings, is deemed waived. However, a constitutional issue
can be raised any time, even for the first time on appeal, if it appears that the
determination of the constitutional issue is necessary to a decision of the case, the very
lis mota of the case without the resolution of which no final and complete determination
of the dispute can be made. 30 It is thus seen that a procedural rule of Congress or of the
Supreme Court gives way to a constitutional right. In the instant case, the procedural rule
of the Court of Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the institution of the unfair
labor practice charged against them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the
organic law, is a most compelling reason to deny application of a Court of Industrial
Relations rule which impinges on such human rights. 30a
It is an accepted principle that the Supreme Court has the inherent power to "suspend its
own rules or to except a particular case from its operation, whenever the purposes of
justice require." 30b Mr. Justice Barredo in his concurring opinion in Estrada vs. Sto.
Domingo 30c reiterated this principle and added that
"Under this authority, this Court is enabled to cope with all situations without concerning
itself about procedural niceties that do not square with the need to do justice, in any case,
without further loss of time, provided that the right of the parties to a full day in court is
not substantially impaired. Thus, this Court may treat an appeal as a certiorari and vice-
versa. In other words, when all the material facts are spread in the records before Us, and
all the parties have been duly heard, it matters little that the error of the court a quo is of
judgment or of jurisdiction. We can then and there render the appropriate judgment. It is
within the contemplation of this doctrine that as it is perfectly legal and within the power
of this Court to strike down in an appeal acts without or in excess of jurisdiction or
committed with grave abuse of discretion, it cannot be beyond the ambit of its authority,
in appropriate cases, to reverse in a certain proceeding any error of judgment of a court a
quo which cannot be exactly categorized as a flow of jurisdiction. If there can be any doubt,
which I do not entertain, on whether or not the errors this Court has found in the decision
of the Court of Appeals are short of being jurisdictional nullities or excesses, this Court
would still be on firm legal grounds should it choose to reverse said decision here and now
even if such errors can be considered as mere mistakes of judgment or only as faults in
the exercise of jurisdiction, so as to avoid the unnecessary return of this case to the lower
courts for the sole purpose of pursuing the ordinary course of an appeal." (Italics supplied.)
30d
Insistence on the application of the questioned Court of Industrial Relations rule in this
particular case at bar would be an unreasoning adherence to "procedural niceties," which
denies justice to the herein laborers, whose basic human freedoms, including the right to
survive, must be accorded supremacy over the property rights of their employer firm,
which has been given a full hearing on this case, especially when, as in the case at bar,
no actual material damage has been demonstrated as having been inflicted on its property
rights.
If We can disregard our own rules when justice requires it, obedience to the Constitution
renders more imperative the suspension of a Court of Industrial Relations rule that clashes
with the human rights sanctioned and shielded with resolute concern by the specific
guarantees outlined in the organic law. It should be stressed that the application in the
instant case of Section 15 of the Court of Industrial Relations rules relied upon by herein
respondent firm, is unreasonable and therefore such application becomes
unconstitutional as it subverts the human rights of petitioning labor union and workers
in the light of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations rules
with reference to the case at bar, is also authorized by Section 20 of Commonwealth Act
No. 103, the C.I.R. charter, which enjoins the Court of Industrial Relations to "act
according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms . . ."
On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice
Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc.,
et. al., 30e thus:
"As to the point that the evidence being offered by the petitioners in the motion for new
trial is not 'newly discovered,' as such term is understood in the rules of procedure for the
ordinary courts, We hold that such criterion is not binding upon the Court of Industrial
Relations. Under Section 20 of Commonwealth Act No. 103, 'The Court of Industrial
Relations shall adopt its. rules or procedure and shall have such other powers as generally
pertain to a court of justice: Provided, however, That in the hearing, investigation and
determination of any question or controversy and in exercising any duties and power
under this Act, the Court shall act according to justice and equity and substantial merits
of the case, without regard to technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in such manner as it may deem
just and equitable.' By this provision, the industrial court is disengaged from the rigidity
of the technicalities applicable to ordinary courts. Said court is not even restricted to the
specific relief demanded by the parties but may issue such orders as may be deemed
necessary or expedient for the purpose of settling the dispute or dispelling any doubts that
may give rise to future disputes. (Ang Tibay v. C.I.R., G.R., No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We believe
that this provision is ample enough to have enabled the respondent court to consider
whether or not its previous ruling that petitioners constitute a minority was founded on
fact, without regard to the technical meaning of newly discovered evidence. . . . (Alonso v.
Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578)." (italics supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the
instant case is to rule in effect that the poor workers, who can ill-afford an alert and
competent lawyer, can no longer seek the sanctuary of the human freedoms secured to
them by the fundamental law, simply because their counsel — erroneously believing that
he received a copy of the decision on September 23, 1969, instead of September 22, 1969
— filed his motion for reconsideration on September 29, 1969, which practically is only
one day late, considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedural technicalities when they ceased to be
instruments of justice, for the attainment of which such rules have been devised.
Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta, 30f stated:
"As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910].
The Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84
Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, L-
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910, 'technicality, when it
deserts its proper office as an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts.' (Ibid., p, 322.) To that norm, this Court
has remained committed. The late Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936])
was of a similar mind. For him the interpretation of procedural rule should never 'sacrifice
the ends of justice.' While 'procedural laws are no other than technicalities' to view them
in their entirety, 'they were adopted not as ends in themselves for the compliance with
which courts have been organized and function, but as means conducive to the realization
of the administration of the law and of justice. (Ibid., p. 128). We have remained steadfastly
opposed, in the highly rhetorical language of Justice Felix, to 'a sacrifice of substantial
rights of a litigant in the altar of sophisticated technicalities with impairment of the sacred
principles of justice.' (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As
succinctly put by Justice Makalintal, they 'should give way to the realities of the situation.'
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in
point, promulgated in 1968, (Udan v. Amon, L-24288, 1968, 23 SCRA 837 citing McEntee
v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier
formulation of Justice Labrador that rules of procedure 'are not to be applied in a very
rigid, technical sense'; but are intended 'to help secure substantial justice.' (Ibid., p. 843)
. . ." 30g
Even if the questioned Court of Industrial Relations orders and rule were to be given effect,
the dismissal or termination of the employment of the petitioning eight (8) leaders of the
Union is harsh for a one-day absence from work. The respondent Court itself recognized
the severity of such a sanction when it did not include the dismissal of the other 393
employees who are members of the same Union and who participated in the demonstration
against the Pasig police. As a matter of fact, upon the intercession of the Secretary of
Labor, the Union members who are not officers, were not dismissed, and only the Union
itself and its thirteen (13) officers were specifically named as respondents in the unfair
labor practice charge filed against them by the firm (pp. 16-20, respondent's Brief;
Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not
all the 400 or so employees participated in the demonstration, for which reason only the
Union and its thirteen (13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and
regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain any damage.
The appropriate penalty — if it deserves any penalty at all — should have been simply to
charge said one-day absence against their vacation or sick leave. But to dismiss the eight
(8) leaders of the petitioner Union is a most cruel penalty, since as aforestated the Union
leaders depend on their wages for their daily sustenance as well as that of their respective
families aside from the fact that it is a lethal blow to unionism, while at the same time
strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
"The challenge to our liberties comes frequently not from those who consciously seek to
destroy our system of government, but from men of goodwill — good men who allow their
proper concerns to blind them to the fact that what they propose to accomplish involves
an impairment of liberty.
". . . The Motives of these men are often commendable. What we must remember, however,
is that preservation of liberties does not depend on motives. A suppression of liberty has
the same effect whether the suppressor be a reformer or an outlaw. The only protection
against misguided zeal is constant alertness of the infractions of the guarantees of liberty
contained in our Constitution. Each surrender of liberty to the demands of the moment
makes easier another, larger surrender. The battle over the Bill of Rights is a never ending
one.
". . . The liberties of any person are the liberties of all of us.
". . . In short, the Liberties of none are safe unless the liberties of all are protected.
". . . But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize that our
Bill of Rights is a code of fair play for the less fortunate that we in all honor and good
conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of goodwill or good intention, but a complete lack
of sympathetic understanding of the plight of its laborers who claim that they are being
subjected to indignities by the local police. It was more expedient for the firm to conserve
its income or profits than to assist its employees in their fight for their freedoms and
security against alleged petty tyrannies of local police officers. This is sheer opportunism.
Such opportunism and expediency resorted to by the respondent company assaulted the
immunities and welfare of its employees. It was pure and simple selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the
petitioner Bank dismissed eight (8) employees for having written and published "a patently
libelous letter . . . to the Bank president demanding his resignation on the grounds of
immorality, nepotism in the appointment and favoritism as well as discrimination in the
promotion of bank employees." Therein, thru Mr. Justice Castro, We ruled:
"It will avail the Bank none to gloat over this admission of the respondents. Assuming that
the latter acted in their individual capacities when they wrote the letter-charge they were
nonetheless protected for they were engaged in concerted activity, in the exercise of their
right of self organization that includes concerted activity for mutual aid and protection,
(Section 3 of the Industrial Peace Act . . .). This is the view of some members of this Court.
For, as has been aptly stated, the joining in protests or demands, even by a small group
of employees, if in furtherance of their interests as such, is a concerted activity protected
by the Industrial Peace Act. It is not necessary that union activity be involved or that
collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
"Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.
xxx xxx xxx
"The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right of
self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB, 324
U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine Education
Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is undenied. The
Industrial Peace Act does not touch the normal exercise of the right of the employer to
select his employees or to discharge them. it is directed solely against the abuse of that
right by interfering with the countervailing right of self organization (Phelps Dodge Corp.
v. NLRB, 313 U.S. 177 [1941]). . . .
xxx xxx xxx
"In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization, or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair labor
practice within the meaning and intendment of section 4(a) of the Industrial Peace Act."
(Italics supplied.) 33
If free expression was accorded recognition and protection to fortify labor unionism in the
Republic Savings case, supra, where the complaint assailed the morality and integrity of
the bank president no less, such recognition and protection for free speech, free assembly
and right to petition are rendered all the more justifiable and more imperative in the case
at bar, where the mass demonstration was not against the company nor any of its officers.
WHEREFORE, judgment is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of Industrial
Relations dated September 15 and October 9, 1969; and
(2) directing the reinstatement of the herein eight (8) petitioners, with full back pay
from the date of their separation from the service until reinstated, minus one day's pay
and whatever earnings they might have realized from other sources during their separation
from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J., took no part.
Teehankee, J., concurs in a separate opinion.
Barredo, J., dissents.
Antonio, J., concurs in the dissenting opinion.
Separate Opinions
BARREDO J.: Dissenting —
I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.
The background of this case may be found principally in the stipulation of facts upon
which the decision under review is based. It is as follows:
"1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation
existing and operating under and by virtue of the laws of the Philippines with corporate
address at 666 Muelle de Binondo, Manila, which is the employer of respondent;
"2 That Philippine Blooming Mills Employees Organization, PBMEO for short, is a
legitimate labor organization, and the respondents herein are either officers of respondent
PBMEO or members thereof;
"3. That on March 2, 1969 complainant company learned of the projected mass
demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM - 2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the
morning of March 4, 1969;
"4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L.
Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads. For the
PBMEO: (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
"5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO, thru Benjamin Pagcu who acted
as the spokesman of the union panel, confirmed the planned demonstration and stated
that the demonstration or rally cannot be cancelled because it has already been agreed
upon in the meeting. Pagcu explained further that the demonstration has nothing to do
with the Company because the union has no quarrel or dispute with Management;
"6. That Management, thru Atty. C. S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which reason, the Company,
thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of the demonstration,
who shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
"7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C. S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacañang demonstration, the
workers for the first and regular shift of March 4, 1969 should be excused from joining
the demonstration and should report for work; and thus utilize the workers in the 2nd
and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV:
"NO LOCKOUT — NO STRIKE". All those who will not follow this warning of the Company
shall be dismissed; De Leon reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans inasmuch as the Malacañang
demonstration will be held the following morning; and
"8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.'"
Additionally, the trial court found that "the projected demonstration did in fact occur and
in the process paralyzed to a large extent the operations of the complainant company". (p.
5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial Relations filed with
said court a complaint for Unfair Labor Practice against petitioners charging that:
"3. That on March 4, 1969, respondents (petitioners herein) particularly those in the
first shift, in violation of the existing collective bargaining agreement and without filing
the necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;
"4. That the above acts are in violation of Section 4(a) sub-paragraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement." (Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part of which reads:
"IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is
found guilty of bargaining in bad faith and is hereby ordered to cease and desist from
further committing the same and its representatives namely: respondent Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod who are directly responsible for
perpetrating this unfair labor practice act, are hereby considered to have lost their status
as employees of the Philippine Blooming Mills, Inc." (p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were notified of this decision
on September 23, 1969, there seems to be no serious question that they were actually
served therewith on September 22, 1969. In fact, petitioners admitted this date of notice
in paragraph 2 of their Petition for Relief dated October 30, 1969 and filed with the
industrial court on the following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven (7) days after they
were notified of the court's decision, that petitioners filed their motion for reconsideration
with the industrial court; as it is also not disputed that they filed their "Arguments in
Support of the Respondents' Motion for Reconsideration" only on October 14, 1969. (See
Annex I.) In other words, petitioners' motion for reconsideration was filed two (2) days after
the lapse of the five (5) day period provided for the filing thereof in the rules of the Court
of Industrial Relations, whereas the "Arguments" were filed five (5) days after the expiration
of the period therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by respondent private
firm, namely, that in view of the failure of petitioners to file not only their motion for
reconsideration but also their arguments in support thereof within the periods respectively
fixed in the rules therefor, the Court of Industrial Relations acted correctly and within the
law in rendering and issuing its impugned order of October 9, 1969 dismissing petitioners'
motion for reconsideration.
Respondent's contention presents no problem. Squarely applicable to the facts hereof is
the decision of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations 1 wherein
it was ruled that:
"August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge
Arsenio I. Martinez, the dispositive part of which was set forth earlier in this opinion.
"August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.
"August 21, 1963. Petitioner moved for additional time to file its arguments in support of
its motion to reconsider.
"August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking
reconsideration.
"September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration.
Ground therefor was that the arguments were 'filed out of time'.
"October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.
"Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.
"1. That the judgment appealed from is a final judgment — not merely an interlocutory
order — there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in ordering
the Chief of the Examining Division or his representative to compute the compensation
due, the Industrial Court unduly delegated its judicial functions and thereby rendered an
incomplete decision. We do not believe so. Computation of the overtime pay involves a
mechanical function, at most. And the report would still have to be submitted to the
Industrial Court for its approval by the very terms of the order itself. That there was no
specification of the amount of overtime pay in the decision did not make it incomplete,
since this matter would necessarily be made clear enough in the implementation of the
decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al., L-8718, May 11, 1956).'"
"2. But has that judgment reached the stage of finality in the sense that it can no longer
be disturbed?
"CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer
the question in the affirmative.
"Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of
the trial judge must do so within five (5) days from the date on which he received notice of
the decision, subject of the motion. Next follows Section 16 which says that the motion
must be submitted with arguments supporting the same. But if said arguments could not
be submitted simultaneously with the motion, the same section commands that 'the
movant shall file the same within ten (10) days from the date of the filing of his motion for
reconsideration'. Section 17 of the same rules admonishes a movant that '(f)ailure to
observe the above-specified periods shall be sufficient cause for dismissal of the motion
for reconsideration or striking out of the answer and/or the supporting arguments, as the
case may be'.
"Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro
forma motion for reconsideration was filed out of time its denial is in order pursuant to
CIR rules, regardless of whether the arguments in support of said motion were or were not
filed on time. Pangasinan Employees Laborers & Tenants Association (PELTA) vs.
Martinez, (L-13846, May 20, 1960) pronounced that where a motion to reconsider is filed
out of time, the order or decision subject of reconsideration becomes final. And so also,
where the arguments in support of the motion for reconsideration are filed beyond the ten-
day reglementary period, the pro forma motion for reconsideration although seasonably
filed must nevertheless be denied. This in essence is our ruling in Local 7, Press & Printing
Free Workers (FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time, the order or decision
subject of the motion becomes 'final and unappealable'.
"We find no difficulty in applying the foregoing rules and pronouncements of this Court in
the case before us. On August 6, petitioner received a copy of the judgment of Judge
Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider — without arguments in
support thereof — of August 12 was filed on time. For, August 11, the end of the five-day
reglementary period to file a motion for reconsideration, was a Sunday. But, actually, the
written arguments in support of the said motion were submitted to the court on August
27. The period from August 12 to August 27, is a space of fifteen (15) days. Surely enough,
said arguments were filed out of time — five (5) days late. And the judgment had become
final.
"3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time
within which to present its arguments in support of its motion. Counsel in his petition
before this Court pleads that the foregoing motion was grounded on the 'extremely busy
and difficult schedule of counsel' which would not enable him to do so within the stated
ten-day reglementary period. The arguments were only filed on August 27 — five (5) days
late, as aforesaid.
"The foregoing circumstances will not avail petitioner any. It is to be noted that the motion
for expansion of time was filed only on August 21, that is, one day before the due date
which is August 22. It was petitioner's duty to see to it that the court act on this motion
forthwith or at least inquire as to the fate thereof not later than the 22nd of August. It did
not. It merely filed its arguments on the 27th.
"To be underscored at this point is that 'obviously to speed up the disposition of cases',
CIR 'has a standing rule against the extension of the ten-day period for filing supporting
arguments'. That no-extension policy should have placed petitioner on guard. It should
not have simply folded its arms, sit by supinely, and relied on the court's generosity. To
compound petitioner's neglect, it filed the arguments only on August 27, 1953, knowing
full well that by that time the reglementary period had expired.
"Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the
motion for reconsideration on the ground that the supporting arguments were filed out of
time. That ruling in effect denied the motion for extension.
"We rule that CIR's judgment has become final and unappealable. We may not review the
same."
Notwithstanding this unequivocal and unmistakable precedent, which has not been in
any way modified, much less revoked or reversed by this Court, the main opinion has
chosen not only to go into the merits of petitioners' pose that the respondent court erred
in holding them guilty of bargaining in bad faith but also to ultimately uphold petitioners'
claim for reinstatement on constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an exposition of
the constitutional guarantees of freedoms of speech and peaceful assembly for redress of
grievances, so scholarly and masterful that it is bound to overwhelm Us unless We note
carefully the real issues in this case, I am constrained, over and above my sincere
admiration for the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
dutifully state that as presented by petitioners themselves and in the light of its attendant
circumstances, this case does not call for the resolution of any constitutional issue.
Admittedly, the invocation of any constitutional guarantee, particularly when it directly
affects individual freedoms enshrined in the bill of rights, deserves the closest attention of
this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be protected
by the courts only when their jurisdiction over the subject matter is unquestionably
established and the applicable rules of procedure consistent with substantive and
procedural due process are observed. No doubt no constitutional right can be sacrificed
in the altar of procedural technicalities, very often fittingly downgraded as niceties, but as
far as I know, this principle is applied to annul or set aside final judgments only in cases
wherein there is a possible denial of due process. I have not come across any instance,
and none is mentioned or cited in the well-documented main opinion, wherein a final and
executory judgment has been invalidated and set aside upon the ground that the same
has the effect of sanctioning the violation of a constitutional right, unless such violation
amounts to a denial of due process.
Without support from any provision of the constitution or any law or from any judicial
precedent or reason of principle, the main opinion nudely and unqualifiedly asserts, as if
it were universally established and accepted as an absolute rule, that "a violation of a
constitutional right divests the court of jurisdiction; and as a consequence its judgment
is null and void and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which
is mentioned almost in passing, does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even after the finality of the judgment". And, of course, Chavez
is correct; as is also Abriol vs. Homeres, 2 which, in principle, served as its precedent, for
the very simple reason that in both of those cases, the accused were denied due process.
In Chavez, the accused was compelled to testify against himself as a witness for the
prosecution; in Abriol, the accused was denied his request to be allowed to present
evidence to establish his defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases are a far cry
from the one now before Us. Here, petitioners do not claim they were denied due process.
Nor do they pretend that in denying their motion for reconsideration, "the respondent
Court of Industrial Relations and private firm trenched upon any of their constitutional
immunities . . .," contrary to the statement to such effect in the main opinion. Indeed,
neither in the petition herein nor in any of the other pleading of petitioners can any direct
or indirect assertion be found assailing the impugned decision of the respondent court as
being null and void because it sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
"Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the Motion
for Reconsideration filed by your petitioners.
"Petitioners, therefore, in filing this petition for a writ of certiorari humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court."
"xxx xxx xxx
"The basic issue therefore is the application by the Court en banc of the strict and narrow
technical rules of procedure without taking into account justice, equity and substantial
merits of the case."
On the other hand, the complete argument submitted by petitioners on this point in their
brief runs thus:
"III
ISSUES
"1. Does the refusal to heed a warning in the exercise of a fundamental right to
peaceably assemble and petition the government for redress of grievances constitute
bargaining in bad faith? and,
"Do the facts found by the court below justify the declaration and conclusion that the
union was guilty of bargaining in bad faith meriting the dismissal of the persons allegedly
responsible therefor?
"2. Was there grave abuse of discretion when the respondent court refused to act one
way or another on the petition for relief from the resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petitioner union guilty of bargaining in bad faith
and consequently dismissing the persons allegedly responsible therefor, because such
conclusion is contrary to the evidence on record; that the dismissal of leaders was
discriminatory.
"As a result of exercising the constitutional rights of freedom to assemble and petition the
duly constituted authorities for redress of their grievances, the petitioners were charged
and then condemned of bargaining in bad faith.
"The findings that petitioners were guilty of bargaining in bad faith were not borne out by
the records. It was not even alleged nor proven by evidence. What has been alleged and
which the respondent company tried to prove was that the demonstration amounted to a
strike and hence, a violation of the provisions of the 'no-lockout — no strike' clause of the
collective bargaining agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the respondent court in the same
decision stated categorically:
'The company alleges that the walkout because of the demonstration is tantamount to a
declaration of a strike. We do not think so, as the same is not rooted in any industrial
dispute although there is a concerted act and the occurrence of a temporary stoppage of
work.' (Italics supplied, p. 4, 5th paragraph, Decision.)
"The respondent court's findings that the petitioner union bargained in bad faith is not
tenable because:
"First, it has not been alleged nor proven by the respondent company;
"Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work will
not be disrupted, immediately threatened the employees of mass dismissal;
"Third, the refusal of the petitioner union to grant the request of the company that the
first shift shall be excluded in the demonstration is not tantamount to bargaining in bad
faith because the company knew that the officers of the union belonged to the first shift,
and that the union cannot go and lead the demonstration without their officers. It must
be stated that the company intends to prohibit its officers to lead and join the
demonstration because most of them belonged to the first shift; and
"Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the CBA is
a conclusion of facts, opinionated and not borne by any evidence on record. The
demonstration did not practically change the terms or conditions of employment because
it was only for one (1) day and the company knew about it before it went through. We can
even say that it was the company who bargained in bad faith, when upon representation
of the Bureau of Labor not to dismiss the employees demonstrating, the company tacitly
approved the same and yet while the demonstration was in progress, the company filed a
ULP Charge and consequently dismissed those who participated.
"Records of the case show that more or less 400 members of the union participated in the
demonstration and yet, the respondent court selected the eight officers to be dismissed
from the union thus losing their status as employees of the respondent company. The
respondent court should have taken into account that the company's action in allowing
the return of more or less three hundred ninety two (392) employees/members of the
union is an act of condonation and the dismissal of the eight (8) officers is an act of
discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L-
8197, Oct. 31, 1968). Seemingly, from the opinion stated in the decision by the court,
while there is a collective bargaining agreement, the union cannot go on demonstration or
go on strike because it will change the terms and conditions of employment agreed in the
CBA. It follows that the CBA is over and above the constitutional rights of a man to
demonstrate and the statutory rights of a union to strike as provided for in Republic Act
875. This creates a had precedent because it will appear that the rights of the union is
solely dependent upon the CBA.
"One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that 'the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties
affected.' (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct. 185,
57 Law ed. 431.) Only by confining the administrative tribunal to the evidence disclosed
to the parties, can the latter be protected in their rights to know and meet the case against
them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.)
"The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in bad
faith. Corollary therefore, the dismissal of the individual petitioners is without basis either
in fact or in law."
Additionally, in their reply they also argued that:
"1) That respondent court's finding that petitioners have been guilty of bargaining in
bad faith and consequently lost their status as employees of the respondent company did
not meet the meaning and comprehension of 'substantial merits of the case.' Bargaining
in bad faith has not been alleged in the complaint (Annex "C", Petition) nor proven during
the hearing of the case. The important and substantial merit of the case is whether under
the facts and circumstances alleged in respondent company's pleadings, the
demonstration done by the petitioners amounted to on 'illegal strike' and therefore in
violation of the 'no strike — no lock out' clause of the Collective Bargaining Agreement.
Petitioners respectfully reiterate and humbly submit, that the respondent court had
altogether opined and decided that such demonstration does not amount to a strike.
Hence, with that findings, petitioners should have been absolved of the charges against
them. Nevertheless, the same respondent court disregarding, its own findings, went out of
bounds by declaring the petitioners as having 'bargained in faith.' The stand of the
respondent court is fallacious, as it follows the principle in logic as 'non-siquitor';
"2) That again respondents wanted to impress that the freedom to assemble peaceably
to air grievances against the duly constituted authorities as guaranteed in our
Constitution is subject to the limitation of the agreement in the Collective Bargaining
Agreement. The fundamental rights of the petitioners to free speech and assembly is
paramount to the provision in the Collective Bargaining Agreement and such attempt to
override the constitutional provision would be null and void. These fundamental rights of
the petitioners were not taken into consideration in the deliberation of the case by the
respondent court;"
Thus, it is clear from the foregoing contentions that petitioners are not raising any issue
of due process. They do not posit that the decision of the industrial court is null and void
on that constitutional ground. True it is that they fault the respondent court for having
priced the provisions of the collective bargaining agreement herein involved over and above
their constitutional right to peaceably assemble and petition for redress of their grievances
against the abuses of the Pasig police, but in no sense at all do they allege or contend that
such action affects its jurisdiction in a manner that renders the proceedings a nullity. In
other words, petitioners themselves consider the alleged flaw in the court's action as a
mere error of judgment rather than that of jurisdiction which the main opinion projects
for this Court to roundly and indignantly condemn private respondent now for the grievous
violation of the fundamental law the main opinion sees in its refusal to allow all its workers
to join the demonstration in question, when that specific issue has not been duly
presented to Us and properly argued, is to my mind unfair and unjust, for the simple
reason that the manner this case was brought to Us does not afford it the opportunity to
be heard in regard to such supposed constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an error of
jurisdiction by finding petitioners guilty of bargaining in bad faith when the charge against
them alleged in the complaint was for having conducted a mass demonstration, which
"amounted to a strike", in violation of the Collective Bargaining Agreement, but definitely,
this jurisdictional question has no constitutional color Indeed, We can even assume for
the sake of argument, that the trial judge did err in not giving preferential importance to
the fundamental freedoms invoked by the petitioners over the management and
proprietary attributes claimed by the respondent private firm — still, We cannot rightly
hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction
in the premises. The unbending doctrine of this Court is that "decisions, erroneous or not,
become final after the period fixed by law; litigations would be endless; no questions would
be finally settled; and titles to property would become precarious if the losing party were
allowed to reopen them at any time in the future." 3
I only have to add to this that the fact that the error is in the interpretation, construction
or application of a constitutional precept, not constituting a denial of due process, should
not make any difference. Juridically, a party cannot be less injured by an overlooked or
erroneously sanctioned violation of an ordinary statute than by a misconstrued or
misapplied constitutional injunction affecting his individual freedoms. In both instances,
there is injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments. I dare say this
must be the reason why, as I have already noted, the main opinion not cite any
constitutional provision, law or rule or any judicial doctrine or principle supporting its
basic holding that infringement of constitutional guarantees, other than denial of due
process, divests courts of jurisdiction to render valid judgments.
In this connection, it must be recalled that the teaching of Philippine Association of
Colleges and Universities vs. Secretary of Education, 4 following Santiago vs. Far Eastern
Broadcasting, 5 is that "it is one of our (the Supreme Court's) decisional practices that
unless a constitutional point is specifically raised, insisted upon and adequately argued,
the court will not consider it". In the case at bar, the petitioners have not raised, they are
not insisting upon, much less have they adequately argued the constitutional issues so
extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous
resolution by a court of a constitutional issue not amounting to a denial of due process
renders its judgment or decision null and void, and, therefore, subject to attack even after
said judgment or decision has become final and executory. I have actually tried to bring
myself into agreement with the views of the distinguished and learned writer of the main
opinion, if only to avoid dissenting from his well prepared thesis, but its obvious
incongruity with settled jurisprudence always comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners
under the authority of our constitutionally irreducible appellate jurisdiction under Section
2(5) of Article VII of the 1935 Constitution of the Philippines 6 (reenacted practically
ipsissimis verbis in Section 5(2) (e) of the 1973 Constitution), only to realize upon further
reflection that the very power granted to Us to review decisions of lower courts involving
questions of law (and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only
in the manner provided in the law or the Rules of Court. In other words, before We can
exercise appellate jurisdiction over constitutional issues, no matter how important they
may be, there must first be a showing of compliance with the applicable procedural law or
rules, among them, those governing appeals from the Court of Industrial Relations
involved herein. Consequently, if by law or rule, a judgment of the industrial court is
already final and executory, this Court would be devoid of power and authority to review,
much less alter or modify the same, absent any denial of due process or fatal defect of
jurisdiction. It must be borne in mind that the situation confronting Us now is not merely
whether or not We should pass upon a question or issue not specifically raised by the
party concerned, which, to be sure, could be enough reason to dissuade Us from taking
pains in resolving the same; rather, the real problem here is whether or not We have
jurisdiction to entertain it. And, in this regard, as already stated earlier, no less than
Justice Conrado Sanchez, the writer of Chavez, supra, which is being relied upon by the
main opinion, already laid down the precedent in Elizalde vs. Court, supra, which for its
four-square applicability to the facts of this case, We have no choice but to follow, that is,
that in view of the failure of the petitioners to file not only their motion for reconsideration
but even their argument supporting the same within the prescribed period, "the judgment
(against them) has become final, beyond recall".
Indeed, when I consider that courts would be useless if the finality and enforceability of
their judgments are made contingent on the correctness thereof from the constitutional
standpoint, and that in truth, whether or not they are correct is something that is always
dependent upon combined opinion of the members of the Supreme Court, which in turn
is naturally as changeable as the members themselves are changed. I cannot conceive of
anything more pernicious and destructive to a trustful administration of justice than the
idea that, even without any showing of denial of due process or want of jurisdiction of the
court, a final and executory judgment of such court may still be set aside or reopened in
instances other than those expressly allowed by Rule 38 and that of extrinsic fraud under
Article 1146(1) of the Civil Code. 7 And just to emphasize the policy of the law of respecting
judgments once they have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors, 8 it is only when the fraud is
extrinsic and not intrinsic that final and executory judgments may be set aside, 9 and this
only when the remedy is sought within the prescriptive period. 10
Apropos here is the following passage in Li Kim Tho vs. Go Sin Kaw, 82 Phil. 776:
"Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become final, the
winning party be not, through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to bring about that result.
Constituted as they are to put an end to controversies, courts should frown upon any
attempt to prolong them."
Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil.
521, thus:
". . . Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very object
for which courts were instituted was to put an end to controversies. To fulfill this purpose
and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur
on the slothful. 'If a vacillating, irresolute judge were allowed to thus keep causes ever
within his power, to determine and redetermine them term after term, to bandy his
judgments about from one party to the other, and to change his conclusions as freely and
as capriciously as a chameleon may change its hues, then litigation might become more
intolerable than the wrongs it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.)."
My disagreement with the dissenters in Republic vs. Judge de los Angeles, L-26112,
October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in
question therein. Relevantly to this case at bar, I said then:
"The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize that my position in this
opinion does not detract a whit from the soundness, authority and binding force of existing
doctrines enjoining any such modifications. The public policy of maintaining faith and
respect in judicial decisions, which inform said doctrines, is admittedly of the highest
order I am not advocating any departure from them. Nor am I trying to put forth for
execution a decision that I believe should have been rather than what it is. All I am doing
is to view not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-
0950, as it is and not as I believe it should have been, and, by this opinion, I would like
to guide the court a quo as to what, in my honest view, is the true and correct meaning
and implications of the decision of this Court, not that of Judge Tengco's."
The main opinion calls attention to many instances, precisely involving cases in the
industrial court, wherein this Court refused to be constrained by technical rules of
procedure in its determination to accord substantial justice to the parties. I still believe in
those decisions, some of which were penned by me. I am certain, however, that in none of
those precedents did this Court disturb a judgment already final and executory. It is too
obvious to require extended elucidation or even reference to any precedent or authority
that the principle of immutability of final judgments is not a mere technicality, and if it
may be considered to be in a sense a procedural rule, it is one that is founded on public
policy and cannot, therefore, yield to the ordinary plea that it must give priority to
substantial justice.
Apparently vent on looking for a constitutional point of due process to hold on, the main
opinion goes far as to maintain that the long existing and constantly applied rule governing
the filing of motions for reconsideration in the Court of Industrial Relations, "as applied in
this case does not implement or reinforce or strengthen the constitutional rights affected,
but instead constricts the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court of Industrial Relations Rule, promulgated as it was
pursuant to a mere legislative delegation, is unreasonable and therefore is beyond the
authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieved workers, who
usually do not have the ready funds to meet the necessary expenses therefor. In case of
the Court of Appeals and the Supreme Court, a period of fifteen (15) days has been fixed
for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule
52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for
reconsideration could have been only one day if September 28, 1969 was not a Sunday.
This fact accentuates the unreasonableness of the Court of Industrial Relations Rule
insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the conclusion
suggested. Viewed objectively, it can readily be seen that there can hardly be any factual
or logical basis for such a critical view of the rule in question. Said rule provides:
"MOTIONS FOR RECONSIDERATION
"Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the
date on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of the
allegations of fact, and serving a copy thereof, personally or by registered mail, on the
adverse party. The latter may file an answer, in six (6) copies, duly verified under oath.
"Sec. 16. Both the motion and the answer shall be submitted with arguments
supporting the same. If the arguments can not be submitted simultaneously with said
motions, upon notice to the Court, the movant shall file same within ten (10) days from
the date of the filing of his motion for reconsideration. The adverse party shall also file his
answer within ten (10) days from the receipt by him of a copy of the arguments submitted
by the movant.
"Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall be
deemed submitted for resolution of the Court in banc, unless it is considered necessary
to hear oral arguments, in which case the Court shall issue the corresponding order or
notice to that effect.
"Failure to observe the above specified periods shall be sufficient cause for dismissal of
the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.)."
As implemented and enforced in actual practice, this rule, as everyone acquainted with
proceedings in the industrial court well knows, precisely permits the party aggrieved by a
judgment to file no more than a pro-forma motion for reconsideration without any
argument or lengthy discussion and with barely a brief statement of the fundamental
ground or grounds therefor, without prejudice to supplementing the same by making the
necessary exposition, with citations of laws and authorities, in the written arguments to
be filed ten (10) days later. In truth, such a pro-forma motion has the effect of just advising
the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this
requirement is to apprise everyone concerned within the shortest possible time that a
reconsideration is to be sought, and thereby enable the parties concerned to make
whatever adjustments may be warranted by the situation, in the meanwhile that the
litigation is prolonged. It must be borne in mind that cases in the industrial court may
involve or affect the operation of vital industries in which labor-management problems
might require day-to-day solutions and it is to the best interests of justice and all
concerned that the attitude of each party at every important juncture of the case be known
to the other so that other avenues for earlier settlement may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is short or
inadequate. In fact, the motion filed by petitioners was no more than the following:
"MOTION FOR RECONSIDERATION
"COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court dated
September 17, 1969 on the ground that the same is not in accordance with law, evidence
and facts adduced during the hearing of the above-entitled case.
"Movant-respondents most respectfully move for leave to file their respective arguments
within ten (10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court.
"WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted.
"Manila, September 27, 1969."
To say that five (5) days is an unreasonable period for the filing of such a motion is to me
simply incomprehensible. What is worse in this case is that petitioners have not even
taken the trouble of giving an explanation of their inability to comply with the rule. Not
only that, petitioners were also late five (5) days in filing their written arguments in support
of their motion, and, the only excuse offered for such delay is that both the President of
the Union and the office clerk who took charge of the matter forgot to do what they were
instructed to do by counsel, which, according to this Court, as I shall explain anon, "is
the most hackneyed and habitual subterfuge employed by litigants who fail to observe the
procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook
such nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules fixing periods for
the finality of judgments are in a sense more substantive than procedural in their real
nature, for in their operation they have the effect of either creating or terminating rights
pursuant to the terms of the particular judgment concerned. And the fact that the court
that rendered such final judgment is deprived of jurisdiction or authority to alter or modify
the same enhances such substantive character. Moreover, because they have the effect of
terminating rights and the enforcement thereof, it may be said that said rules partake of
the nature also of rules of prescription, which again are substantive. Now, the twin
predicates of prescription are inaction or abandonment and the passage of time or a
prescribed period. On the other hand, procrastination or failure to act on time is
unquestionably a form of abandonment, particularly when it is not or cannot be
sufficiently explained. The most valuable right of a party may be lost by prescription, and
he has no reason to complain because public policy demands that rights must be asserted
in time, as otherwise they can be deemed waived.
I see no justification whatsoever for not applying these self evident principles to the case
of petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for
the purposes of this case the rules aforequoted of the Court of Industrial Relations.
Besides, I have grave doubts as to whether we can suspend rules of other courts,
particularly one that is not under our supervisory jurisdiction, being an administrative
agency under the Executive Department. Withal, if, in order to hasten the administration
of substantial justice, this Court did exercise in some instances its reserve power to amend
its rules, I am positively certain, it has never done it for the purpose of reviving a case in
which the judgment has already become final and executory.
Before closing, it may be mentioned here, that as averred in their petition, in a belated
effort to salvage their cause, petitioners filed in the industrial court on October 31, 1969
a petition for relief alleging that their failure to file their "Arguments in Support of their
Motion for Reconsideration" within the reglementary period or five (5), if not seven (7), days
late "was due to excusable negligence and honest mistake committed by the President of
the respondent Union and of the office clerk of the counsel for respondents as shown and
attested in their respective affidavits", (See Annexes K, K-1, and K-2) which in brief,
consisted allegedly of the said President's having forgotten his appointment with his lawyer
"despite previous instructions" and of the said office employee having also coincidentally
forgotten "to do the work as instructed (sic) to (him) by Atty. Osorio" because he "was too
busy with clerical jobs". No sympathy at all can be evoked by these allegations, for, under
probably more justifying circumstances, this Court ruled out a similar explanation in a
previous case this wise:
"We find merit in PAL's petition. The excuse offered by respondent Santos as reason for
his failure to perfect in due time his appeal from the judgment of the Municipal Court,
that counsel's clerk forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe the procedural requirements
prescribed by the Rules of Court. The uncritical acceptance of this kind of commonplace
excuses, in the face of the Supreme Court's repeated rulings that they are neither credible
nor constitutive of excusable negligence (Gaerlan vs. Bernal, L 4039, 29 January 1952;
Mercado vs. Judge Domingo, L-19457, 17 December 1966) is certainly such whimsical
exercise of judgment as to be a grave abuse of discretion." (Philippine Air Lines, Inc. vs.
Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to be reviewed
in the present case has already become final and executory, nay, not without the fault of
the petitioners, hence, no matter how erroneous from the constitutional viewpoint it may
be, it is already beyond recall, I vote to dismiss this case, without pronouncement as to
costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest
against alleged abuses of the Pasig police department, upon two days' prior notice to
respondent employer company, as against the latter's insistence that the first shift 1
should not participate but instead report for work, under pain of dismissal, the industrial
court ordered the dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on respondent's complaint of
bargaining in bad faith and unfair labor practice for having so carried out the mass
demonstration, notwithstanding that it concededly was not a declaration of strike nor
directed in any manner against respondent employer, and ordering the dismissal of the
union officers, manifestly constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor practice since
respondent firm conceded that "the demonstration is an inalienable right of the union
guaranteed by the Constitution" and the union up to the day of the demonstration pleaded
by cablegram to the company to excuse the first shift and allow it to join the demonstration
in accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective bargaining agreement's
"no-strike" clause as would warrant the union leaders' dismissal, since as found by
respondent court itself the mass demonstration was not a declaration of a strike, there
being no industrial dispute between the protagonists, but merely "the occurrence of a
temporary stoppage of work" to enable the workers to exercise their constitutional rights
of free expression, peaceable assembly and petition for redress of grievance against alleged
police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for reconsideration
for having been filed two days late, after expiration of the reglementary five-day period
fixed by its rules, due to the negligence of petitioners' counsel and/or the union president
should likewise be set aside as a manifest act of grave abuse of discretion. Petitioners'
petition for relief from the normal adverse consequences of the late filing of their motion
for reconsideration due to such negligence — which was not acted upon by respondent
court — should have been granted, considering the monstrous injustice that would
otherwise be caused the petitioners through their summary dismissal from employment,
simply because they sought in good faith to exercise basic human rights guaranteed them
by the Constitution. It should be noted further that no proof of actual loss from the one-
day stoppage of work was shown by respondent company, providing basis to the main
opinion's premise that its insistence on dismissal of the union leaders for having included
the first shift workers in the mass demonstration against its wishes was but an act of
arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners and the
constitutional injunction to afford protection to labor be given true substance and
meaning. No person may be deprived of such basic rights without due process — which is
but "responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided . . . Due process is thus
hostile to any official action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of the respondent court and
concur in the judgment for petitioners as set forth in the main opinion.
EN BANC
[G.R. No. 100150. January 5, 1994.]
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO
OCAMPO, petitioners, vs. COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND
OTHERS AS JOHN DOES, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON HUMAN RIGHTS; POWERS AND
FUNCTIONS. — The Commission on Human Rights was created by the 1987 Constitution.
It was formally constituted by then President Corazon Aquino via Executive Order No. 163,
issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded,
but so superseded as well, the Presidential Committee on Human Rights. The powers and
functions of the Commission are defined by the 1987 Constitution, thus: to - "(1)
Investigate, on its own or on complaint by any party, all forms of human rights violations
involving civil and political rights; (2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court; (3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or
detention facilities; (5) Establish a continuing program, of research, education, and
information to enhance respect for the primacy of human rights; (6) Recommend to the
Congress effective measures to promote human rights and to provide for compensation to
victims of violations of human rights, or their families; (7) Monitor the Philippine
Government's compliance with international treaty obligations on human rights; (8) Grant
immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority; (9) Request the assistance of any
department, bureau, office, or agency in the performance of its functions; (10) Appoint its
officers and employees in accordance with law; and (11) Perform such other duties and
functions as may be provided by law."
2. ID.; ID.; CANNOT EXERCISE ADJUDICATING POWER. — In its Order of 1 March
1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the
members of the Constitutional Commission is to make CHR a quasi-judicial body. This
view, however, has not heretofore been shared by this Court. In Cariño v. Commission on
Human Rights, the Court, through then Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is "only the first of the enumerated powers and functions
that bears any resemblance to adjudication or adjudgment," but that resemblance can in
no way be synonymous to the adjudicatory power itself. The Court explained: ". . . (T)he
Commission on Human Rights . . . was not meant by the fundamental law to be another
court or quasi-judicial agency in this country, or duplicate much less take over the
functions of the latter. The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence and make findings of
fact as regards claimed human rights violations involving civil and political rights. But fact
finding is not adjudication, and cannot be likened to the judicial function of a court of
justice, or even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the authority of applying the law to
those factual conclusions to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or modes of review as may
be provided by law. This function, to repeat, the Commission does not have."
3. ID.; ID.; POWER TO INVESTIGATE ALL FORMS OF HUMAN RIGHTS VIOLATIONS
INVOLVING CIVIL AND POLITICAL RIGHTS; "CIVIL RIGHTS"; DEFINED. — Now written
as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the
Commission on Human Rights to "investigate, on its own or on complaint by any party,
all forms of human rights violations involving civil and political rights" (Sec. 1). The term
"civil rights," has been defined as referring - "(to) those (rights) that belong to every citizen
of the state or country, or, in a wider sense, to all its inhabitants, and are not connected
with the organization or administration of government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined
civil rights are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of being
enforced or redressed in a civil action." Also quite often mentioned are the guarantees
against involuntary servitude, religious persecution, unreasonable searches and seizures,
and imprisonment for debt.
4. ID.; ID.; ID.; "POLITICAL RIGHTS"; DEFINED. — Political rights, are said to refer to
the right to participate, directly or indirectly, in the establishment or administration of
government, the right of suffrage, the right to hold public office, the right of petition and,
in general, the rights appurtenant to citizenship vis-a-vis the management of government.
5. ID.; ID.; ID.; APPLICATION IN CASE AT BAR. — In the particular case at hand, there
is no cavil that what are sought to be demolished are the stalls, sari-sari stores and
carinderia, as well as temporary shanties, erected by private respondents on a land which
is planned to be developed into a "People's Park." More than that, the land adjoins the
North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national
highway. The consequent danger to life and limb is not thus to be likewise simply ignored.
It is indeed paradoxical that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking
at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this
instance, we are not prepared to conclude that the order for the demolition of the stalls,
sari-sari stores and carenderia of the private respondents can fall within the compartment
of "human rights violations involving civil and political rights" intended by the
Constitution.
6. ID.; ID.; POWER TO CITE OR HOLD ANY PERSON IN DIRECT OR INDIRECT
CONTEMPT; APPLICATION. — On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court." Accordingly, the
CHR acted within its authority in providing in its revised rules, its power "to cite or hold
any person in direct or indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the Rules of Court." That
power to cite for contempt, however, should be understood to apply only to violations of
its adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be exercised
against persons who refuse to cooperate with the said body, or who unduly withhold
relevant information, or who decline to honor summons, and the like, in pursuing its
investigating work.
7. ID.; ID.; HAS NO POWER TO ISSUE WRIT OF PRELIMINARY INJUNCTION; REASON
THEREFOR. — The "order to desist" (a semantic interplay for a restraining order) in the
instance before us, however, is not investigatorial in character but prescinds from an
adjudicative power that it does not possess. In Export Processing Zone Authority vs.
Commission on Human Rights, the Court, speaking through Madame Justice Carolina
Griño-Aquino, explained: "The constitutional provision directing the CHR to `provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection' may not be construed to confer jurisdiction on the
Commission to issue a restraining order or writ of injunction for, it that were the intention,
the Constitution would have expressly said so. `Jurisdiction is conferred only by the
Constitution or by law.' It is never derived by implication. Evidently, the `preventive
measures and legal aid services' mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a writ of preliminary injunction) which the CHR may seek
from the proper courts on behalf of the victims of human rights violations. Not being a
court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued `by the judge of any court in which the action is pending
[within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . ..
A writ of preliminary injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights and interests of a party
thereto, and for no other purpose." The Commission does have legal standing to indorse,
for appropriate action, its findings and recommendations to any appropriate agency of
government.
8. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PROHIBITION; PROPER REMEDY IN
CASE AT BAR. — The public respondent explains that this petition for prohibition filed by
the petitioners has become moot and academic since the case before it (CHR Case No. 90-
1580) has already been fully heard, and that the matter is merely awaiting final resolution.
It is true that prohibition is a preventive remedy to restrain the doing of an act about to
be done, and not intended to provide a remedy for an act already accomplished. Here,
however, said Commission admittedly has yet to promulgate its resolution in CHR Case
No. 90-1580. The instant petition has been intended, among other things, to also prevent
CHR from precisely doing that.
PADILLA, J., dissenting:
1. CONSTITUTIONAL LAW; COMMISSION ON HUMAN RIGHTS; HAS THE POWER TO
ISSUE CEASE AND DESIST ORDER TO MAINTAIN THE STATUS QUO PENDING
INVESTIGATION OF A CASE INVOLVING AN ALLEGED HUMAN RIGHTS VIOLATION;
REASONS THEREFOR. - J. Padilla reiterates his separate opinion in "Carino, et al. vs. The
Commission on Human Rights, et al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483
in relation to the resolution of 29 January 1991 and his dissenting opinion in "Export
Processing Zone Authority vs. The Commission on Human Rights, et al.," G.R. No. 101476,
14 April 1992, 208 SCRA 125. He is of the considered view that the CHR can issue a cease
and desist order to maintain the status quo pending its investigation of a case involving
an alleged human rights violation; that such cease and desist order may be necessary in
situations involving a threatened violation of human rights, which the CHR intents to
investigate. In the case at bench, He would consider the threatened demolition of the stalls,
sari-sari stores and carinderias as well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights violation because it involves an
impairment of the civil rights of said private respondents, under the definition of civil
rights cited by the majority opinion and which the CHR has unquestioned authority to
investigate (Section 18, Art. XIII, 1987 Constitution). Human rights demand more than lip
service and extend beyond impressive displays of placards at street corners. Positive action
and results are what count. Certainly, the cause of human rights is not enhanced when
the very constitutional agency tasked to protect and vindicate human rights is
transformed by us, from the start, into a tiger without dentures but with maimed legs to
boot. He submits the CHR should be given a wide latitude to look into and investigate
situations which may (or may not ultimately) involve human rights violations.
DECISION
VITUG, J p:
The extent of the authority and power of the Commission on Human Rights ("CHR") is
again placed into focus in this petition for prohibition, with prayer for a restraining order
and preliminary injunction. The petitioners ask us to prohibit public respondent CHR from
further hearing and investigating CHR Case No. 90 —1580, entitled "Fermo, et al. vs.
Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City
Integrated Hawkers Management Council under the Office of the City Mayor, was sent to,
and received by, the private respondents (being the officers and members of the North
Edsa Vendors Association, Incorporated). In said notice, the respondents were given a
grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned
premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo that their stalls should be removed to
give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR
against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a
letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and carinderia along North
EDSA. The complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the
CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR. 4
On the basis of the sworn statements submitted by the private respondents on 31 July
1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the
petitioners carried out the demolition of private respondents' stalls, sari-sari stores and
carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in favor of the private respondents to
purchase light housing materials and food under the Commission's supervision and again
directed the petitioners to "desist from further demolition, with the warning that violation
of said order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The
motion also averred, among other things, that:
"1. this case came about due to the alleged violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;
"xxx xxx xxx
"3. . . ., a perusal of the said Agreement (revealed) that the moratorium referred to
therein refers to moratorium in the demolition of the structures of poor dwellers;
"4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1 August
1990 that the complainants are indeed, vendors;
"5. that the complainants (were) occupying government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon City; . . . and
"6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to operate
within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon
grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement, arguing
that the motion to dismiss set for 21 September 1990 had yet to be resolved. The
petitioners likewise manifested that they would bring the case to the courts.
On 18 September 1990, a supplemental motion to dismiss was filed by the petitioners,
stating that the Commission's authority should be understood as being confined only to
the investigation of violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their privilege to engage in
business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for resolution,
along with the contempt charge that had meantime been filed by the private respondents,
albeit vigorously objected to by petitioners (on the ground that the motion to dismiss was
still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for
carrying out the demolition of the stalls, sari-sari stores and carinderia despite the "order
to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss
and supplemental motion to dismiss, in this wise:
"Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the gross
violations of their human and constitutional rights. The motion to dismiss should be and
hereby DENIED for lack of merit." 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to create
only a paper tiger limited only to investigating civil and political rights, but it (should) be
(considered) a quasi-judicial body with the power to provide appropriate legal measures
for the protection of human rights of all persons within the Philippines. . . ." It added:
"The right to earn a living is a right essential to one's right to development, to life and to
dignity. All these brazenly and violently ignored and trampled upon by respondents with
little regard at the same time for the basic rights of women and children, and their health,
safety and welfare. Their actions have psychologically scarred and traumatized the
children, who were witness and exposed to such a violent demonstration of Man's
inhumanity to man."
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we also
issued a temporary restraining order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and authority
given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by
the demolition.
In the Court's resolution of 10 October 1991, the Solicitor- General was excused from filing
his comment for public respondent CHR. The latter thus filed its own comment, 18
through Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to
dispense with the comment of private respondent Roque Fermo, who had since failed to
comply with the resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987 Constitution. 19 It was
formally constituted by then President Corazon Aquino via Executive Order No. 163, 20
issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded,
but so superseded as well, the Presidential Committee on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution,
thus: to —
"(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
"(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;
"(3) Provide appropriate legal measures for the protection of human rights of all persons
within the Philippines, as well as Filipinos residing abroad, and provide for preventive
measures and legal aid services to the underprivileged whose human rights have been
violated or need protection;
"(4) Exercise visitorial powers over jails, prisons, or detention facilities;
"(5) Establish a continuing program of research, education, and information to enhance
respect for the primacy of human rights;
"(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;.
"(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;.
"(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by it or under its authority;
"(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;.
"(10) Appoint its officers and employees in accordance with law; and
"(11) Perform such other duties and functions as may be provided by law."
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes
that the intention of the members of the Constitutional Commission is to make CHR a
quasi-judicial body. 23 This view, however, has not heretofore been shared by this Court.
In Cariño v. Commission on Human Rights, 24 the Court, through then Associate Justice,
now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated
powers and functions that bears any resemblance to adjudication or adjudgment," but
that resemblance can in no way be synonymous to the adjudicatory power itself. The Court
explained:
". . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate much less take over
the functions of the latter.
"The most that may be conceded to the Commission in the way of adjudicative power is
that it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have."
After thus laying down at the outset the above rule, we now proceed to the other kernel of
this controversy and, it is, to determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any
attempt to define it, albeit not a few have tried, could be at best be described as
inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that has been
propounded is "(w)hat do you understand by 'human right'?" The participants,
representing different sectors of the society, have given the following varied answers:
"Human rights are the basic rights which inhere in man by virtue of his humanity. They
are the same in all parts of the world, whether in the Philippines or England, Kenya or the
Soviet Union, the United States or Japan, Kenya or Indonesia. . . .
"Human rights include civil rights, such as the right to life, liberty, and property; freedom
of speech, of the press, of religion, academic freedom, and the rights of the accused to due
process of law; political rights, such as the right to elect public officials, to be elected to
public office, and to form political associations and engage in politics; and social rights,
such as the right to an education, employment, and social services." 25
"Human rights are the entitlement that inhere in the individual person from the sheer fact
of his humanity. . . . Because they are inherent, human rights are not granted by the State
but can only be recognized and protected by it." 26
"(Human rights include all) the civil, political, economic, social, and cultural rights defined
in the Universal Declaration of Human Rights." 27
"Human rights are rights that pertain to man simply because he is human. They are part
of his natural birth right, innate and inalienable." 28
The Universal Declaration of Human Rights, as well as, more specifically, the International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil
and Political Rights, suggests that the scope of human rights can be understood to include
those that relate to an individual's social, economic, cultural, political and civil relations.
It thus seems to closely identify the term to the universally accepted traits and attributes
of an individual, along with what is generally considered to be his inherent and inalienable
rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986
Constitution Commission in adopting the specific provisions on human rights and in
creating an independent commission to safeguard these rights? It may of value to look
back at the country's experience under the martial law regime which may have, in fact,
impelled the inclusions of those provisions in our fundamental law. Many voices have been
heard. Among those voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil
liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines,"
29 observes:
"But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most
of the human rights expressed in the International Covenant, these rights became
unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action
then became the rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods, sometimes for years, without
charges, until ordered released by the Commander-in-Chief or this representative. The
right to petition for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to censorship and
short term licensing. Martial law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure, except members of the
Supreme Court. They were required to submit letters of resignation and were dismissed
upon the acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of
Jurists."
Converging our attention to the records of the Constitutional Commission, we can see the
following discussions during its 26 August 1986 deliberations:
"MR. GARCIA. . . ., the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its impact
and the precise nature of its task, hence, its effectivity would also be curtailed.
"So, it is important to delineate the parameters of its tasks so that the commission can be
most effective.
"MR. BENGZON. That is precisely my difficulty because civil and political rights are very
broad. The Article on the Bill of Rights covers civil and political rights. Every single right
of an individual involves his civil right or his political right. So, where do we draw the line?
"MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of Human
Rights which addresses a number of articles on the right to life, the right against torture,
the right to fair and public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal instruments as
constituting civil and political rights, and these are precisely what we want to defend here.
"MR. BENGZON. So, would the commissioner say civil and political rights as defined in
the Universal Declaration of Human Rights?
"MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this against torture.
"MR. BENGZON. So as to distinguish this from the other rights that we have?
"MR. GARCIA. Yes, because the other rights will encompass social and economic rights,
and there are other violations of rights of citizens which can be addressed to the proper
courts and authorities.
"xxx xxx xxx
"MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings cases
which perhaps heretofore or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I correct?
"MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the international
standards governing the behavior of governments regarding the particular political and
civil rights of citizens, especially of political detainees or prisoners. This particular aspect
we have experienced during martial law which we would now like to safeguard.
"MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really
trying to say is, perhaps, at the proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human rights. Those are the rights
that we envision here?
"MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution.
They are integral parts of that.
"MR. BENGZON. Therefore, is the Gentleman saying that all rights under the Bill of Rights
covered by human rights?
"MR. GARCIA. No, only those that pertain to civil and political rights.
"xxx xxx xxx
"MR. RAMA. In connection with the discussion on the scope of human rights, I would like
to state that in the past regime, everytime we invoke the violation of human rights, the
Marcos regime came out with the defense that, as a matter of fact, they had defended the
rights of people to decent living, food, decent housing and a life consistent with human
dignity.
"So, I think we should really limit the definition of human rights to political rights. Is that
the sense of the committee, so as not to confuse the issue?
"MR. SARMIENTO. Yes, Madam President.
"MR. GARCIA. I would like to continue and respond also to repeated points raised by the
previous speaker.
"There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and the
prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings
and hamletting; and 6) other crimes committed against the religious.
"xxx xxx xxx
"The PRESIDENT. Commissioner Guingona is recognized.
"MR. GUINGONA. Thank You Madam President.
"I would like to start by saying that I agree with Commissioner Garcia that we should, in
order to make the proposed Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the concept and jurisdictional area
of the term 'human rights' . I was actually disturbed this morning when the reference was
made without qualification to the rights embodied in the universal Declaration of Human
Rights, although later on, this was qualified to refer to civil and political rights contained
therein.
"If I remember correctly, Madam President, Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of 1948, mentioned or linked the concept of
human right with other human rights specified in other convention which I do not
remember. Am I correct?
"MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?
"MR. GUINGONA. I do not know, but the commissioner mentioned another.
"MR. GARCIA. Madam President, the other one is the International Convention on Civil
and Political Rights of which we are signatory.
"MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal
Declaration of Human Rights here, I do not have a copy of the other covenant mentioned.
It is quite possible that there are rights specified in that other convention which may not
be specified here. I was wondering whether it would be wise to link our concept of human
rights to general terms like 'convention', rather than specify the rights contained in the
convention.
"As far as the Universal Declaration of Human Rights is concerned, the Committee, before
the period of amendments, could specify to us which of these articles in the Declaration
would fall within the concept of civil and political rights, not for the purpose of including
these in the proposed constitutional article, but to give the sense of the Commission as to
what human rights would be included, without prejudice to expansion later on, if the need
arises. For example, there was no definite reply to the question of Commissioner Regalado
as to whether the right to marry would be considered a civil or a social right. It is not a
civil right?
"MR. GARCIA. Madam President, I have to repeat the various specific civil and political
rights that we felt must be envisioned initially by this provision — freedom from political
detention and arrest prevention of torture, right to fair and public trials, as well as crimes
involving disappearance, salvagings, hamlettings and collective violations. So, it is limited
to politically related crimes precisely to protect the civil and political rights of a specific
group of individuals, and therefore, we are not opening it up to all of the definite areas.
"MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-called
civil or political rights as contained in the Universal Declaration of Human Rights.
"MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was
referring to an international instrument.
"MR. GUINGONA. I know.
"MR. GARCIA. But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we understand
it in this Commission on Human Rights.
"MR. GUINGONA. Madam President, I am not clear as to the distinction between social
and civil rights.
"MR. GARCIA. There are two international covenants: the International Covenant and Civil
and Political Rights and the International Covenant on Economic, Social and Cultural
Rights. The second covenant contains all the different rights — the rights of labor to
organize, the right to education, housing, shelter, et cetera.
"MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.
"MR. GARCIA. Yes, to civil and political rights.
"MR. GUINGONA. Thank you.
"xxx xxx xxx
"SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot
stress more on how much we need a Commission on Human Rights. . . .
". . . human rights victims are usually penniless. They cannot pay and very few lawyers
will accept clients who do not pay. And so, they are the ones more abused and oppressed.
Another reason is, the cases involved are very delicate — torture, salvaging, picking up
without any warrant of arrest, massacre — and the persons who are allegedly guilty are
people in power like politicians, men in the military and big shots. Therefore, this Human
Rights Commission must be independent.
"I would like very much to emphasize how much we need this commission, especially for
the little Filipino, the little individual who needs this kind of help and cannot get it. And I
think we should concentrate only on civil and political violations because if we open this
to land, housing and health, we will have no place to go again and we will not receive any
response. . . ." 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a
provision empowering the Commission on Human Rights to "investigate, on its own or on
complaint by any party, all forms of human rights violations involving civil and political
rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring —
"(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense,
to all its inhabitants, and are not connected with the organization or administration of
government. They include the rights of property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also refer, in
its general sense, to rights capable of being enforced or redressed in a civil action."
Also quite often mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of suffrage,
the right to hold public office, the right of petition and, in general, the rights appurtenant
to citizenship vis-a-vis the management of government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily
apparent that the delegates envisioned a Commission on Human Rights that would focus
its attention to the more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases
of disappearances, (5) salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to have any preclusive
effect, more than just expressing a statement of priority, it is, nonetheless, significant for
the tone it has set. In any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of investigatorial
jurisdiction. They have thus seen it fit to resolve, instead, that "Congress may provide for
other cases of violations of human rights that should fall within the authority of the
Commission, taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished are
the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a "People's Park." More than
that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial
notice of, is a busy national highway. The consequent danger to life and limb is thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been
violated is one that cannot, in the first place, even be invoked, if it is not, in fact, extant.
Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are not prepared to conclude that the order
for the demolition of the stalls, sari-sari stores and carinderia of the private respondents
can fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court." Accordingly, the CHR acted within its authority in
providing in its revised rules, its power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court." That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor
summons, and the like, in pursuing its investigative work. The "order to desist" (a semantic
interplay for a restraining order) in the instance before us, however, is not investigatorial
in character but prescinds from an adjudicative power that it does not possess. In Export
Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking
through Madame Justice Carolina Griño-Aquino, explained:
"The constitutional provision directing the CHR to 'provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or need
protection' may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention, the Constitution would
have expressly said so. 'Jurisdiction is conferred only by the Constitution or by law'. It is
never derived by implication."
"Evidently, the 'preventive measures and legal aid services' mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction)
which the CHR may seek from the proper courts on behalf of the victims of human rights
violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ,
for a writ of preliminary injunction may only be issued `by the judge of any court in which
the action is pending [within his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available
only in a pending principal action, for the preservation or protection of the rights and
interests of a party thereto, and for no other purpose." (footnotes omitted).
The Commission does not have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of
financial aid to the vendors affected by the demolition is not an appropriate issue in the
instant petition. Not only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the petitioners
has become moot and academic since the case before it (CHR Case No. 90-1580) has
already been fully heard, and that the matter is merely awaiting final resolution. It is true
that prohibition is a preventive remedy to restrain the doing of an act about to be done,
and not intended to provide a remedy for an act already accomplished. 38 Here, however,
said Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-
1580. The instant petition has been intended, among other things, to also prevent CHR
from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on
Human Rights is hereby prohibited from further proceeding with CHR Case No. 90-1580
and from implementing the P500.00 fine for contempt. The temporary restraining order
heretofore issued by this Court is made permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo,
Melo, Quiason and Puno, JJ., concur.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Cariño, et al. vs. The Commission on Human rights, et
al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the resolution of 29
January 1991 and my dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights, et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I
am of the most considered view that the CHR can issue a cease and desist order to
maintain a status quo pending its investigation of a case involving an alleged human rights
violation; that such cease and desist order may be necessary in situations involving a
threatened violation of human rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of the stalls, sari-sari
stores and carinderias as well as the temporary shanties owned by the private respondents
as posing prima facie a case of human rights violation because it involves an impairment
of the civil rights of said private respondents, under the definition of civil rights cited by
the majority opinion (pp. 20-21) and which the CHR has unquestioned authority to
investigate (Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend beyond impressive displays of
placards at street corners. Positive action and results are what count. Certainly, the cause
of human rights is not enhanced when the very constitutional agency tasked to protect
and vindicate human rights is transformed by us, from the start, into a tiger without
dentures but with maimed legs to boot. I submit the CHR should be given a wide latitude
to look into and investigate situations which may (or may not ultimately) involve human
rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for
further proceedings.
SECOND DIVISION
[A.M. No. 1120-MJ. May 5, 1976.]
DOMINADOR C. BALDOZA, complainant, vs. HON. JUDGE RODOLFO B. DIMAANO,
respondent.
SYNOPSIS
Respondent Municipal Judge was administratively charged with abuse of authority in
refusing to allow the employees of the Municipal Mayor of Taal to examine the criminal
docket records of the Municipal Court to secure data in connection with their
contemplated report on the peace and order situation of the municipality. In his answer,
respondent claimed that he merely imposed restrictions on the matter of examination,
inspection, or copying of his court records for fear that the right might be abused and the
dirty hands of partisan politics might again be at play.
During the preliminary hearing of the case,. the Municipality Mayor moved to dismiss the
complaint to preserve the harmony and cooperation among the officials of the municipality
but the inquest Judge denied the motion. After the formal investigation, the investigating
Judge recommended respondent's exoneration.
The Supreme Court finding respondent to have acted properly, exonerated him.
Complaint dismissed.
SYLLABUS
1. PUBLIC OFFICE; PUBLIC RECORDS; ACCESS TO PUBLIC RECORDS. — In a
democracy, the public has a legitimate interest in matters of social and political
significance, hence, the people's right of free access to public records is predicated on their
right to acquire information on matters of public concern.
2. ID.; ID.; ID.; MANDAMUS AVAILABLE TO COMPEL PUBLIC OFFICERS TO ALLOW
INSPECTION OF PUBLIC RECORDS IN THEIR CUSTODY. — Mandamus would lie to
compel a public official to allow an interested party access to the records in his custody.
Thus, predicating the right to examine public records on statutory provisions and to a
certain degree by general principles of democratic institutions, this Court stated that while
the Register of Deeds has discretion to determine the manner in which persons desiring
to inspect, examine or copy the records in his office may exercise their rights, such power
does not carry with it the authority to prohibit.
3. ID.; ID.; ID.; CONSTITUTIONAL LAW; PRESS FREEDOM; ACCESS TO PUBLIC
RECORDS PART OF THE FREEDOM OF THE PRESS. — Public's right of access to public
records is not merely predicated on statutory right but on the constitutional right of the
press to have access to information as the essence of press freedom (Concurring opinion
of Justice Briones in Sabido vs. Ozaeta, 80 Phil. 383).
4. ID.; ID.; ID.; ID.; ACCESS TO PUBLIC RECORDS, NOW A CONSTITUTIONAL RIGHT;
PHILOSOPHY THEREFOR. — The New Constitution now expressly recognizes that the
people are entitled to information on matters of public concern and thus are expressly
granted to access to official records, as well as documents of official acts, or transactions,
or decisions, subject to such limitations imposed by law. The incorporation of this right in
the Constitution is a recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public of the nation's problems,
nor a meaningful democratic decision-making if they are denied access to information of
general interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination since, if
either process is interrupted, the flow inevitably ceases."
5. ID.; ID.; ID.; ID.; ID.; ACCESS RESTRICTIONS PERMISSIBLE. — Restriction on
access to certain records may be imposed by law. Thus, access restrictions imposed to
control civil insurrection have been permitted upon a showing of immediate and
impending danger that renders ordinary means of control inadequate to maintain order.
RESOLUTION
ANTONIO, J p:
In a verified letter-complaint dated September 9, 1975, the Municipal Secretary of Taal,
Batangas, charges Municipal Judge Rodolfo B. Dimaano, of the same municipality, with
abuse of authority in refusing to allow employees of the Municipal Mayor to examine the
criminal docket records of the Municipal Court to secure data in connection with their
contemplated report on the peace and order conditions of the said municipality.
Respondent, in answer to the complaint, stated that there has never been an intention to
refuse access to official court records; that although court records are among public
documents open to inspection not only by the parties directly involved but also by other
persons who have legitimate interest to such inspection, yet the same is always subject to
reasonable regulation as to who, when, where and how they may be inspected. He further
asserted that a court has unquestionably the power to prevent an improper use or
inspection of its records and the furnishing of copies therefrom may be refused where the
person requesting is not motivated by a serious and legitimate interest but acts out of
whim or fancy or mere curiosity or to gratify private spite or to promote public scandal.
In his Answer, the respondent significantly observed:
"Restrictions are imposed by the Court for fear of an abuse in the exercise of the right. For
fear that the dirty hands of partisan politics might again be at play. Some of the cases filed
and decided by the Court after the declaration of Martial Law and years after the election
still bore the stigma of partisan politics as shown in the affidavits and testimonies of
witnesses.
"Without casting aspersion on any particular individual, it is worth mentioning, that the
padlocks of the door of the Court has recently been tampered by inserting papers and
matchsticks.
"Under the circumstances, to allow an indiscriminate and unlimited-exercise of the right
to free access, might do more harm than good to the citizenry of Taal. Disorder and chaos
might result defeating the very essence of their request. The undersigned is just as
interested as Mr. Baldoza in the welfare of the community and the preservation of our
democratic principles.
"Be that as it may, a request of this magnitude cannot be immediately granted without
adequate deliberation and upon advisement, especially so in this case where the
undersigned doubts the propriety of such request. Hence, it is believed that authority
should first be secured from the Supreme Court, through the Executive Judge, for the
formulation of guidelines and policies on this matter."
The case was thereupon referred to Judge Francisco Mat. Riodique for investigation and
report. At the preliminary hearing on October 16, 1975, Taal Mayor Corazon A. Cañiza
filed a motion to dismiss the complaint to preserve harmony and cooperation among
officers in the same municipality. This motion was denied by the Investigating Judge, but
after formal investigation, he recommended the exoneration of respondent. Pertinent
portion of his report reads as follows: LLphil
". . . When this case was heard, complainant Dominador Baldoza informed the Court that
he is aware of the motion to dismiss filed by Mayor Corazon A. Cañiza and that he is in
conformity with the dismissal of the administrative charge against Judge Rodolfo
Dimaano, The Court asked him if he could prove his case and he said he can. So, the
Court denied his oral motion to dismiss and required him to present his evidence.
Complainant only manifested to the Court that he has no oral evidence. The only evidence
he has are the exchanged communication which were all in writing and attached to the
record between him and the respondent. The Court asked the respondent what he has to
say on the documentary evidence of the complainant. He manifested that all his answers
to the complaint are all embodied in his answers filed with the Court.
"A careful perusal, scrutiny, and study of the communications between the complainant
and the respondent, together with the answers filed by the latter, reveal that there is no
showing of abuse of authority on the part of the respondent. The respondent allowed the
complainant to open and view the docket books of the respondent under certain conditions
and under his control and supervision. Complainant admitted that he was aware of the
rules and conditions imposed by the respondent when he went to his office to view his
docket books for the purpose mentioned in his communication. He also agreed that he is
amenable to such rules and conditions which the respondent may impose. Under these
conditions, therefore, the Court finds that the respondent has not committed any abuse
of authority.
"The complainant was warned to be more cautious in filing any administrative charge
against any public official especially, members of the judiciary, considering that an
administrative charge against a member of the judiciary may expose the latter to public
ridicule and scandal thereby minimizing if not eradicating public trust and confidence."
After a careful evaluation of the recommendation, We find that the respondent did not act
arbitrarily in the premise. As found by the Investigating Judge, the respondent allowed
the complainant to open and view the docket books of respondent under certain conditions
and under his command and supervision. It has not been shown that the rules and
conditions imposed by the respondent were unreasonable. The access to public records is
predicated on the right of the people to acquire information on matters of public concern.
Undoubtedly in a democracy, the public has a legitimate interest in matters of social and
political significance. In an earlier case, 1 this Court held that mandamus would lie to
compel the Secretary of Justice and the Register of Deeds to examine the records of the
latter office. Predicating the right to examine the records on statutory provisions, and to a
certain degree by general principles of democratic institutions, this Court stated that while
the Register of Deeds has discretion to exercise as to the manner in which persons desiring
to inspect, examine or copy the records in his office may exercise their rights, such power
does not carry with it authority to prohibit. Citing with approval People ex rel. Title
Guarantee & T. Co. vs. Railly, 2 this Court said:
"The subject is necessarily committed, to a great degree, to his (register of deeds')
discretion as to how much of the conveniences of the office are required to be preserved
for the accommodation of these persons. It is not his duty to permit the office to be
thronged needlessly with persons examining its books of papers, but it is his duty to
regulate, govern, and control his office in such a manner as to permit the statutory
advantages to be enjoyed-by other persons not employed by him as largely and extensibly
as that consistently can be done . . . What the law expects and requires from him is the
exercise of an unbiased and impartial judgment, by which all persons resorting to the
office, under legal authority, and conducting themselves in an orderly manner, shall be
secured their lawful rights and privileges, and that a corporation formed in the manner in
which the relator has been, shall be permitted to obtain all the information either by
searches, abstracts, or copies, that the law has entitled it to obtain.'
"Except, perhaps, when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration officers
to concern themselves with the motives, reasons, and objects of the person seeking access
to the records. It is not their prerogative to see that the information which the records
contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong
to publish the contents of the records, it is the legislature and not the officials having
custody thereof which is called upon to devise a remedy. As to the moral or material injury
which the publication might inflict on other parties, that is the publisher's responsibility
and lookout. The publication is made subject to the consequences of the law." LexLib
The concurring opinion of Justice Briones predicated such right not on statutory grounds
merely but on the constitutional right of the press to have access to information as the
essence of press freedom. 3
The New Constitution now expressly recognizes that the people are entitled to information
on matters of public concern and thus are expressly granted access to official records, as
well as documents of official acts, or transactions, or decisions, subject to such limitations
imposed by law. 4 The incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful democratic
decision-making if they are denied access to information of general interest. Information
is needed to enable the members of society to cope with the exigencies of the times. As has
been aptly observed: "Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is interrupted, the flow
inevitably ceases." 5 However, restrictions on access to certain records may be imposed
by law. Thus, access restrictions imposed to control civil insurrection have been permitted
upon a showing of immediate and impending danger that renders ordinary means of
control inadequate to maintain order. 6
WHEREFORE, the case against respondent is hereby dismissed.
Fernando (Actg. C.J.), Barredo (Actg. Chairman), Aquino and Martin, JJ., concur.
Concepcion, Jr., J., is on leave.
Martin, J., was designated to sit in the Second Division.
EN BANC
[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.
[G.R. No. 171409. May 3, 2006.]
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., petitioners, vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, respondents.
[G.R. No. 171485. May 3, 2006.]
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,
AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,
ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL
G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN,
NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY AMADO GAT INCIONG, petitioners, vs. EDUARDO R.
ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP, respondents.
[G.R. No. 171483. May 3, 2006.]
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND
SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL
PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA,
EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, petitioners, vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO, respondents.
[G.R. No. 171400. May 3, 2006.]
ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. EXECUTIVE SECRETARY
EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO, respondents.
[G.R. No. 171489. May 3, 2006.]
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR
M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI,
J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), petitioners, vs. HON. EXECUTIVE
SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS
AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY
AS PNP CHIEF, respondents.
[G.R. No. 171424. May 3, 2006.]
LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY
AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO
SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, respondents.
DECISION
SANDOVAL-GUTIERREZ, J p:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary. 1 Superior strength — the use of force — cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty. EIcSDC
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said:
"In cases involving liberty, the scales of justice should weigh heavily against government
and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak."
Laws and actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend
and preserve democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does
the Constitution of a free people combine the degree of liberty, without which, law becomes
tyranny, with the degree of law, without which, liberty becomes license? 3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of
the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which
states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed
forces to prevent or suppress . . . rebellion. . . ," and in my capacity as their Commander-
in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence as well
as any act of insurrection or rebellion and to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my direction; and
as provided in Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists — the historical enemies of the democratic
Philippine State — who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State — by obstructing
governance including hindering the growth of the economy and sabotaging the people's
confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation
of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people; SHECcD
On the same day, the President issued G.O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists — the historical enemies of the democratic
Philippine State — and who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly-constituted Government
elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the people's
confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State
of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in
me under the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No.
1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism
and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers
and men of the AFP and PNP, to immediately carry out the necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence.
CaATDE
On March 3, 2006, exactly one week after the declaration of a state of national emergency
and after all these petitions had been filed, the President lifted PP 1017. She issued
Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated
that the proximate cause behind the executive issuances was the conspiracy among some
military officers, leftist insurgents of the New People's Army (NPA), and some members of
the political opposition in a plot to unseat or assassinate President Arroyo. 4 They
considered the aim to oust or assassinate the President and take-over the reigns of
government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation
from petitioners' counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents' task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated hereunder, for
the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group
indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude arrest at all costs.
They called upon the people to "show and proclaim our displeasure at the sham regime.
Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I"
which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself. 6 Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The next day, at the
height of the celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes
of the meetings between members of the Magdalo Group and the National People's Army
(NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents. 7 Prior to his arrest, Lt. San Juan announced through DZRH that the
"Magdalo's D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."
TAaIDH
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." cDACST
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. AcDaEH
Respondents further claimed that the bombing of telecommunication towers and cell sites
in Bulacan and Bataan was also considered as additional factual basis for the issuance of
PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the
death of three (3) soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from
the provinces in mass protests. 10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order situation.
She directed both the AFP and the PNP to account for all their men and ensure that the
chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in
all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked
the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President's mind were organized for
purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including media, can
already be implemented." 11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the massed
participants. The same police action was used against the protesters marching forward to
Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue
and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies. TacSAE
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas, president of party-list
Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O.
No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories
by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from
Camp Crame in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed outside the
building. 13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a
'strong presence,' to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the
state of national emergency." Director General Lomibao stated that "if they do not follow
the standards — and the standards are — if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 — we will recommend a 'takeover.'" National Telecommunications' Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security
is threatened. 14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985.
Beltran's lawyer explained that the warrant, which stemmed from a case of inciting to
rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not
a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police. ADaECI
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him
during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative
Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative
Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office
in Davao City. Later, he was turned over to the custody of the House of Representatives
where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is 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. HDTISa
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers only
to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no
emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative
powers"; "violation of freedom of expression" and "a declaration of martial law." They
alleged that President Arroyo "gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless violence and a
showing that there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo
the power to enact laws and decrees; (2) their issuance was without factual basis; and (3)
they violate freedom of expression and the right of the people to peaceably assemble to
redress their grievances. aTEHIC
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017
and G.O. No. 5 are unconstitutional because they violate (a) Section 4 15 of Article II, (b)
Sections 1, 16 2, 17 and 4 18 of Article III, (c) Section 23 19 of Article VI, and (d) Section
17 20 of Article XII of the Constitution. IcDCaS
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
"it amounts to an exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and
G.O. No. 5 are "unconstitutional for being violative of the freedom of expression, including
its cognate rights such as freedom of the press and the right to access to information on
matters of public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances prevented her from fully
prosecuting her election protest pending before the Presidential Electoral Tribunal.
IaESCH
In respondents' Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and
fifth, PP 1017 does not violate the people's right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard petitioners on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
DcHaET
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483
(KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I — Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison. 21 This concept rests on the
extraordinary simple foundation —
The Constitution is the supreme law. It was ordained by the people, the ultimate source
of all political authority. It confers limited powers on the national government. . . . If the
government consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus
to vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review. 22
But the power of judicial review does not repose upon the courts a "self-starting capacity."
23 Courts may exercise such power only when the following requisites are present: first,
there must be an actual case or controversy; second, petitioners have to raise a question
of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to
the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon. HICSTa
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations
of parties having adverse legal interest;" a real and substantial controversy admitting of
specific relief. 25 The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered "moot and academic" by
President Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, 26 so that a declaration thereon would be of no practical use or
value. 27 Generally, courts decline jurisdiction over such case 28 or dismiss it on ground
of mootness. 29
The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts?
These are the vital issues that must be resolved in the present petitions. It must be
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative." 30
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; 31 second, the exceptional
character of the situation and the paramount public interest is involved; 32 third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; 33 and fourth, the case is capable of repetition yet evading
review. 34
All the foregoing exceptions are present here and justify this Court's assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that the issues being raised
affect the public's interest, involving as they do the people's basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. 35 And lastly,
respondents' contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review. IScaAE
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary. 36
However, they failed to take into account the Chief Justice's very statement that an
otherwise "moot" case may still be decided "provided the party raising it in a proper case
has been and/or continues to be prejudiced or damaged as a direct result of its issuance."
The present case falls right within this exception to the mootness rule pointed out by the
Chief Justice.
II — Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question."
37 In private suits, standing is governed by the "real-parties-in interest" rule as contained
in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
"every action must be prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured
by the judgment in the suit or the party entitled to the avails of the suit." 38 Succinctly
put, the plaintiff's standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently from
any other person. He could be suing as a "stranger," or in the category of a "citizen," or
'taxpayer." In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of
the public order and the securing of relief as a "citizen" or "taxpayer. cCEAHT
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, 39 where it was held
that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's
suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: 40 "In matter of mere public right, however
. . . the people are the real parties. . . It is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan 41 held
that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, 42 later reaffirmed in Tileston v. Ullman.
43 The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, 44 it held
that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury
as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate, 45 Manila Race Horse Trainers' Association v. De la Fuente, 46
Pascual v. Secretary of Public Works 47 and Anti-Chinese League of the Philippines v.
Felix. 48
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, 49 where the "transcendental importance" of the
cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, 50 this Court resolved to pass upon the issues raised
due to the "far-reaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases: DcCIAa
(1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement
of the constitutional right to information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary, 54 while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves
the exercise of Congress' taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora, 55 that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators. STADIH
Significantly, recent decisions show a certain toughening in the Court's attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of Kilosbayan as a people's
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover,
it cannot sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, 57
the Court reiterated the "direct injury" test with respect to concerned citizens' cases
involving constitutional issues. It held that "there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal official
act."
In Lacson v. Perez, 58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself
or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary, 59 the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration
of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social
Justice Society, the Court declared them to be devoid of standing, equating them with the
LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest"
and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so,
the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be represented
by their Congressmen in bringing to the attention of the Court the alleged violations of
their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,
60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 61 Association
of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 62 Basco v.
Philippine Amusement and Gaming Corporation, 63 and Tañada v. Tuvera, 64 that when
the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws. TCIHSa
In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations may
be granted standing to assert the rights of their members. 65 We take judicial notice of
the announcement by the Office of the President banning all rallies and canceling all
permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora, 66 the Court held that the mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental importance of the
issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that
she is a former Senator is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O.
No. 5. Her claim that she is a media personality will not likewise aid her because there
was no showing that the enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus standi. aETDIc
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, 67 may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head
of State, if he can be dragged into court litigations while serving as such. Furthermore, it
is important that he be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties and functions. Unlike
the legislative and judicial branch, only one constitutes the executive branch and anything
which impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not accountable to anyone.
Like any other official, he remains accountable to the people 68 but he may be removed
from office only in the mode provided by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President's exercise of
his Commander-in-Chief power has reached its distilled point — from the indulgent days
of Barcelona v. Baker 70 and Montenegro v. Castaneda 71 to the volatile era of Lansang
v. Garcia, 72 Aquino, Jr. v. Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war
always cuts across the line defining "political questions," particularly those questions "in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government." 75 Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took the opposite
view. There, the members of the Court were unanimous in the conviction that the Court
has the authority to inquire into the existence of factual bases in order to determine their
constitutional sufficiency. From the principle of separation of powers, it shifted the focus
to the system of checks and balances, "under which the President is supreme, . . . only if
and when he acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which in
this respect, is, in turn, constitutionally supreme." 76 In 1973, the unanimous Court of
Lansang was divided in Aquino v. Enrile. 77 There, the Court was almost evenly divided
on the issue of whether the validity of the imposition of Martial Law is a political or
justiciable question. 78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang.
It declared that there is a need to re-examine the latter case, ratiocinating that "in times
of war or national emergency, the President must be given absolute control for the very
life of the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God." 79
The Integrated Bar of the Philippines v. Zamora 80 — a recent case most pertinent to these
cases at bar — echoed a principle similar to Lansang. While the Court considered the
President's "calling-out" power as a discretionary power solely vested in his wisdom, it
stressed that "this does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion." This ruling is mainly a result of the Court's reliance
on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the political departments.
Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but
also "to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before a forbidden territory, to wit, the
discretion of the political departments of the government. 81 It speaks of judicial
prerogative not only in terms of power but also of duty. 82
As to how the Court may inquire into the President's exercise of power, Lansang adopted
the test that "judicial inquiry can go no further than to satisfy the Court not that the
President's decision is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness. 83 In Integrated Bar of the
Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis" and that if he fails, by way of
proof, to support his assertion, then "this Court cannot undertake an independent
investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's
Consolidated Comment and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned
are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the Intelligence
Report and Security Group of the Philippine Army showing the growing alliance between
the NPA and the military. Petitioners presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid. aTcSID
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was lawless
violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject — the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle
to the promptness of action necessary to avert catastrophe. In these situations, the Crown
retained a prerogative "power to act according to discretion for the public good, without
the proscription of the law and sometimes even against it." 84 But Locke recognized that
this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall
judge the need for resorting to the prerogative and how may its abuse be avoided? Here,
Locke readily admitted defeat, suggesting that "the people have no other remedy in this,
as in all other cases where they have no judge on earth, but to appeal to Heaven." 85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring about,
at a time of crisis, the ruin of the State. . .
It is wrong therefore to wish to make political institutions as strong as to render it
impossible to suspend their operation. Even Sparta allowed its law to lapse. . .
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign authority. In such a case, there is no doubt about
the general will, and it clear that the people's first intention is that the State shall not
perish. 86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as
he termed it. For him, it would more likely be cheapened by "indiscreet use." He was
unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative government: "I am far
from condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship." 88
Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative. He
recognized and attempted to bridge this chasm in democratic political theory, thus:
AScHCD
Now, in a well-ordered society, it should never be necessary to resort to extra-
constitutional measures; for although they may for a time be beneficial, yet the precedent
is pernicious, for if the practice is once established for good objects, they will in a little
while be disregarded under that pretext but for evil purposes. Thus, no republic will ever
be perfect if she has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it. 89
Machiavelli — in contrast to Locke, Rosseau and Mill — sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and vigor in its application
in time of emergency, with effective constitutional restraints. 90
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship. 91 Frederick M. Watkins saw "no reason why absolutism should not be used
as a means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life." 92 He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power." 93 Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship:
"The period of dictatorship must be relatively short. . . Dictatorship should always be
strictly legitimate in character. . . Final authority to determine the need for dictatorship in
any given case must never rest with the dictator himself . . ." 94 and the objective of such
an emergency dictatorship should be "strict political conservatism." HCacDE
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem
of concentrating power — in a government where power has consciously been divided —
to cope with . . . situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end." 96 Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: "The emergency executive
must be appointed by constitutional means — i.e., he must be legitimate; he should not
enjoy power to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency action must
be the defense of the constitutional order." 97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in
Great Britain, France, Weimar, Germany and the United States, reverted to a description
of a scheme of "constitutional dictatorship" as solution to the vexing problems presented
by emergency. 98 Like Watkins and Friedrich, he stated a priori the conditions of success
of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order. . .
2) . . . the decision to institute a constitutional dictatorship should never be in the
hands of the man or men who will constitute the dictator. . .
3) No government should initiate a constitutional dictatorship without making specific
provisions for its termination. . .
4) . . . all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements. . .
5) . . . no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the particular
crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should
never be permanent in character or effect. . .
7) The dictatorship should be carried on by persons representative of every part of the
citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute
one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was instituted. . . AcHSEa
11) the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship. . . 99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring
the existence or termination of an emergency, and he places great faith in the effectiveness
of congressional investigating committees. 100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory." To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder realistic
analysis. It matters not whether the term "dictator" is used in its normal sense (as applied
to authoritarian rulers) or is employed to embrace all chief executives administering
emergency powers. However used, "constitutional dictatorship" cannot be divorced from
the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full emphasis
is placed upon procedural limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling of government by
an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted
not in the weakening of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating constitutionalism with
"limited" as distinguished from "weak" government, McIlwain meant government limited
to the orderly procedure of law as opposed to the processes of force. The two fundamental
correlative elements of constitutionalism for which all lovers of liberty must yet fight are
the legal limits to arbitrary power and a complete political responsibility of government to
the governed. 101
In the final analysis, the various approaches to emergency of the above political theorists
— from Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship"
and, eventually, to McIlwain's "principle of constitutionalism" — ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and
checks. SADECI
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice Jackson's "balanced power
structure." 102 Executive, legislative, and judicial powers are dispersed to the President,
the Congress, and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of emergency. Each branch is given
a role to serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in times
of emergency, our Constitution reasonably demands that we repose a certain amount of
faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it
obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They
claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on
their faces" statutes in free speech cases, also known under the American Law as First
Amendment cases. 103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of
lawless violence. In United States v. Salerno, 104 the US Supreme Court held that "we
have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct." In
Broadrick v. Oklahoma, 105 it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held
void on its face and when 'such summary action' is inappropriate. But the plain import of
our cases is, at the very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to sanction moves from
'pure speech' toward conduct and that conduct —even if expressive — falls within the
scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct." 106 Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation. HSDCTA
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be
used "sparingly and only as a last resort," and is "generally disfavored;" 107 The reason
for this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to challenge
a law on the ground that it may conceivably be applied unconstitutionally to others, i.e.,
in other situations not before the Court. 108 A writer and scholar in Constitutional Law
explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so that
the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation
to petitioners, but on the assumption or prediction that its very existence may cause
others not before the Court to refrain from constitutionally protected speech or expression.
In Younger v. Harris, 109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show whether
this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too,
is unwarranted. STaCIA
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that
"a law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application." 110 It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces"
statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge
a statute on its face only if it is vague in all its possible applications. Again, petitioners did
not even attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Article VII . . . do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well any act of insurrection or
rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary, 111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ. AacCIT
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. DHIETc
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. DcITHE
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyo's calling-out power for the armed forces
to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing
laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among others, "execute its laws." 116
In the exercise of such function, the President, if needed, may employ the powers attached
to his office as the Commander-in-Chief of all the armed forces of the country, 117
including the Philippine National Police 118 under the Department of Interior and Local
Government. 119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Petitioners' contention is understandable. A reading of PP 1017 operative clause shows
that it was lifted 120 from Former President Marcos' Proclamation No. 1081, which partly
reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of
the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution,
do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution
under martial law and, in my capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: "to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction." Upon the other hand,
the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees . . . promulgated
by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order
No. 292 (Administrative Code of 1987). She may issue any of the following: DHATcE
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers
shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative head shall
be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all or some
of the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as
general or special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue
decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because
they were issued by the President in the exercise of his legislative power during the period
of Martial Law under the 1973 Constitution. 121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo's exercise of legislative
power by issuing decrees. SHDAEC
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows
that these decrees are void and, therefore, cannot be enforced. With respect to "laws," she
cannot call the military to enforce or implement certain laws, such as customs laws, laws
governing family and property relations, laws on obligations and contracts and the like.
She can only order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
. . . and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all the
laws and to all decrees . . ." but also to act pursuant to the provision of Section 17, Article
XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately-owned public utility or business affected with
public interest.
What could be the reason of President Arroyo in invoking the above provision when she
issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial
law" thinking of the 1971 Constitutional Convention. 122 In effect at the time of its
approval was President Marcos' Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the
present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the
legislature's emergency powers.
This is an area that needs delineation. DIEcHa
A distinction must be drawn between the President's authority to declare "a state of
national emergency" and to exercise emergency powers. To the first, as elucidated by the
Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state
of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to
war but also to "other national emergency." If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the Framers could
have provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency." The logical conclusion
then is that President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public
utility or business affected with public interest, is a different matter. This requires a
delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in the
light of each other. 123 Considering that Section 17 of Article XII and Section 23 of Article
VI, previously quoted, relate to national emergencies, they must be read together to
determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly,
a body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress. 124
Section 17, Article XII must be understood as an aspect of the emergency powers clause.
The taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that
the "the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether Congress
may delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Youngstown Sheet & Tube Co. et al. v. Sawyer, 125 held:
It is clear that if the President had authority to issue the order he did, it must be found in
some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The executive Power shall be
vested in a President . . . . ;" that "he shall take Care that the Laws be faithfully executed;"
and that he "shall be Commander-in-Chief of the Army and Navy of the United States.
DacASC
The order cannot properly be sustained as an exercise of the President's military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater
of war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such
to take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President
is to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ." 126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17,
Article XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a
limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying
the degree of existing danger to life or well-being beyond that which is accepted as normal.
Implicit in this definitions are the elements of intensity, variety, and perception. 127
Emergencies, as perceived by legislature or executive in the United States since 1933,
have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic, 128 b) natural disaster, 129 and c) national security. 130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include
rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect. 131 This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which
appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities
or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots? TcIaHC
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service. 132
xxx xxx xxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much. 133
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan, 134 this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"xxx xxx xxx
After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving peoples
in this system, with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features
of whose Constitution have been copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another department — unless we regard as
legislating the carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was engaged in a life-
and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are called
upon 'to perform the duties and discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.
HEScID
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest that should be
taken over. In short, the President has no absolute authority to exercise all the powers of
the State under Section 17, Article VII in the absence of an emergency powers act passed
by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed
that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant"
their office. Three policemen were assigned to guard their office as a possible "source of
destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. EHaDIC
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these
illegal acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused 135 and may afford an opportunity for abuse in the
manner of application. 136 The validity of a statute or ordinance is to be determined from
its general purpose and its efficiency to accomplish the end desired, not from its effects in
a particular case. 137 PP 1017 is merely an invocation of the President's calling-out power.
Its general purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted President
Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens' constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity
of the statute or ordinance is to be measured is the essential basis for the exercise of
power, and not a mere incidental result arising from its exertion. 138 This is logical. Just
imagine the absurdity of situations when laws may be declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are "acts and commands of the President in his capacity as Commander-in-Chief
of the Armed Forces of the Philippines." They are internal rules issued by the executive
officer to his subordinates precisely for the proper and efficient administration of law.
Such rules and regulations create no relation except between the official who issues them
and the official who receives them. 139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their object. 140 For these
reasons, one requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious. AIDcTE
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion,"
the phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet
to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"
confronts not only our country, but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions — or threats of the use of force as
the most recent by the United States against Iraq — consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the use of
the term "terrorism" may further be demonstrated by the historical fact that leaders of
national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled
as terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts — the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or self-
defense?
Since the times of the Cold War the United Nations Organization has been trying in vain
to reach a consensus on the basic issue of definition. The organization has intensified its
efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned. CSIcTa
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) — which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims — the Kashmiri resistance groups — who are terrorists
in the perception of India, liberation fighters in that of Pakistan — the earlier Contras in
Nicaragua — freedom fighters for the United States, terrorists for the Socialist camp — or,
most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during
the Cold War period they were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could go on and on in
enumerating examples of conflicting categorizations that cannot be reconciled in any way
— because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations
of one and the same group and its actions be explained? In our analysis, the basic reason
for these striking inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival, or adversary,
of an occupying power in a given territory, the definition of terrorism will "fluctuate"
accordingly. A state may eventually see itself as protector of the rights of a certain ethnic
group outside its territory and will therefore speak of a "liberation struggle," not of
"terrorism" when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine
in each and every instance how a particular armed movement (i.e. a non-state actor) is
labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign states — and not
of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! — has
become even more serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the problem has
become even more acute since the terrorist attacks of 11 September 2001 I the United
States. 141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may consider the act as an act
of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered
a crime if there is a law defining the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This
decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned
in the following provision: "That one who conspires with any other person for the purpose
of overthrowing the Government of the Philippines . . . by force, violence, terrorism, . . .
shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism,"
it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what
acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants, breaking into offices
and residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless violence,
the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.) cDaEAS
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things
to be seized." 142 The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest. 143
In the Brief Account 144 submitted by petitioner David, certain facts are established: first,
he was arrested without warrant; second, the PNP operatives arrested him on the basis of
PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880 145 and
Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was
eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
xxx xxx xxx.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless
arrest. During the inquest for the charges of inciting to sedition and violation of BP 880,
all that the arresting officers could invoke was their observation that some rallyists were
wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that
petitioner David was the leader of the rally. 146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing it, such
fact is insufficient to charge him with inciting to sedition. Further, he also stated that
there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances. IEHScT
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not
to be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v. Oregon, 148 it
was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings
for peaceable political action cannot be proscribed. Those who assist in the conduct of
such meetings cannot be branded as criminals on that score. The question, if the rights
of free speech and peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the public peace
and order, they may be prosecuted for their conspiracy or other violations of valid laws.
But it is a different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public discussion as
the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest
of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal
was done merely on the basis of Malacañang's directive canceling all permits previously
issued by local government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of assembly is not to
be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent." 149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizens' right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was eliminated.
aTIAES
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of
their permits. 150 The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a person's right is restricted by government action,
it behooves a democratic government to see to it that the restriction is fair, reasonable,
and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e.,
the freedom of the press. Petitioners' narration of facts, which the Solicitor General failed
to refute, established the following: first, the Daily Tribune's offices were searched without
warrant; second, the police operatives seized several materials for publication; third, the
search was conducted at about 1:00 o'clock in the morning of February 25, 2006; fourth,
the search was conducted in the absence of any official of the Daily Tribune except the
security guard of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards — and the standards are if they would contribute to instability
in the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 — we will recommend a 'takeover.'" National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He warned that his agency will not hesitate
to recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened. 151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the
steps in the conduct of search and seizure. Section 4 requires that a search warrant be
issued upon probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that the search of a house, room,
or any other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2) witnesses
of sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted that it
be served at any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners' freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In the
Burgos v. Chief of Staff 152 this Court held that —
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan
Mail" and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what he is permitted to say on pain
of punishment should he be so rash as to disobey. 153 Undoubtedly, the The Daily Tribune
was subjected to these arbitrary intrusions because of its anti-government sentiments.
This Court cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is essential to the
vitality of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis. 154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune's offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible "for any purpose," thus: cIaHDA
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose. 155
xxx xxx xxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 o'clock in the morning
and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily Tribune
or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
 As far as I know, no, Your Honor, from the facts, no. DITEAc
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature
to say this, we do not condone this. If the people who have been injured by this would
want to sue them, they can sue and there are remedies for this. 156
Likewise, the warrantless arrests and seizures executed by the police were, according to
the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame
the President for, as you said, a misapplication of the law. These are acts of the police
officers, that is their responsibility. 157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied according
to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens' rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal. DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached
hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 — a supervening event —
would have normally rendered this case moot and academic. However, while PP 1017 was
still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there
is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if
the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues
raised by the parties should not be "evaded;" they must now be resolved to prevent future
constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call
by the President for the AFP to prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017's extraneous provisions giving the President express
or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws
even those not related to lawless violence as well as decrees promulgated by the President;
and (3) to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot take over privately-
owned public utility and private business affected with public interest. SIEHcA
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President
— acting as Commander-in-Chief — addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard — that the military
and the police should take only the "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in
G.O. No. 5 have not been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP's authority in carrying out this portion of G.O.
No. 5. STcEaI
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear
that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3)
the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of
a democratic state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly restrain our
people's liberty. DECcAS
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority
to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed. 158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo
on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public interest without
prior legislation. DHcESI
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the
PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such portion
of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless violence,
invasion or rebellion and violating BP 880; the imposition of standards on media or any
form of prior restraint on the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and Garcia, JJ., concur.
Panganiban, C.J. and Ynares-Santiago, JJ., please see concurring opinion.
Puno, J., is on leave.
Carpio, J., also concurs with Chief Justice's opinion.
Corona, J., shares the dissenting opinion of Mr. Justice Tinga.
Carpio-Morales, J., the concurring opinion of the Chief Justice merits also my
concurrence.
Callejo, Sr., J., also concurs with the concurring opinion of Chief Justice Panagniban.
Tinga, J., please see dissenting opinion.
Velasco, Jr., J., joins the dissent of J. Tinga.
Separate Opinions
PANGANIBAN, C.J., concurring:
I was hoping until the last moment of our deliberations on these consolidated cases that
the Court would be unanimous in its Decision. After all, during the last two weeks, it
decided with one voice two equally contentious and nationally significant controversies
involving Executive Order No. 464 1 and the so-called Calibrated Preemptive Response
policy. 2
However, the distinguished Mr. Justice Dante O. Tinga's Dissenting Opinion has made
that hope an impossibility. I now write, not only to express my full concurrence in the
thorough and elegantly written ponencia of the esteemed Mme. Justice Angelina Sandoval-
Gutierrez, but more urgently to express a little comment on Justice Tinga's Dissenting
Opinion (DO). cSIADa
The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing
wrong with PP 1017. It labels the PP a harmless pronouncement — "an utter superfluity"
— and denounces the ponencia as an "immodest show of brawn" that "has imprudently
placed the Court in the business of defanging paper tigers."
Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017
under its present language and nuance. I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the police — "to some
minds" — "may have flirted with power." With due respect, this is a masterful
understatement. PP 1017 may be a paper tiger, but — to borrow the colorful words of an
erstwhile Asian leader — it has nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits of presidential
prerogatives and the perseverance of this Court in safeguarding the people's
constitutionally enshrined liberty. They are playing with fire, and unless prudently
restrained, they may one day wittingly or unwittingly burn down the country. History will
never forget, much less forgive, this Court if it allows such misadventure and refuses to
strike down abuse at its inception. Worse, our people will surely condemn the misuse of
legal hocus pocus to justify this trifling with constitutional sanctities.
And even for those who deeply care for the President, it is timely and wise for this Court
to set down the parameters of power and to make known, politely but firmly, its dogged
determination to perform its constitutional duty at all times and against all odds. Perhaps
this country would never have had to experience the wrenching pain of dictatorship; and
a past President would not have fallen into the precipice of authoritarianism, if the
Supreme Court then had the moral courage to remind him steadfastly of his mortality and
the inevitable historical damnation of despots and tyrants. Let not this Court fall into that
same rut. HCTEDa
YNARES-SANTIAGO, J., concurring:
The only real security for social well-being is the free exercise of men's minds.
- Harold J. Laski, Professor of Government and Member of the British Labor Party, in his
book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin
Cardozo once wrote, are preserved against the assaults of opportunism, the expediency of
the passing hour, the erosion of small encroachments, the scorn and derision of those
who have no patience with general principles. 1 In an open and democratic society,
freedom of thought and expression is the matrix, the indispensable condition, of nearly
every other form of freedom. 2
I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President
Gloria Macapagal Arroyo declared a state of national emergency, and General Order No. 5
(GO No. 5), issued by the President pursuant to the same proclamation are both partly
unconstitutional. aEAcHI
I fully agree with the pronouncement that PP 1017 is no more than the exercise by the
President, as the Commander-in-Chief of all armed forces of the Philippines, of her power
to call out such armed forces whenever it becomes necessary to prevent or suppress
lawless violence, invasion or rebellion. This is allowed under Section 18, Article VII of the
Constitution.
However, such "calling out" power does not authorize the President to direct the armed
forces or the police to enforce laws not related to lawless violence, invasion or rebellion.
The same does not allow the President to promulgate decrees with the force and effect
similar or equal to laws as this power is vested by the Constitution with the legislature.
Neither is it a license to conduct searches and seizures or arrests without warrant except
in cases provided in the Rules of Court. It is not a sanction to impose any form of prior
restraint on the freedom of the press or expression or to curtail the freedom to peaceably
assemble or frustrate fundamental constitutional rights. STIHaE
In the case of Bayan v. Ermita 3 this Court thru Justice Adolfo S. Azcuna emphasized that
the right to peaceably assemble and petition for redress of grievances is, together with
freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm
of constitutional protection. These rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and
unprotected.
On the other hand, the direct reference to Section 17, Article XII of the Constitution as the
constitutional basis for the declaration of a state of national emergency is misplaced. This
provision can be found under the article on National Economy and Patrimony which
presupposes that "national emergency" is of an economic, and not political, nature.
Moreover, the said provision refers to the temporary takeover by the State of any privately-
owned public utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the public interest so requires
and subject to "reasonable terms" which the State may prescribe.
The use of the word "State" as well as the reference to "reasonable terms" under Section
17, Article XII can only pertain to Congress. In other words, the said provision is not self-
executing as to be validly invoked by the President without congressional authorization.
The provision merely declares a state economic policy during times of national emergency.
As such, it cannot be taken to mean as authorizing the President to exercise "takeover"
powers pursuant to a declaration of a state of national emergency. CIAcSa
The President, with all the powers vested in her by Article VII, cannot arrogate unto herself
the power to take over or direct the operation of any privately owned public utility or
business affected with public interest without Congressional authorization. To do so would
constitute an ultra vires act on the part of the Chief Executive, whose powers are limited
to the powers vested in her by Article VII, and cannot extend to Article XII without the
approval of Congress.
Thus, the President's authority to act in times of national emergency is still subject to the
limitations expressly prescribed by Congress. This is a featured component of the doctrine
of separation of powers, specifically, the principle of checks and balances as applicable to
the political branches of government, the executive and the legislature. HTCaAD
With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the
armed forces and the national police "to prevent and suppress acts of terrorism and
lawless violence in the country." There is presently no law enacted by Congress that
defines terrorism, or classifies what acts are punishable as acts of terrorism. The notion
of terrorism, as well as acts constitutive thereof, is at best fraught with ambiguity. It is
therefore subject to different interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of what constitutes
"terrorism" have led the law enforcement officers to necessarily guess at its meaning and
differ as to its application giving rise to unrestrained violations of the fundamental
guarantees of freedom of peaceable assembly and freedom of the press.
In Kolender v. Lawson, 4 the United States Supreme Court nullified a state statute
requiring persons who loitered or wandered on streets to provide "credible and reliable"
identification and to account for their presence when requested to do so by a police officer.
Writing for the majority, Justice Sandra Day O'Connor noted that the most important
aspect of vagueness doctrine was the imposition of guidelines that prohibited arbitrary,
selective enforcement on constitutionally suspect basis by police officers. This rationale
for invocation of that doctrine was of special concern in this case because of the potential
for arbitrary suppression of the fundamental liberties concerning freedom of speech and
expression, as well as restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of national emergency as a
statement of a factual condition pursuant to our ruling in Sanlakas v. Executive Secretary,
5 I wish to emphasize that the same does not grant her any additional powers.
Consequently, while PP 1017 is valid as a declaration of a factual condition, the provisions
which purport to vest in the President additional powers not theretofore vested in her must
be struck down. The provision under GO No. 5 ordering the armed forces to carry out
measures to prevent or suppress "acts of terrorism" must be declared unconstitutional as
well. ScCDET
Finally, it cannot be gainsaid that government action to stifle constitutional liberties
guaranteed under the Bill of Rights cannot be preemptive in meeting any and all perceived
or potential threats to the life of the nation. Such threats must be actual, or at least gravely
imminent, to warrant government to take proper action. To allow government to preempt
the happening of any event would be akin to "putting the cart before the horse," in a
manner of speaking. State action is proper only if there is a clear and present danger of a
substantive evil which the state has a right to prevent. We should bear in mind that in a
democracy, constitutional liberties must always be accorded supreme importance in the
conduct of daily life. At the heart of these liberties lies freedom of speech and thought —
not merely in the propagation of ideas we love, but more importantly, in the advocacy of
ideas we may oftentimes loathe. As succinctly articulated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free speech and assembly. . . .
It is the function of speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one. . . . But even advocacy of violation, however reprehensible
morally, is not a justification for denying free speech where the advocacy falls short of
incitement and there is nothing to indicate that the advocacy would be immediately acted
on. The wide difference between advocacy and incitement, between preparation and
attempt, between assembling and conspiracy, must be borne in mind. In order to support
a finding of clear and present danger it must be shown either that immediate serious
violence was to be expected or was advocated, or that the past conduct furnished reason
to believe that such advocacy was then contemplated. 6
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.
TINGA, J., dissenting:
I regret to say that the majority, by its ruling today, has imprudently placed the Court in
the business of defanging paper tigers. The immodest show of brawn unfortunately comes
at the expense of an exhibition by the Court of a fundamental but sophisticated
understanding of the extent and limits of executive powers and prerogatives, as well as
those assigned to the judicial branch. I agree with the majority on some points, but I
cannot join the majority opinion, as it proceeds to rule on non-justiciable issues based on
fears that have not materialized, departing as they do from the plain language of the
challenged issuances to the extent of second-guessing the Chief Executive. I respectfully
dissent. SEHDIC
The key perspective from which I view these present petitions is my own ponencia in
Sanlakas v. Executive Secretary, 1 which centered on Presidential Proclamation No. 427
(PP 427), declaring a "state of rebellion" in 2003. The Court therein concluded that while
the declaration was constitutional, such declaration should be regarded as both regarded
as "an utter superfluity", which "only gives notice to the nation that such a state exists
and that the armed forces may be called to prevent or suppress it", and "devoid of any
legal significance", and "cannot diminish or violate constitutionally protected rights." I
submit that the same conclusions should be reached as to Proclamation No. 1017 (PP
1017). Following the cardinal precept that the acts of the executive are presumed
constitutional is the equally important doctrine that to warrant unconstitutionality, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and
argumentative implication. 2 Also well-settled as a rule of construction is that where thee
are two possible constructions of law or executive issuance one of which is in harmony
with the Constitution, that construction should be preferred. 3 The concerns raised by the
majority relating to PP 1017 and General Order Nos. 5 can be easily disquieted by applying
this well-settled principle.
I.
PP 1017 Has No Legal Binding
Effect; Creates No Rights and
Obligations; and Cannot Be
Enforced or Invoked in a Court
Of Law
First, the fundamentals. The President is the Chief of State and Foreign Relations, the
chief of the Executive Branch, 4 and the Commander-in-Chief of the Armed Forces. 5 The
Constitution vests on the President the executive power. 6 The President derives these
constitutional mandates from direct election from the people. The President stands as the
most recognizable representative symbol of government and of the Philippine state, to the
extent that foreign leaders who speak with the President do so with the understanding
that they are speaking to the Philippine state. TcCEDS
Yet no matter the powers and prestige of the presidency, there are significant limitations
to the office of the President. The President does not have the power to make or legislate
laws, 7 or disobey those laws passed by Congress. 8 Neither does the President have to
power to create rights and obligations with binding legal effect on the Filipino citizens,
except in the context of entering into contractual or treaty obligations by virtue of his/her
position as the head of State. The Constitution likewise imposes limitations on certain
powers of the President that are normally inherent in the office. For example, even though
the President is the administrative head of the Executive Department and maintains
executive control thereof, 9 the President is precluded from arbitrarily terminating the vast
majority of employees in the civil service whose right to security of tenure is guaranteed
by the Constitution. 10
The President has inherent powers, 11 powers expressly vested by the Constitution, and
powers expressly conferred by statutes. The power of the President to make proclamations,
while confirmed by statutory grant, is nonetheless rooted in an inherent power of the
presidency and not expressly subjected to constitutional limitations. But proclamations,
as they are, are a species of issuances of extremely limited efficacy. As defined in the
Administrative Code, proclamations are merely "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". 12 A proclamation, on its
own, cannot create or suspend any constitutional or statutory rights or obligations. There
would be need of a complementing law or regulation referred to in the proclamation should
such act indeed put into operation any law or regulation by fixing a date or declaring a
status or condition of a public moment or interest related to such law or regulation. And
should the proclamation allow the operationalization of such law or regulation, all
subsequent resultant acts cannot exceed or supersede the law or regulation that was put
into effect.
Under Section 18, Article VII of the Constitution, among the constitutional powers of the
President, as Commander-in-Chief, is to "call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion". 13 The existence of invasion or rebellion could
allow the President to either suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law, but there is a fairly elaborate
constitutional procedure to be observed in such a case, including congressional
affirmation or revocation of such suspension or declaration, as well as the availability of
judicial review. However, the existence of lawless violence, invasion or rebellion does not
ipso facto cause the "calling out" of the armed forces, the suspension of habeas corpus or
the declaration of martial law — it remains within the discretion of the President to engage
in any of these three acts should said conditions arise. aTEHIC
Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such
declaration could ostensibly predicate the suspension of the privilege of the writ of habeas
corpus or the declaration of martial law, but the President did not do so. Instead, PP 427,
and the accompanying General Order No. 4, invoked the "calling out" of the Armed Forces
to prevent lawless violence, invasion and rebellion. Appreciably, a state of lawless violence,
invasion or rebellion could be variable in scope, magnitude and gravity; and Section 18,
Article VII allows for the President to respond with the appropriate measured and
proportional response.
Indeed, the diminution of any constitutional rights through the suspension of the privilege
of the writ or the declaration of martial law is deemed as "strong medicine" to be used
sparingly and only as a last resort, and for as long as only truly necessary. Thus, the mere
invocation of the "calling out" power stands as a balanced means of enabling a heightened
alertness in dealing with the armed threat, but without having to suspend any
constitutional or statutory rights or cause the creation of any new obligations. For the
utilization of the "calling out" power alone cannot vest unto the President any new
constitutional or statutory powers, such as the enactment of new laws. At most, it can
only renew emphasis on the duty of the President to execute already existing laws without
extending a corresponding mandate to proceed extra-constitutionally or extra-legally.
Indeed, the "calling out" power does not authorize the President or the members of the
Armed Forces to break the law.
These were the premises that ultimately informed the Court's decision in Sanlakas, which
affirmed the declaration of a "state of rebellion" as within the "calling out" power of the
President, but which emphasized that for legal intents and purposes, it should be both
regarded as "an utter superfluity", which "only gives notice to the nation that such a state
exists and that the armed forces may be called to prevent or suppress it," and "devoid of
any legal significance," as it could not "cannot diminish or violate constitutionally
protected rights." The same premises apply as to PP 1017. DTCAES
A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in
order.
PP 427 PP 1017
NOW, THEREFORE, I, NOW, THEREFORE, I Gloria
GLORIA MACAPAGAL- Macapagal-Arroyo, President of the
ARROYO, by virtue of the Republic of the Philippines and
powers vested in me by law, Commander-in-Chief of the Armed
hereby confirm the existence of an Forces of the Philippines, by virtue of
actual and on-going rebellion, the powers vested upon me by Section
compelling me to declare a state 18, Article 7 of the Philippine
of rebellion. Constitution which states that: "The
President. . . whenever it becomes
In view of the foregoing, I am necessary, . . . may call out (the)
issuing General Order No. 4 in armed forces to prevent or suppress. . .
accordance with Section 18, rebellion. . .," and in my capacity as
Article VII of the Constitution, their Commander-in-Chief, do hereby
calling out the Armed Forces of command the Armed Forces of the
the Philippines and the Philippine Philippines, to maintain law and order
National Police to immediately throughout the Philippines, prevent or
carry out the necessary actions suppress all forms of lawless violence
and measures to suppress and as well any act of insurrection or
quell the rebellion with due regard rebellion and to enforce obedience to
to constitutional rights. all the laws and to all decrees, orders
and regulations promulgated by me
personally or upon my direction; and
as provided in Section 17, Article 12
of the Constitution do hereby declare a
State of National Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two
distinct phases. The first is the declaration itself of a status or condition, a "state of
rebellion" in PP 437, and a "state of national emergency" under PP 1017. Both "state of
rebellion" and "state of national emergency" are terms within constitutional contemplation.
Under Section 18, Article VII, the existence of a "state of rebellion" is sufficient premise for
either the suspension of the privilege of the writ of habeas corpus or the declaration of
martial law, though in accordance with the strict guidelines under the same provision.
Under Section 17, Article XII, the existence of a state of national emergency is sufficient
ground for the State, during the emergency, under reasonable terms prescribed by it, and
when the public interest so requires, to temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest. Under Section
23(2), Article VI, the existence of a state of national emergency may also allow Congress
to authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national policy.
EDCIcH
Certainly, the declaration could stand as the first step towards constitutional
authorization for the exercise by the President, the Congress or the State of extraordinary
powers and prerogatives. However, the declaration alone cannot put into operation these
extraordinary powers and prerogatives, as the declaration must be followed through with
a separate act providing for the actual utilization of such powers. In the case of the "state
of rebellion," such act involves the suspension of the writ or declaration of martial law. In
the case of the "state of national emergency," such act involves either an order for the
takeover or actual takeover by the State of public utilities or businesses imbued with
public interest or the authorization by Congress for the President to exercise emergency
powers.
In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the
writ or the declaration of martial law. In PP 1017, the declaration of a "state of national
emergency" did not lead to an authorization for the takeover or actual takeover of any
utility or business, or the grant by Congress to the President of emergency powers. Instead,
both declarations led to the invocation of the calling out power of the President under
Section 18, Article VII, which the majority correctly characterizes as involving only
"ordinary police action."
I agree with the ponencia's holding that PP 1017 involves the exercise by the President of
the "calling out" power under Section 18, Article VII. In Integrated Bar v. Zamora, 14 the
Court was beseeched upon to review an order of President Estrada commanding the
deployment of the Marines in patrols around Metro Manila, in view of an increase in crime.
15 The Court, speaking through Justice Santiago Kapunan, affirmed the President's order,
asserting that "it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President's exercise of judgment deserves to be accorded respect
from this Court." 16 Tellingly, the order of deployment by President Estrada was affirmed
by the Court even though we held the view that the power then involved was not the
"calling out" power, but "the power involved may be no more than the maintenance of
peace and order and promotion of the general welfare." 17
It was also maintained in Integrated Bar that while Section 18, Article VII mandated two
conditions — actual rebellion or invasion and the requirement of public safety — before
the suspension of the privilege of the writ of habeas corpus or the declaration of martial
law could be declared, "these conditions are not required in the case of the power to call
out the armed forces. The only criterion is that 'whenever it becomes necessary', the
President may call the armed forces ‘to suppress lawless violence, invasion or rebellion."
18 The Court concluded that the implication was "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."
19
These propositions were affirmed in Sanlakas, wherein the invocation of the calling out
power was expressly made by President Arroyo. The Court noted that for the purpose of
exercising the calling out power, the Constitution did not require the President to make a
declaration of a state of rebellion. 20 At the same time, the Court in Sanlakas
acknowledged that "the President's authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers." 21
For still unclear reasons, the majority attempts to draw a distinction between Sanlakas
and the present petitions by that the statutory authority to declare a "state of rebellion"
emanates from the Administrative Code of 1987, particularly the provision authorizing the
President to make proclamations. As such, the declaration of a "state of rebellion,"
pursuant to statutory authority, "was merely an act declaring a status or condition of
public moment or interest." The majority grossly misreads Sanlakas, which expressly roots
the declaration of a state of rebellion from the wedded powers of the Chief Executive, under
Section 1, Article VII, and as Commander-in-Chief, under Section 18, Article VII. HTDAac
Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the
directive to the Armed Forces of the Philippines to "suppress all forms of lawless violence".
But there are nuances to the calling out power invoked in PP 1017 which the majority
does not discuss. The directive "to suppress all forms of lawless violence" is addressed not
only to the Armed Forces but to the police as well. The "calling out" of the police does not
derive from Section 17, Article VII, or the commander-in-chief clause, our national police
being civilian in character. Instead, the calling out of the police is sourced from the power
of the President as Chief Executive under Section 1, Article VII, and the power of executive
control under Section 18, Article VII. Moreover, while the permissible scope of military
action is limited to acts in furtherance of suppressing lawless violence, rebellion, invasion,
the police can be commanded by the President to execute all laws without distinction in
light of the presidential duty to execute all laws. 22
Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the
discretion of the Chief Executive in the exercise of the "calling out" power due to a
recognition that the said power is of limited import, directed only to the Armed Forces of
the Philippines, and incapable of imposing any binding legal effect on the citizens and
other branches of the Philippines. Indeed, PP 1017 does not purport otherwise. Nothing
in its operative provisions authorize the President, the Armed Forces of the Philippines, or
any officer of the law, to perform any extra-constitutional or extra-legal acts. PP 1017 does
not dictate the suspension of any of the people's guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a state of emergency under PP
1017 nor the invocation of the calling out power therein authorizes warrantless arrests,
searches or seizures; the infringement of the right to free expression, peaceable assembly
and association and other constitutional or statutory rights. Any public officer who
nonetheless engaged or is engaging in such extra-constitutional or extra-legal acts in the
name of PP 1017 may be subjected to the appropriate civil, criminal or administrative
liability.
To prove this point, let us now compare PP 1017 with a different presidential issuance,
one that was intended to diminish constitutional and civil rights of the people. The said
issuance, Presidential Proclamation No. 1081, was issued by President Marcos in 1972 as
the instrument of declaring martial law. The operative provisions read:
PD. 1081 PP 1017
Now, thereof, I, Ferdinand E. Marcos, NOW, THEREFORE, I Gloria
President Of the Philippines, by virtue of Macapagal-Arroyo, President of the
the powers vested upon me by article VII, Republic of the Philippines and
Section 10, Paragraph (2) of the Commander-in-Chief of the Armed
Constitution, do hereby place the entire Forces of the Philippines, by virtue of
Philippines as defined in the article I, the powers vested upon me by Section
Section 1, of the Constitution under 18, Article 7 of the Philippine
martial law, and in my capacity as their Constitution which states that: "The
commander-in-chief, do hereby command President. . . whenever it becomes
the arned forces of the Philippines, to necessary, . . . may call out (the)
maintain law and order throughout the armed forces to prevent or suppress. . .
Philippines, prevent or suppress all forms rebellion. . .," and in my capacity as
of lawless violence as well as any act of their Commander-in-Chief, do hereby
insurrection or rebellion and to enforce command the Armed Forces of the
obedience to all the laws and decrees, Philippines, to maintain law and order
orders and regulations promulgated by me throughout the Philippines, prevent or
personally or upon my direction. suppress all forms of lawless violence
as well any act of insurrection or
In addition, I do hereby order that rebellion and to enforce obedience to
all persons presently detained, as well as all the laws and to all decrees, orders
others who may hereafter be similarly and regulations promulgated by me
detained for the crimes of insurrection personally or upon my direction; and
or rebellion, and all other crimes and as provided in Section 17, Article 12
offenses committed in furtherance or on of the Constitution do hereby declare a
the occasion thereof, or incident thereto, State of National Emergency.
or in connection therewith, for crimes
against national security and the law of
nations, crimes, against the fundamental
laws of the state, crimes against public
order, crimes involving usurpation of
authority, rank, title and improper use
of names, uniforms and insignia, crimes
committed by public officers, and for
such other crimes as will be enumerated
in Orders that I shall subsequently
promulgate, as well as crimes as a
consequence of any violation of any
decree, order or regulation promulgated
by me personally or promulgated upon
my direction shall be kept under
detention until otherwise ordered
released by me or by my duly
designated representative. (emphasis
supplied)
Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017
merely declared the existence of a state of rebellion, an act ultimately observational in
character, PP 1081 "placed the entire Philippines under martial law," an active implement
23 that, by itself, substituted civilian governmental authority with military authority.
Unlike in the 1986 Constitution, which was appropriately crafted with an aversion to the
excesses of Marcosian martial rule, the 1935 Constitution under which PP 1081 was
issued left no intervening safeguards that tempered or limited the declaration of martial
law. Even the contrast in the verbs used, "place" as opposed to "declare," betrays some
significance. To declare may be simply to acknowledge the existence of a particular
condition, while to place ineluctably goes beyond mere acknowledgement, and signifies
the imposition of the actual condition even if it did not exist before. aHCSTD
Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts
of such power are wildly distaff in light of PP 1081's accompanying declaration of martial
law. Since martial law involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is significantly greater than the one
involved in PP 1017, which could only contemplate the enforcement of existing laws in
relation to the suppression of lawless violence, rebellion or invasion and the maintenance
of general peace and order.
Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner
that PP 1017 does not even ponder upon is the subsequent paragraph cited, which
authorizes the detention and continued detention of persons for a plethora of crimes not
only directly related to the rebellion or lawless violence, but of broader range such as those
"against national security," or "public order." The order of detention under PP 1081
arguably includes every crime in the statute book. And most alarmingly, any person
detained by virtue of PP 1081 could remain in perpetual detention unless otherwise
released upon order of President Marcos or his duly authorized representative.
Another worthy point of contrast concerns how the Supreme Court, during the martial law
era, dealt with the challenges raised before it to martial law rule and its effects on civil
liberties. While martial law stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and liberties could have stood
ground against even the most fundamental of human rights abuses ostensibly protected
under the 1935 and 1973 constitutions and under international declarations and
conventions. Yet a perusal of Aquino v. Enrile, 24 the case that decisively affirmed the
validity of martial law rule, shows that most of the Justices then sitting exhibited
diffidence guised though as deference towards the declaration of martial law. Note these
few excerpts from the several opinions submitted in that case which stand as typical for
those times: TSADaI
The present state of martial law in the Philippines is peculiarly Filipino and fits into no
traditional patterns or judicial precedents. . . . In the first place I am convinced (as are the
other Justices), without need of receiving evidence as in an ordinary adversary court
proceeding, that a state of rebellion existed in the country when Proclamation No. 1081
was issued. It was a matter of contemporary history within the cognizance not only of the
courts but of all observant people residing here at that time. . . . The state of rebellion
continues up to the present. The argument that while armed hostilities go on in several
provinces in Mindanao there are none in other regions except in isolated pockets in Luzon,
and that therefore there is no need to maintain martial law all over the country, ignores
the sophisticated nature and ramifications of rebellion in a modern setting. It does not
consist simply of armed clashes between organized and identifiable groups on fields of
their own choosing. It includes subversion of the most subtle kind, necessarily clandestine
and operating precisely where there is no actual fighting. Underground propaganda,
through printed newssheets or rumors disseminated in whispers; recruiting of armed and
ideological adherents, raising of funds, procurement of arms and materiel, fifth-column
activities including sabotage and intelligence — all these are part of the rebellion which
by their nature are usually conducted far from the battle fronts. They cannot be
counteracted effectively unless recognized and dealt with in that context. 25
xxx xxx xxx
[T]he fact that courts are open cannot be accepted as proof that the rebellion and
insurrection, which compellingly called for the declaration of martial law, no longer imperil
the public safety. Nor are the many surface indicia adverted to by the petitioners (the
increase in the number of tourists, the choice of Manila as the site of international
conferences and of an international beauty contest) to be regarded as evidence that the
threat to public safety has abated. There is actual armed combat, attended by the somber
panoply of war, raging in Sulu and Cotabato, not to mention the Bicol region and Cagayan
Valley. I am hard put to say, therefore, that the Government's claim is baseless.
I am not insensitive to the plea made here in the name of individual liberty. But to
paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner Diokno that is in
issue we would probably resolve the doubt in his favor and grant his application. But the
Solicitor General, who must be deemed to represent the President and the Executive
Department in this case, has manifested that in the President's judgment peace and
tranquility cannot be speedily restored in the country unless the petitioners and others
like them meantime remain in military custody. For, indeed, the central matter involved
is not merely the liberty of isolated individuals, but the collective peace, tranquility and
security of the entire nation. 26
xxx xxx xxx
It may be that the existence or non-existence or imminence of a rebellion of the magnitude
that would justify the imposition of martial law is an objective fact capable of judicial
notice, for a rebellion that is not of general knowledge to the public cannot conceivably be
dangerous to public safety. But precisely because it is capable of judicial notice, no inquiry
is needed to determine the propriety of the Executive's action. EcHTCD
Again, while the existence of a rebellion may be widely known, its real extent and the
dangers it may actually pose to the public safety are not always easily perceptible to the
unpracticed eye. In the present day practices of rebellion, its inseparable subversion
aspect has proven to be more effective and important than "the rising (of persons) publicly
and taking arms against the Government" by which the Revised Penal Code characterizes
rebellion as a crime under its sanction. Subversion is such a covert kind of anti-
government activity that it is very difficult even for army intelligence to determine its exact
area of influence and effect, not to mention the details of its forces and resources. By
subversion, the rebels can extend their field of action unnoticed even up to the highest
levels of the government, where no one can always be certain of the political complexion
of the man next to him, and this does not exclude the courts. Arms, ammunition and all
kinds of war equipment travel and are transferred in deep secrecy to strategic locations,
which can be one's neighborhood without him having any idea of what is going on. There
are so many insidious ways in which subversives act, in fact too many to enumerate, but
the point that immediately suggests itself is that they are mostly incapable of being proven
in court, so how are We to make a judicial inquiry about them that can satisfy our judicial
conscience.
The Constitution definitely commits it to the Executive to determine the factual bases and
to forthwith act as promptly as possible to meet the emergencies of rebellion and invasion
which may be crucial to the life of the nation. He must do this with unwavering conviction,
or any hesitancy or indecision on his part will surely detract from the needed precision in
his choice of the means he would employ to repel the aggression. The apprehension that
his decision might be held by the Supreme Court to be a transgression of the fundamental
law he has sworn to 'defend and preserve' would deter him from acting when precisely it
is most urgent and critical that he should act, since the enemy is about to strike the mortal
blow. 27
xxx xxx xxx
To start with, Congress was not unaware of the worsening conditions of peace and order
and of, at least, evident insurgency, what with the numerous easily verifiable reports of
open rebellious activities in different parts of the country and the series of rallies and
demonstrations, often bloody, in Manila itself and other centers of population, including
those that reached not only the portals but even the session hall of the legislature, but the
legislators seemed not to be sufficiently alarmed or they either were indifferent or did not
know what to do under the circumstances. Instead of taking immediate measures to
alleviate the conditions denounced and decried by the rebels and the activists, they
debated and argued long on palliatives without coming out with anything substantial
much less satisfactory in the eyes of those who were seditiously shouting for reforms. In
any event, in the face of the inability of Congress to meet the situation, and prompted by
his appraisal of a critical situation that urgently called for immediate action, the only
alternative open to the President was to resort to the other constitutional source of
extraordinary powers, the Constitution itself. 28
xxx xxx xxx
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering
detention of persons, the Proclamation pointedly limits arrests and detention only to those
"presently detained, as well as others who may hereafter be similarly detained for the
crimes of insurrection or rebellion, and all other crimes and offences committed in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for
crimes against national security and the law of nations, crimes, against the fundamental
laws of the state, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed by public
officers, and for such other crimes as will be enumerated in Orders that I shall
subsequently promulgate, as well as crimes as a consequence of any violation of any
decree, order or regulation promulgated by me personally or promulgated upon my
direction." Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, it is
merely in a state of anaesthesia, to the end that the much needed major surgery to save
the nation's life may be successfully undertaken. 29
xxx xxx xxx
The quoted lines of reasoning can no longer be sustained, on many levels, in these more
enlightened times. For one, as a direct reaction to the philosophy of judicial inhibition so
frequently exhibited during the Marcos dictatorship, our present Constitution has
explicitly mandated judicial review of the acts of government as part of the judicial
function. As if to rebuff Aquino, the 1987 Constitution expressly allows the Supreme Court
to review the sufficiency of the factual basis of the proclamation of martial law and decide
the same within 30 days from the filing of the appropriate case. 30 The Constitution also
emphasizes that a state of martial law did not suspend the operation of the Constitution
or supplant the functioning of the judicial and legislative branches. 31 The expediency of
hiding behind the political question doctrine can no longer be resorted to. HCDAcE
For another, the renewed emphasis within domestic and international society on the rights
of people, as can be seen in worldwide democratic movements beginning with our own in
1986, makes it more difficult for a government established and governed under a
democratic constitution, to engage in official acts that run contrary to the basic tenets of
democracy and civil rights. If a government insists on proceeding otherwise, the courts
will stand in defense of the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of national governmental
instrumentalities, and the principle of republicanism all ensure that the constitutional
government retains significant powers and prerogatives, for it is through such measures
that it can exercise sovereign will in behalf of the people. Concession to those presidential
privileges and prerogatives should be made if due. The abuses of past executive
governments should not detract from these basic governmental powers, even as they may
warrant a greater degree of wariness from those institutions that balance power and the
people themselves. And the rule of law should prevail above all. The damage done by
martial rule was not merely personal but institutional, and the proper rebuke to the
caprices and whims of the iniquitous past is to respect the confines of the restored rule of
law. 32
Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to
matching PP 1081. It is a rank insult to those of us who suffered or stood by those
oppressed under PP 1081 to even suggest that the innocuous PP 1017 is of equivalent
import.
PP 1017 Does Not Purport or
Pretend that the President Has
The Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017 and PP 1081, harped
upon by some of the petitioners and alluded to by the majority. PP 1017 contains a
command to the Armed Forces "to enforce obedience to all the laws and to all decrees,
orders and regulations by [the President]". A similar command was made under PP 1081.
That in itself should not be a cause of surprise, since both PP 1017 and PP 1081 expressly
invoked the "calling out" power, albeit in different contexts.
The majority however considers that since the President does not have the power to issue
decrees, PP 1017 is unconstitutional insofar as it enforces obedience "to all decrees." For
one, it should be made clear that the President currently has no power to issue decrees,
and PP 1017 by no measure seeks to restore such power to the President. Certainly, not
even a single decree was issued by President Arroyo during the several days PP 1017 was
in effect, or during her term thus far for that matter. CETDHA
At the same time, such power did once belong to the President during the Marcos era and
was extensively utilized by President Marcos. It has to be remembered that chafed as we
may have under some of the Marcos decrees, per the 1987 Constitution they still remain
as part of the law of the land unless particularly stricken down or repealed by subsequent
enactments. Indeed, when the President calls upon the Armed Forces to enforce the laws,
those subsisting presidential decrees issued by President Marcos in the exercise of his
legislative powers are included in the equation.
This view is supported by the rules of statutory construction. The particular passage in
PP 1017 reads "to enforce obedience to all the laws and to all decrees, orders and
regulations," with the phrases "all the laws and to all decrees" separated by a comma from
"orders and regulations promulgated by me." Inherently, laws and those decrees issued
by President Marcos in the exercise of his legislative powers, and even those executive
issuances of President Aquino in the exercise of her legislative powers, belong to the same
class, superior in the hierarchy of laws than "orders and regulations." The use of the
conjunction "and" denotes a joinder or union, "relating the one to the other." 33 The use
of "and" establishes an association between laws and decrees distinct from orders and
regulations, thus permitting the application of the doctrine of noscitur a sociis to construe
"decrees" as those decrees which at present have the force of law. The dividing comma
further signifies the segregation of concepts between "laws and decrees" on one hand, and
"orders and regulations" on the other.
Further proof that "laws and decrees" stand as a class distinct from "orders and
regulations" is the qualifying phrase "promulgated by me," which necessarily refers only
to orders and regulations. Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by President Arroyo since she
assumed office in 2001. "Laws and decrees" do not relate only to those promulgated by
President Arroyo, but other laws enacted by past sovereigns, whether they be in the form
of the Marcos presidential decrees, or acts enacted by the American Governor-General
such as the Revised Penal Code. Certainly then, such a qualification sufficiently addresses
the fears of the majority that PP 1017 somehow empowers or recognizes the ability of the
current President to promulgate decrees. Instead, the majority pushes an interpretation
that, if pursued to its logical end, suggests that the President by virtue of PP 1017 is also
arrogating unto herself, the power to promulgate laws, which are in the mold of
enactments from Congress. Again, in this respect, the grouping of "laws" and "decrees"
separately from "orders" and "regulations" signifies that the President has not arrogated
unto herself the power to issue decrees in the mold of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to decrees which the current
President could not very well issue, such intention is of no consequence, since the
proclamation does not intend or pretend to grant the President such power in the first
place. By no measure of contemplation could PP 1017 be interpreted as reinstating to the
President the power to issue decrees. DHIcET
I cannot see how the phrase "enforce obedience to decrees" can be the source of
constitutional mischief, since the implementation of PP 1017 will not vest on the President
the power to issue such decrees. If the Court truly feels the need to clarify this point, it
can do so with the expediency of one sentence or even a footnote. A solemn declaration
that the phrase is unconstitutional would be like killing a flea with dynamite when insect
powder would do.
PP 1017 A Valid Exercise of Prerogatives
Inherent and Traditional in the Office of
The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in
relation to the citizenry, the courts or on Congress. Still, there is another purpose and
dimension behind PP 1017 that fall within the valid prerogatives of the President.
The President, as head of state, is cast in a unique role in our polity matched by no other
individual or institution. Apart from the constitutional powers vested on the President lie
those powers rooted in the symbolic functions of the office. There is the common
expectation that the President should stand as the political, moral and social leader of the
nation, an expectation not referred to in of the oath of office, but expected as a matter of
tradition. In fact, a President may be cast in crisis even if the Chief Executive has broken
no law, and faithfully executed those laws that exist, simply because the President has
failed to win over the hearts and minds of the citizens. As a Princeton academic, Woodrow
Wilson once observed that with the People, the President is everything, and without them
nothing, and the sad decline of his own eventual presidency is no better proof of the
maxim. Such are among the vagaries of the political office, and generally beyond judicial
relief or remedy.
Justice Robert Jackson's astute observation in Youngstown Sheet & Tube Co. v. Sawyer
34 on the unique nature of the presidency, has been widely quoted:
Executive power has the advantage of concentration in a single head in whose choice the
whole Nation has a part, making him the focus of public hopes and expectations. In drama,
magnitude, and finality, his decisions so far overshadow any others that almost alone he
fills the public eye and ear. No other personality in public life can begin to compete with
him in access to the public mind through modern methods of communications. By his
prestige as head of state and his influence upon public opinion he exerts a leverage upon
those who are supposed to check and balance his power which often cancels their
effectiveness. 35
Correspondingly, the unique nature of the office affords the President the opportunity to
profoundly influence the public discourse, not necessarily through the enactment or
enforcement of laws, but specially by the mere expediency of taking a stand on the issues
of the day. Indeed, the President is expected to exercise leadership not merely through the
proposal and enactment of laws, but by making such vital stands. U.S. President Theodore
Roosevelt popularized the notion of the presidency as a "bully pulpit", in line with his belief
that the President was the steward of the people limited only by the specific restrictions
and prohibitions appearing in the Constitution, or impleaded by Congress under its
constitutional powers.
Many times, the President exercises such prerogative as a responsive measure, as after a
mass tragedy or calamity. Indeed, when the President issues a declaration or proclamation
of a state of national mourning after a disaster with massive casualties, while perhaps de
rigeur, is not the formalistic exercise of tradition, but a statement that the President, as
the representative of the Filipino people, grieves over the loss of life and extends
condolences in behalf of the people to the bereaved. This is leadership at its most solemn.
ASIDTa
Yet the President is not precluded, in the exercise of such role, to be merely responsive.
The popular expectation in fact is of a pro-active, dynamic chief executive with an ability
to identify problems or concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of state, very well has the
capacity to use the office to garner support for those great national quests that define a
civilization, as President Kennedy did when by a mere congressional address, he put
America on track to the goal of placing a man on the moon. Those memorable presidential
speeches memorized by schoolchildren may have not, by themselves, made operative any
law, but they served not only merely symbolic functions, but help profoundly influence
towards the right direction, the public opinion in the discourse of the times. Perhaps there
was no more dramatic example of the use of the "bully pulpit" for such noble purposes
than in 1964, when an American President from Texas stood before a Congress populated
by many powerful bigots, and fully committed himself as no other President before to the
cause of civil rights with his intonation of those lines from the civil rights anthem, "we
shall overcome."
From an earlier era in American history, Lincoln's Emancipation Proclamation stands out
as a presidential declaration which clearly staked American polity on the side of the
democratic ideal, even though the proclamation itself was of dubitable legal value. The
proclamation, in short form, "freed the slaves", but was not itself free of legal questions.
For one, the notion that the President could, by himself, alter the civil and legal status of
an entire class of persons was dubious then and now, although President Lincoln did
justify his action as in the exercise of his powers as commander-in-chief during wartime,
"as a fit and necessary war measure for suppressing [the] rebellion." Moreover, it has been
pointed out that the Proclamation only freed those slaves in those states which were then
in rebellion, and it eventually took the enactment of the Thirteenth Amendment of the U.S.
Constitution to legally abolish involuntary servitude. 36 Notwithstanding the legal haze
surrounding it, the Emancipation Proclamation still stands as a defining example not only
of the Lincoln Presidency, but of American democratic principles. It may be remembered
to this day not exactly as an operational means by which slaves were actually freed, but
as a clear rhetorical statement that slavery could no longer thenceforth stand.
The President as Chief Government Spokesperson of the democratic ideals is entrusted
with a heady but comfortable pursuit. But no less vital, if somewhat graver, is the role of
the President as the Chief Defender of the democratic way of life. The "calling out" power
assures the President such capability to a great extent, yet it will not fully suffice as a
defense of democracy. There is a need for the President to rally the people to defend the
Constitution which guarantees the democratic way of life, through means other than
coercive. I assert that the declaration of a state of emergency, on premises of a looming
armed threat which have hardly been disputed, falls within such proper functions of the
President as the defender of the Constitution. It was designed to inform the people of the
existence of such a threat, with the expectation that the citizenry would not aid or abet
those who would overturn through force the democratic government. At the same time,
the Proclamation itself does not violate the Constitution as it does not call for or put into
operation the suspension or withdrawal of any constitutional rights, or even create or
diminish any substantive rights. HcSETI
I submit that it would be proper for the Court to recognize that PP 1017 strikes a
commendable balance between the Constitution, the "calling out" power, and the inherent
function of the Presidency as defender of the democratic constitution. PP 1017 keeps
within the scope and limitations of these three standards. It asserts the primacy of the
democratic order, civilian control over the armed forces, yet respects constitutional and
statutory guarantees of the people.
II.
Section 17, Article XII
of the Constitution
In Relation to PP 1017
My next issue with the majority pertains to the assertion that the President does not have
the power to take over public utilities or businesses impressed with public interest under
Section 17, Article XII of the Constitution without prior congressional authorization. I
agree that the power of the State to take over such utilities and businesses is highly
limited, and should be viewed with suspicion if actually enforced.
Yet qualifications are in order with regard to how Section 17, Article XII actually relates of
PP 1017.
I agree with the majority that a distinction should be asserted as between the power of the
President to declare a state of emergency, and the exercise of emergency powers under
Section 17, Article XII. The President would have the power to declare a state of emergency
even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face and as applied, did not
involve the actual takeover of any public utility or business impressed with public interest.
To some minds, the police action in relation to the Daily Tribune may have flirted with
such power, yet ultimately the newspaper was able to independently publish without
police interference or court injunction. It may be so that since PP 1017 did make express
reference to Section 17, Article XII, but it should be remembered that the constitutional
provision refers to a two-fold power of the State to declare a national emergency and to
take over such utilities and enterprises. The first power under Section 17, Article XII is
not distinct from the power of the President, derived from other constitutional sources, to
declare a state of national emergency. Reference to Section 17, Article XII in relation to the
power to declare a state of national emergency is ultimately superfluous. A different
situation would obtain though if PP 1017 were invoked in the actual takeover of a utility
or business, and in such case, full consideration of the import of Section 17, Article XII
would be warranted. But no such situation obtains in this case, and any discussion
relating to the power of the State to take over a utility or business under Section 17, Article
XII would ultimately be obiter dictum. TaDAHE
I respectfully submit that the Court, in these petitions, need not have engaged this
potentially contentious issue, especially as it extends to whether under constitutional
contemplation, the President may act in behalf of the State in exercising the powers under
Section 17, Article XII. Nonetheless, considering that the majority has chosen to speak out
anyway, I will express agreement that as a general rule, the President may exercise such
powers under Section 17, Article XII only under the grant of congressional approval.
Certainly, the notion that congressional authority is required under Section 17, Article XII
is not evident from the provision. Even Fr. Bernas notes that Section 17 does not require,
as does Article VI, Section 23(2), that the authorization be "by law", thus leaving the
impression that the authorization can come from the President. 37
After the 1989 coup d'etat, President Aquino issued issued Proclamation No. 503 on 6
December 1989, declaring a state of national emergency, and referring therein to Section
17, Article XII by citing the entire provision. The declaration was subsequently reaffirmed
by Congress when two weeks after, it enacted Republic Act No. 6826. Notably, Section 3(3)
of the law authorized the President "to temporarily takeover or direct the operation of any
privately-owned public utility or business affected with public interest that violates the
herein declared national policy". Tellingly, however, such authority was granted by
Congress expressly "pursuant to Article VI, Section 23(2) of the Constitution", and not the
take-over provision in Section 17, Article XII. Evidently, the view that Section 17, Article
XII requires prior congressional authority has some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17 as requiring
congressional authority or approval before the takeover under the provision may be
effected. After all, the taking over of a privately owned public utility or business affected
with public interest would involve an infringement on the right of private enterprise to
profit; or perhaps even expropriation for a limited period. Constitutionally, the taking of
property can only be accomplished with due process of law, 38 and the enactment of
appropriate legislation prescribing the terms and conditions under which the President
may exercise the powers of the State under Section 17 stands as the best assurance that
due process of law would be observed. cITCAa
The fact that Section 17 is purposely ambivalent as to whether the President may exercise
the power therein with or without congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in extreme situations
wherein obtention of congressional authority is impossible or inexpedient considering the
emergency. I thus dissent to any proposition that such requirement is absolute under all
circumstances. I maintain that in such extreme situations, the President may exercise
such authority subject to judicial review.
It should be admitted that some emergencies are graver and more imminent than others.
It is not within the realm of impossibility that by reason of a particularly sudden and grave
emergency, Congress may not be able to convene to grant the necessary congressional
authority to the President. Certainly, if bombs from a foreign invader are falling over
Manila skies, it may be difficult, not to mention unnecessarily onerous, to require
convening Congress before the President may exercise the functions under Section 17,
Article XII. The proposition of the majority may be desirable as the general rule, but the
correct rule that should be adopted by the Court should not be so absolute so as to
preclude the exercise by the President of such power under extreme situations.
In response to this argument, the majority cites portions of Araneta v. Dinglasan, 39 most
pertinent of which reads: "The point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of crisis no matter how serious."
For one, Araneta did not involve a situation wherein the President attempted to exercise
emergency powers without congressional authority; concerning as it did the exercise by
President Quirino of those emergency powers conferred several years earlier by Congress
to President Quezon at the onset of the Pacific phase of World War II. The Court therein
ruled that the emergency that justified then the extraordinary grant of powers had since
expired, and that there no longer existed any authority on the part of the President to
exercise such powers, notwithstanding that the law, Commonwealth Act No. 671, "did not
in term fix the duration of its effectiveness".
Clearly, the context in which the Court made that observation in Araneta is not the same
context within which my own observations oscillate. My own submission is premised on
the extreme situation wherein Congress may be physically unable to convene, an
exceptional circumstance which the hard-line stance of the majority makes no
concessions for. TICDSc
Indeed, even the factual milieu recounted in Araneta conceded that such extreme
circumstance could occur, when it noted President Quezon's claim that he was impelled
to call for a special session of the National Assembly after foreseeing that "it was most
unlikely that the Philippine Legislature would hold its next regular session which was to
open on January 1, 1942." 40 That the National Assembly then was able to convene and
pass Commonwealth Act No. 671 was fortunate, but somewhat a luxury nonetheless.
Indeed, it is not beyond the realm of possibility that the emergency contemplated would
be so grave that a sufficient number of members of Congress would be physically unable
to convene and meet the quorum requirement.
Ultimately though, considering that the authorized or actual takeover under Section 17,
Article XII, is not presented as a properly justiciable issue. Nonetheless, and consistent
with the general tenor, the majority has undertaken to decide this non-justiciable issue,
and to even place their view in the dispositive portion in a bid to enshrine it as doctrine.
In truth, the Court's pronouncement on this point is actually obiter. It is hoped that should
the issue become ripe for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations wherein congressional
approval is impossible or highly impractical to obtain, the powers under Section 17, Article
XII may be authorized by the President.
III.
Overbreadth and "Void for Vagueness"
Doctrines Applicable Not Only To
Free Speech Cases
The majority states that "the overbreadth doctrine is an analytical tool developed for
testing ‘on their faces' statutes in free speech cases"41 , and may thus be entertained "in
cases involving statutes which, by their terms, seek to regulate only 'spoken words', and
not conduct. A similar characterization is made as to the "void for vagueness" doctrine,
which according to the majority, is "subject to the same principles governing overbreadth
doctrine . . . also an analytical tool for testing 'on their faces' statutes in free speech cases."
42
As I noted in my Separate Opinion in Romualdez v. Sandiganbayan, 43 citing Justice
Kapunan, there is a viable distinction between "void for vagueness" and "overbreadth"
which the majority sadly ignores.
A view has been proffered that "vagueness and overbreadth doctrines are not applicable
to penal laws." These two concepts, while related, are distinct from each other. On one
hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom
of speech. On the other hand, the "void-for-vagueness" doctrine applies to criminal laws,
not merely those that regulate speech or other fundamental constitutional right. (not
merely those that regulate speech or other fundamental constitutional rights.) The fact
that a particular criminal statute does not infringe upon free speech does not mean that
a facial challenge to the statute on vagueness grounds cannot succeed. 44
The distinction may prove especially crucial since there has been a long line of cases in
American Supreme Court jurisprudence wherein penal statutes have been invalidated on
the ground that they were "void for vagueness." As I cited in Romualdez v. Sandiganbayan,
45 these cases are Connally v. General Construction Co., 46 Lanzetta v. State of New
Jersey, 47 Bouie v. City of Columbia, 48 Papachristou v. City of Jacksonville, 49 Kolender
v. Lawson, 50 and City of Chicago v. Morales. 51
Granting that perhaps as a general rule, overbreadth may find application only in "free
speech" 52 cases, it is on the other hand very settled doctrine that a penal statute
regulating conduct, not speech, may be invalidated on the ground of "void for vagueness".
In Romualdez, I decried the elevation of the suspect and radical new doctrine that the
"void for vagueness" challenge cannot apply other than in free speech cases. My view on
this point has not changed, and insofar as the ponencia would hold otherwise, I thus
dissent. IaHAcT
Moreover, even though the argument that an overbreadth challenge can be maintained
only in free speech cases has more jurisprudential moorings, the rejection of the challenge
on that basis alone may prove unnecessarily simplistic. I maintain that there is an even
stronger ground on which the overbreadth and "void for vagueness" arguments can be
refuted — that Presidential Proclamation 1017 (PP 1017) neither creates nor diminishes
any rights or obligations whatsoever. In fact, I submit again that this proposition is the
key perspective from which the petitions should be examined.
IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is generally constitutional.
However, they make an unnecessary distinction with regard to "acts of terrorism", pointing
out that Congress has not yet passed a law defining and punishing terrorism or acts of
terrorism.
That may be the case, but does the majority seriously suggest that the President or the
State is powerless to suppress acts of terrorism until the word "terrorism" is defined by
law? Terrorism has a widely accepted meaning that encompasses many acts already
punishable by our general penal laws. There are several United Nations and multilateral
conventions on terrorism 53 , as well as declarations made by the United Nations General
Assembly denouncing and seeking to combat terrorism. 54 There is a general sense in
international law as to what constitutes terrorism, even if no precise definition has been
adopted as binding on all nations. Even without an operative law specifically defining
terrorism, the State already has the power to suppress and punish such acts of terrorism,
insofar as such acts are already punishable, as they almost always are, in our extant
general penal laws. The President, tasked with the execution of all existing laws, already
has a sufficient mandate to order the Armed Forces to combat those acts of terrorism that
are already punishable in our Revised Penal Code, such as rebellion, coup d'etat, murder,
homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts which
under normal contemplation would constitute terrorism are associated anyway with or
subsumed under lawless violence, which is a term found in the Constitution itself. Thus
long ago, the State has already seen it fit to punish such acts. aTcHIC
Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts,
since such power belongs to the legislative alone. Fortunately, General Order No. 5 does
not assume to make such redefinitions. It may have been a different matter had General
Order No. 5 attempted to define "acts of terrorism" in a manner that would include such
acts that are not punished under our statute books, but the order is not comported in
such a way. The proper course of action should be to construe "terrorism" not in any
legally defined sense, but in its general sense. So long as it is understood that "acts of
terrorism" encompasses only those acts which are already punishable under our laws, the
reference is not constitutionally infirm.
The majority cites a theoretical example wherein a group of persons engaged in a drinking
spree may be arrested by the military or police in the belief that they were committing acts
of terrorism pursuant to General Order No. 5. Under the same logical framework that
group of persons engaged in a drinking spree could very well be arrested by the military
or police in the belief that they are committing acts of lawless violence pursuant to General
Order No. 5, instead of acts of terrorism. Obviously such act would be "abuse and
oppression" on the part of the military and the police, whether justified under "lawless
violence" or "acts of terrorism". Yet following the logic of the majority, the directive to
prevent acts of "lawless violence" should be nullified as well.
If the point of the majority is that there are no justiciable standards on what constitutes
acts of terrorism, it should be pointed out that only the following scenarios could ensue.
For one, a person would actually be arrested and charged with "acts of terrorism", and
such arrest or charge would be thrown out of the courts, since our statute books do not
criminalize the specific crime of terrorism. More probably, a person will be arrested and
charged for acts that may under the layperson's contemplation constitutes acts of
terrorism, but would be categorized in the information and charge sheet as actual crimes
under our Revised Penal Code. I simply cannot see how General Order No. 5 could validate
arrests and convictions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of definition and possible broad
context of "acts of terrorism", seems to be positively applying the arguments of
"overbreadth" or "void for vagueness", arguments which they earlier rejected as applicable
only in the context of free expression cases. The inconsistency is breath-taking. While I
disagree with the majority-imposed limitations on the applicability of the "overbreadth" or
"void for vagueness" doctrines, I likewise cannot accede to the application of those
doctrines in the context of General Order No. 5, for the same reason that they should not
apply to PP 1017. Neither General Order No. 5 nor PP 1017 is a penal statute, or have an
operative legal effect of infringing upon liberty, expression or property. As such, neither
General Order No. 5 nor PP 1017 can cause the deprivation of life, liberty or property, thus
divorcing those issuances from the context of the due process clause. The same absence
of any binding legal effect of these two issuances correspondingly disassociates them from
the constitutional infringement of free expression or association. Neither "void for
vagueness" nor "overbreadth" therefore lie. DCHaTc
Another point. The majority concludes from General Order No. 5 that the military or police
is limited in authority to perform those acts that are "necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence," and such
acts committed beyond such authority are considered illegal. I do not dispute such
conclusion, but it must be emphasized that "necessary and appropriate actions and
measures" precisely do not authorize the military or police to commit unlawful and
unconstitutional acts themselves, even if they be geared towards suppressing acts of
terrorism or lawless violence. Indeed, with the emphasis that PP 1017 does not create new
rights or obligations, or diminish existing ones, it necessarily follows that General Order
No. 5, even if premised on a state of emergency, cannot authorize the military or police to
ignore or violate constitutional or statutory rights, or enforce laws completely alien to the
suppression of lawless violence. Again, following the cardinal principle of legal
hermeneutics earlier adverted to, General Order No. 5 should be viewed in harmony with
the Constitution, and only if it the Order irreconcilably deviates from the fundamental law
should it be struck down.
V.
Court Should Refrain Making Any
Further Declaration, For Now,
Relating to the Individual Grievances
Raised by the Petitioners in Relation
To PP 1017
I respectfully disagree with the manner by which the majority would treat the "void as
applied" argument presented by the petitioners. The majority adopts the tack of citing
three particular injuries alleged by the petitioners as inflicted with the implementation of
PP 1017. The majority analyzes the alleged injuries, correlates them to particular
violations of the Bill of Rights, and ultimately concludes that such violations were illegal.
The problem with this approach is that it would forever deem the Court as a trier or
reviewer at first instance over questions involving the validity of warrantless arrests,
searches, seizures and the dispersal of rallies, all of which entail a substantial level of
factual determination. I agree that PP 1017 does not expand the grounds for warrantless
arrests, searches and seizures or dispersal of rallies, and that the proclamation cannot be
invoked before any court to assert the validity of such unauthorized actions. Yet the
problem with directly adjudicating that the injuries inflicted on David, et al., as illegal,
would be that such would have been done with undue haste, through an improper legal
avenue, without the appropriate trial of facts, and without even impleading the particular
officers who effected the arrests/searches/seizures. TIaCHA
I understand that the injurious acts complained of by the petitioners upon the
implementation of PP 1017 are a source of grave concern. Indubitably, any person whose
statutory or constitutional rights were violated in the name of PP 1017 or General Order
No. 5 deserves redress in the appropriate civil or criminal proceeding, and even the
minority wishes to makes this point as emphatically clear, if not moreso, as the majority.
Yet a ruling from this Court, without the proper factual basis or prayer for remuneration
for the injury sustained, would ultimately be merely symbolic. While the Court will not be
harmed by a symbolic reaffirmation of commitment to the principles in the Bill of Rights,
it will be harmed by a ruling that unduly and inappropriately expands the very limited
function of the Court as a trier of facts on first instance.
In my dissent in Teves v. Sandiganbayan, 55 I alluded to the fact that our legal system
may run counter-intuitive in the sense that the seemingly or obviously guilty may still,
after trial, be properly acquitted or exonerated; to the extent that even an accused who
murders another person in front of live television cameras broadcast to millions of sets is
not yet necessarily guilty of the crime of murder or homicide. 56 Hence, the necessity of a
proper trial so as to allow the entire factual milieu to be presented, tested and evaluated
before the court. In my theoretical example, the said accused should nonetheless be
acquitted if the presence of exempting circumstances is established. The same principle
applies in these cases. Certainly, we in the Court can all agree that PP 1017 cannot be
invoked to justify acts by the police or military officers that go beyond the Constitution
and the laws. But the course of prudence dictates that the pronouncement of such a
doctrine, while enforceable in a court of law, should not yet extend itself to specific
examples that have not yet been properly litigated. The function of this Court is to make
legal pronouncements not based on "obvious" facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures were "illegal" would
likewise preclude any meaningful review or reevaluation of pertinent legal doctrines that
otherwise could have been reexamined had these acts been properly challenged in regular
order. For example, the matter of the warrantless arrests in these cases could have most
certainly compelled the Court to again consider the doctrine laid down in Umil v. Ramos
on warrantless arrests and rebellion as a continuing crime, a doctrine that may merit
renewed evaluation. Yet any healthy reexamination of Umil, or other precedents for that
matter, require the presentation and trial of the proper factual predicates, a course which
the majority unfortunately "short-cuts" in this present decision. cda
Of course, despite the grandiloquent pronouncement by the majority that the acts
complained of by the petitioners and implemented pursuant to General Order No. 5 are
illegal, it could nonetheless impose civil, criminal or administrative sanctions on the
individual police officers concerned, as these officers had not been "individually identified
and given their day in court". Of course, the Court would be left with pie on its face if these
persons, once "given their day in court", would be able to indubitably establish that their
acts were actually justified under law. Perhaps worse, the pronouncement of the majority
would have had the effect of prejudging these cases, if ever lodged, even before trial on the
merits.
Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify
violation of statutory or constitutional rights (a declaration which the minority would have
no qualms assenting to) would sufficiently arm those petitioners and other persons whose
rights may have been injured in the implementation of PP 1017, with an impeccable cause
of action which they could pursue against the violators before the appropriate courts. At
the same time, if the officers or officials concerned have basis to contend that no such
rights were violated, for justifications independent of PP 1017 or General Order No. 5,
such claims could receive due consideration before the courts. Such a declaration would
squarely entrench the Court as a defender of the Bill of Rights, foster enforceable means
by which the injured could seek actual redress for the injury sustained, and preserve the
integrity and order of our procedural law.
VI.
Conclusion
The country-wide attention that the instant petitions have drawn should not make the
Court lose focus on its principal mission, which is to settle the law of the case. On the
contrary, the highly political nature of these petitions should serve as forewarning for the
Court to proceed ex abundante cautelam, lest the institution be unduly dragged into the
partisan mud. The credibility of the Court is ensured by making decisions in accordance
with the Constitution without regard to the individual personalities involved; with sights
set on posterity, oblivious of the popular flavor of the day. DScTaC
By deciding non-justiciable issues and prejudging cases and controversies without a
proper trial on the merits, the majority has diminished the potency of this Court's
constitutional power in favor of rhetorical statements that afford no quantifiable relief. It
is for the poet and the politician to pen beautiful paeans to the people's rights and liberties,
it is for the Court to provide for viable legal means to enforce and safeguard these rights
and liberties. When the passions of these times die down, and sober retrospect accedes,
the decision of this Court in these cases will be looked upon as an extended advisory
opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested
and tasked with preserving our civil liberties. They may even stand, in the appropriate
contexts, as viable partisan political issues. But the plain fact remains that, under legal
contemplation, these issuances are valid on their face, and should result in no
constitutional or statutory breaches if applied according to their letter. DHTCaI
I vote to DISMISS all the petitions.
EN BANC
[G.R. No. 178552. October 5, 2010.]
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South
Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY
OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER,
THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE, respondents.
[G.R. No. 178554. October 5, 2010.]
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by
its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and
CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director
Daisy Arago, petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive
Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National
Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO
PUNO, in his capacity as Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL
OSCAR CALDERON, in his capacity as PNP Chief of Staff, respondents.
[G.R. No. 178581. October 5, 2010.]
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN
FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA),
KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS
FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF
FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG
MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT),
MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER
MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO,
COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA,
REY CLARO CASAMBRE, petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity
as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA,
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY
MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU
OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, respondents.
[G.R. No. 178890. October 5, 2010.]
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented
herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by
Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE
AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION
OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY
MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU
OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, respondents.
[G.R. No. 179157. October 5, 2010.]
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M.
Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA
CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and
WIGBERTO E. TAÑADA, petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA
AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), respondents.
[G.R. No. 179461. October 5, 2010.]
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST,
KATIPUNAN NG MGA SAMAHANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES
MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST),
PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS
(LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG
AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN
(BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG
KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION
FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR.,
DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, petitioners, vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO
ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI),
THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE
SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME,
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, respondents.
DECISION
CARPIO MORALES, J p:
Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism,"
otherwise known as the Human Security Act of 2007, 1 signed into law on March 6, 2007.
EHITaS
Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr.,
a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on
July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno
(KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and
Center for Trade Union and Human Rights (CTUHR), represented by their respective
officers 3 who are also bringing the action in their capacity as citizens, filed a petition for
certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens
for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan,
Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers, 4 and joined by concerned citizens and taxpayers Teofisto
Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John
Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry
Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo
Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for
certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya
(SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church
People's Response (PCPR), which were represented by their respective officers 5 who are
also bringing action on their own behalf, filed a petition for certiorari and prohibition
docketed as G.R. No. 178890. cCEAHT
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense
of Liberty (CODAL), 6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and
Wigberto E. Tañada filed a petition for certiorari and prohibition docketed as G.R. No.
179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and
organizations mostly based in the Southern Tagalog Region, 7 and individuals 8 followed
suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as
G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No.
178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council 9
composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita
as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs
Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance
Secretary Margarito Teves as members. All the petitions, except that of the IBP, also
impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon
and Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of
Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence
and investigative elements. STDEcA
The petitions fail.
Petitioners' resort to
certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave
abuse of discretion amounting to lack or excess of jurisdiction. 2005cdasia
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting
requisites, viz.: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case. 10
In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Petitioners lack locus
standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.
11
Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule on
locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in
a case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question on 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.
[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some direct injury as a result of
its enforcement, and not merely that it suffers thereby in some indefinite way. It must
show that it has been or is about to be denied some right or privilege to which it is lawfully
entitled or that it is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that
(1) it has personally suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government, (2) the injury is fairly traceable to the challenged action,
and (3) the injury is likely to be redressed by a favorable action. (emphasis and
underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist
fronts" by the government, especially the military; whereas individual petitioners
invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers.
While Chavez v. PCGG 13 holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and
personal injury, cases involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate a
closer judicial scrutiny of locus standi. HcTEaA
Petitioners have not presented any personal stake in the outcome of the controversy. None
of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No.
178890, allege that they have been subjected to "close security surveillance by state
security forces," their members followed by "suspicious persons" and "vehicles with dark
windshields," and their offices monitored by "men with military build." They likewise claim
that they have been branded as "enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,
PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No.
178581, would like the Court to take judicial notice of respondents' alleged action of
tagging them as militant organizations fronting for the Communist Party of the Philippines
(CPP) and its armed wing, the National People's Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of proscription without following the procedure
under the law. 15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter
must be one of common and general knowledge; (2) it must be well and authoritatively
settled and not doubtful or uncertain; and (3) it must be known to be within the limits of
the jurisdiction of the court. The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. Hence, it can be said that judicial
notice is limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that
it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may
be matters which are generally accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are judicially noticed,
provided, they are of such universal notoriety and so generally understood that they may
be regarded as forming part of the common knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or non-existence of a fact
of which the court has no constructive knowledge. 16 (emphasis and underscoring
supplied.)
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners' apprehension is insufficient to substantiate their plea. That no specific charge
or proscription under RA 9372 has been filed against them, three years after its effectivity,
belies any claim of imminence of their perceived threat emanating from the so-called
tagging. cHCIEA
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize
how the implementation of specific provisions of RA 9372 would result in direct injury to
their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America 17 (US) and the European Union 18 (EU) have both classified
the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes
note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and EU classification
of the CPP and NPA as terrorist organizations. 19 Such statement notwithstanding, there
is yet to be filed before the courts an application to declare the CPP and NPA organizations
as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been
in effect for three years now. From July 2007 up to the present, petitioner-organizations
have conducted their activities fully and freely without any threat of, much less an actual,
prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda
Ilagan, 20 urged the government to resume peace negotiations with the NDF by removing
the impediments thereto, one of which is the adoption of designation of the CPP and NPA
by the US and EU as foreign terrorist organizations. Considering the policy statement of
the Aquino Administration 21 of resuming peace talks with the NDF, the government is
not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium
and its allied organizations.
More important, there are other parties not before the Court with direct and specific
interests in the questions being raised. 22 Of recent development is the filing of the first
case for proscription under Section 17 23 of RA 9372 by the Department of Justice before
the Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under
RA 9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco, 25 the Court ordered the dismissal of rebellion charges filed in 2006
against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis,
Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of
Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro
Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement
were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY,
LFS and COURAGE. 26
The dismissed rebellion charges, however, do not save the day for petitioners. For one,
those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by
this Court. For another, rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor
does the enactment thereof make it easier to charge a person with rebellion, its elements
not having been altered. TIADCc
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment
of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing. 27 The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single
arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of "political surveillance," the Court finds that she has not shown
even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi
are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being
respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside
these gratuitous statements, no concrete injury to them has been pinpointed. DSHTaC
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in
G.R. No. 178552 also conveniently state that the issues they raise are of transcendental
importance, "which must be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have been charged, or may
be charged. Mere invocation of human rights advocacy has nowhere been held sufficient
to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger
of sustaining, direct injury as a result of the law's enforcement. To rule otherwise would
be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest
shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing
power of Congress, 28 whereas citizen standing must rest on direct and personal interest
in the proceeding. 29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress
for its implementation, while none of the individual petitioner-citizens has alleged any
direct and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public
right, do not establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to
present an actual case or
controversy
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.
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 a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. 30 (emphasis
and underscoring supplied.)
As early as Angara v. Electoral Commission, 31 the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate
or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. 32
Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more
emphatic: ACETID
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable — definite and
concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the
one hand, and a denial thereof on the other hand; that is, it must concern a real and not
merely a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state
of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati
into a Highly Urbanized City was held to be premature as it was tacked on uncertain,
contingent events. 34 Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely wheedles the Court to
rule on a hypothetical problem. 35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections
36 for failure to cite any specific affirmative action of the Commission on Elections to
implement the assailed resolution. It refused, in Abbas v. Commission on Elections, 37 to
rule on the religious freedom claim of the therein petitioners based merely on a perceived
potential conflict between the provisions of the Muslim Code and those of the national law,
there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest suffices to provide a basis for mounting a
constitutional challenge. This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the issues. 38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
plaintiffs faced a "credible threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief." 40 The plaintiffs
therein filed an action before a federal court to assail the constitutionality of the material
support statute, 18 U.S.C. §2339B (a) (1), 41 proscribing the provision of material support
to organizations declared by the Secretary of State as foreign terrorist organizations. They
claimed that they intended to provide support for the humanitarian and political activities
of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an
anticipatory petition clearly shows that the challenged prohibition forbids the conduct or
activity that a petitioner seeks to do, as there would then be a justiciable controversy. 42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that
they seek to do. No demonstrable threat has been established, much less a real and
existing one.
Petitioners' obscure allegations of sporadic "surveillance" and supposedly being tagged as
"communist fronts" in no way approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion, which is not its
function. 43 aCcSDT
Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness. 44
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law may be abused.
45 Allegations of abuse must be anchored on real events before courts may step in to settle
actual controversies involving rights which are legally demandable and enforceable.
A facial invalidation of a
statute is allowed only in free
speech cases, wherein certain
rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism 46 under RA 9372 in that terms like "widespread and extraordinary
fear and panic among the populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no standard to measure
the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to free
speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline
the schools of thought on whether the void-for-vagueness and overbreadth doctrines are
equally applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez v.
Hon. Sandiganbayan 47 and Estrada v. Sandiganbayan. 48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5
49 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly
broad. The Court stated that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases," and are "not appropriate for testing the validity of
penal statutes." 50 It added that, at any rate, the challenged provision, under which the
therein petitioner was charged, is not vague. 51
While in the subsequent case of Romualdez v. Commission on Elections, 52 the Court
stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense 53 under the Voter's Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language. 54 AEIcSa
The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V.
Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act
No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify a
facial review of its validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself
as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem
effect resulting from their very existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court
put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma,
the Court ruled that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason,
it has been held that "a facial challenge to a legislative act is the most difficult challenge
to mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible applications.
"A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others." AHDacC
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons
or other situations in which its application might be unconstitutional." As has been
pointed out, "vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in
Younger v. Harris:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," and is generally
disfavored. In determining the constitutionality of a statute, therefore, its provisions which
are alleged to have been violated in a case must be examined in the light of the conduct
with which the defendant is charged. 56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute
(under a claim of violation of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on
the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates
due process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle. 57 The
overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms. 58 DCcIaE
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected. 59
A “facial” challenge is likewise different from an “as-applied” challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting
real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws
and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities. 60
Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable
to penal laws. A litigant cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the
"chilling effect" on protected speech, the exercise of which should not at all times be
abridged. 62 As reflected earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of constitutionally protected
rights. 63
The Court reiterated that there are "critical limitations by which a criminal statute may be
challenged" and "underscored that an 'on-its-face' invalidation of penal statutes . . . may
not be allowed." 64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom,
and other fundamental rights may be facially challenged. Under no case may ordinary
penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a facial challenge in
the case of penal statutes, if the same is allowed, would effectively go against the grain of
the doctrinal requirement of an existing and concrete controversy before judicial power
may be appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third parties
who are not before it. As I have said in my opposition to the allowance of a facial challenge
to attack penal statutes, such a test will impair the State's ability to deal with crime. If
warranted, there would be nothing that can hinder an accused from defeating the State's
power to prosecute on a mere showing that, as applied to third parties, the penal statute
is vague or overbroad, notwithstanding that the law is clear as applied to him. 65
(Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited
to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation
in order to plot areas of protected speech, inevitably almost always under situations not
before the court, that are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad
if the court confines itself only to facts as applied to the litigants. HEScID
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so that
the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties. 66 (Emphasis in the original omitted;
underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, 67 observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment, 68 and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek
to regulate only spoken words. 69 In Virginia v. Hicks, 70 it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are
justified by the "transcendent value to all society of constitutionally protected expression."
71
Since a penal statute may only be
assailed for being vague as applied
to petitioners, a limited vagueness
analysis of the definition of
"terrorism" in RA 9372 is legally
impermissible absent an actual or
imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of
the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding,
however, that there was no basis to review the law "on its face and in its entirety." 72 It
stressed that "statutes found vague as a matter of due process typically are invalidated
only 'as applied' to a particular defendant." 73
American jurisprudence 74 instructs that "vagueness challenges that do not involve the
First Amendment must be examined in light of the specific facts of the case at hand and
not with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants' claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the
most important guarantees of liberty under law." 75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause
has been utilized in examining the constitutionality of criminal statutes. In at least three
cases, 76 the Court brought the doctrine into play in analyzing an ordinance penalizing
the non-payment of municipal tax on fishponds, the crime of illegal recruitment
punishable under Article 132 (b) of the Labor Code, and the vagrancy provision under
Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases,
similar to those in the two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case. cEaACD
There is no merit in the
claim that RA 9372
regulates speech so as to
permit a facial analysis of
its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any
of the cited provisions of the Revised Penal Code, or under any of the enumerated special
penal laws; (2) the commission of the predicate crime sows and creates a condition of
widespread and extraordinary fear and panic among the populace; and (3) the offender is
actuated by the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of terrorism
77 must necessarily be transmitted through some form of expression protected by the free
speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate
crime actually committed to trigger the operation of the key qualifying phrases in the other
elements of the crime, including the coercion of the government to accede to an "unlawful
demand." Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot recategorize the
unprotected conduct into a protected speech.
Petitioners' notion on the transmission of message is entirely inaccurate, as it unduly
focuses on just one particle of an element of the crime. Almost every commission of a crime
entails some mincing of words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom or conditions, or in
negotiating a deceitful transaction. An analogy in one U.S. case 78 illustrated that the fact
that the prohibition on discrimination in hiring on the basis of race will require an
employer to take down a sign reading "White Applicants Only" hardly means that the law
should be analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct
alter neither the intent of the law to punish socially harmful conduct nor the essence of
the whole act as conduct and not speech. This holds true a fortiori in the present case
where the expression figures only as an inevitable incident of making the element of
coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an abridgement
of freedom of speech or press to make a course of conduct illegal merely because the
conduct was, in part, initiated, evidenced, or carried out by means of language, either
spoken, written, or printed. Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as many other agreements and
conspiracies deemed injurious to society. 79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct. 80 Since speech is not involved here, the Court cannot
heed the call for a facial analysis. IaEACT
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court
in said cases, however, found no basis to review the assailed penal statute on its face and
in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review
of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced
a "credible threat of prosecution" and "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of "terrorism" is thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on a statute's future effect on
hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.
Carpio, J., is on official leave.
Abad, J., I certify that J. Abad who is on official business submitted a concurring opinion
— by: C.J. Corona.
Separate Opinions
ABAD, J., concurring:
I concur with the majority opinion in dismissing the various petitions filed before this
Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize,
however, that as the grounds for dismissal are more procedural than substantive, our
decision in these consolidated cases does not definitively uphold the validity of the
questioned law. The specific questions raised by the petitioners against R.A. 9372 may be
raised in the proper forum if and when an actual controversy arises and becomes ripe for
adjudication. cCSTHA