210.

Kilusang Bayan v Dominguez

211. Angangco v Castillo
212. Namarco V arca
213.Drilon v Lim
214. Carpio v Executive Secretary
215. SANLAKAS v Executive Secretary
216. Ex Parte Milligan US case
217. David v Arroyo
218. Aquino Jr. v Military Commission
219. Olaguer v Military Commission
220. Guazon v De Villa
221. IBP v Zamora
222. Kulayan v Tan

210. Kilusang Bayan v Dominguez

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 85439 January 13, 1992

KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG
PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM), TERESITA A. FAJARDO,
NADYESDA B. PONSONES, MA. FE V. BOMBASE, LOIDA D. LUCES, MARIO S.
FRANCISCO, AMADO V. MANUEL and ROLANDO G. GARCIA, incumbent members
of the Board, AMADO G. PEREZ and MA. FE V. BOMBASE, incumbent General
Manager and Secretary-Treasurer, respectively, petitioners,
vs.
HON. CARLOS G. DOMINGUEZ, Secretary of Agriculture, Regional Director of
Region IV of the Department of Agriculture ROGELIO P. MADRIAGA, RECTO
CORONADO and Municipal Mayor IGNACIO R. BUNYE, both in his capacity as
Municipal Mayor of Muntinlupa, Metro Manila and as Presiding Officer of
Sangguniang Bayan ng Muntinglupa, and JOHN DOES, respondents.
G.R. No. 91927 January 13, 1992
IGNACIO R. BUNYE, JAIME R. FRESNEDI, CARLOS G. TENSUAN, VICTOR E.
AGUINALDO, ALEJANDRO I. MARTINEZ, EPIFANIO A. ESPELETA, REY E. BULAY,
LUCIO B. CONSTANTINO, ROMAN E. NIEFES, NEMESIO O. MOZO, ROGER SMITH,
RUFINO B. JOAQUIN, NOLASCO I. DIAZ, RUFINO IBE and NESTOR
SANTOS, petitioners,
vs.
THE SANDIGANBAYAN, THE OMBUDSMAN and ROGER C. BERBANO, Special
Prosecutor III, respondents.
Jose O. Villanueva and Roberto B. Romanillos for petitioners in G.R. No. 85439.
Alampay & Manhit Law Offices for petitioners in G.R. No. 91927.

DAVIDE, JR., J.:

These cases have been consolidated because they are closely linked with each other as
to factual antecedents and issues.

The first case, G.R. No. 85439 (hereinafter referred to as the Kilusang Bayan case),
questions the validity of the order of 28 October 1988 of then Secretary of Agriculture
Hon. Carlos G. Dominguez which ordered: (1) the take-over by the Department of
Agriculture of the management of the petitioner Kilusang Bayan sa Paglilingkod Ng Mga
Magtitinda ng Bagong Pamilihang Bayan ng Muntilupa, Inc. (KBMBPM) pursuant to the
Department's regulatory and supervisory powers under Section 8 of P.D. No. 175, as
amended, and Section 4 of Executive Order No. 13, (2) the creation of a Management
Committee which shall assume the management of KBMBPM upon receipt of the order,
(3) the disbandment of the Board of Directors, and (4) the turn over of all assets,
properties and records of the KBMBPM the Management Committee.
The second case. G.R. No. 91927 (hereinafter referred to as the Bunye case), seeks the
nullification of the Resolution of 4 January 1990 of the Sandiganbayan admitting the
Amended Information against petitioners in Criminal Case No. 13966 and denying their
motion to order or direct preliminary investigation, and its Resolution of 1 February 1990
denying the motion to reconsider the former.
The procedural and factual antecedents are not disputed.
On 2 September 1985, the Municipal Government of Muntinlupa (hereinafter,
Municipality), Metro Manila, thru its then Mayor Santiago Carlos, Jr., entered into a
contract with the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA SA BAGONG
PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM) represented by its General
Manager, Amado Perez, for the latter's management and operation of the new
Muntinlupa public market. The contract provides for a twenty-five (25) year term
commencing on 2 September 1985, renewable for a like period, unless sooner
terminated and/or rescinded by mutual agreement of the parties, at a monthly
consideration of Thirty-Five Thousand Pesos (P35,000) to be paid by the KBMBPM within
the first five (5) days of each month which shall, however, be increased by ten percent
(10%) each year during the first five (5) years only. 1
The KBMBPM is a service cooperative organized by and composed of vendors occupying
the New Muntinlupa Public Market in Alabang, Muntinlupa, Metro Manila pursuant to
Presidential Decree No. 175 and Letter of Implementation No. 23; its articles of
incorporation and by-laws were registered with the then Office of the Bureau of
Cooperatives Development (thereafter the Bureau of Agricultural Cooperatives
Development or BACOD and now the Cooperative Development Authority). 2
Following his assumption into office as the new mayor succeeding Santiago Carlos, Jr.,
petitioner Ignacio Bunye, claiming to be particularly scandalized by the "virtual 50-year
term of the agreement, contrary to the provision of Section 143, paragraph 3 of Batas
Pambansa Blg. 337," and the "patently inequitable rental," directed a review of the
aforesaid contract. 3 He sought opinions from both the Commission on Audit and the
Metro Manila Commission (MMC) on the validity of the instrument. In separate letters,
these agencies urged that appropriate legal steps be taken towards its rescission. The

letter of Hon. Elfren Cruz of the MMC even granted the Municipality authority "to take the
necessary legal steps for the cancellation/recission of the above cited contract and make
representations with KBMBPM for the immediate transfer/takeover of the possession,
management and operation of the New Muntinlupa Market to the Municipal Government
of Muntinlupa." 4
Consequently, upon representations made by Bunye with the Municipal Council, the
latter approved on 1 August 1988 Resolution No. 45 abrogating the contract. To
implement this resolution, Bunye, together with his co-petitioners and elements of the
Capital Command of the Philippine Constabulary, proceeded, on 19 August 1986, to the
public market and announced to the general public and the stallholders thereat that the
Municipality was taking over the management and operation of the facility, and that the
stallholders should henceforth pay their market fees to the Municipality, thru the Market
Commission, and no longer to the KBMBPM. 5
On 22 August 1988, the KBMBPM filed with Branch 13 of the Regional Trial Court of
Makati a complaint for breach of contract, specific performance and damages with
prayer for a writ of preliminary injunction against the Municipality and its officers, which
was docketed as Civil Case No. 88-1702. 6 The complaint was premised on the alleged
illegal take-over of the public market effected "in excess of his (Bunye's) alleged
authority" and thus "constitutes breach of contract and duty as a public official."
The writ applied for having been denied, 7 the KBMBPM officers resisted the attempts of
Bunye and company to complete the take-over; they continued holding office in the KBS
building, under their respective official capacities. The matter having been elevated to
this Court by way of certiorari, 8 We remanded the same to the Court of Appeals which
docketed it as C.A.-G.R. No. L-16930. 9
On 26 August 1988, Amado Perez filed with the Office of the Ombudsman a lettercomplaint charging Bunye and his co-petitioners with oppression, harassment, abuse of
authority and violation of the Anti-Graft and Corrupt Practices Act 10 for taking over the
management and operation of the public market from KBMBPM. 11
In a subpoena dated 7 October 1988, prosecutor Mothalib C. Onos of the Office of the
Special Prosecutor directed Bunye and his co-petitioners to submit within ten (10) days
from receipt thereof counter-affidavits, affidavits of their witnesses and other supporting
documents. 12 The subpoena and letter-complaint were received on 12 October 1988.
On 20 October 1988, two (2) days before the expiration of the period granted to file said
documents, Bunye, et al. filed by mail an urgent motion for extension of "at least fifteen
(15) days from October 22, 1988" within which to comply 13 with the subpoena.
Thereafter, the following transpired which subsequently gave rise to these petitions:
G.R. No. 85439

In the early morning of 29 October 1988, a Saturday, respondent Madriaga and

Coronado, allegedly accompanied by Mayor Bunye and the latters' heavily armed men,
both in uniform and in civilian clothes, together with other civilians, namely: Romulo
Bunye II, Alfredo Bunye, Tomas Osias, Reynaldo Camilon, Benjamin Taguibao, Benjamin
Bulos and other unidentified persons, allegedly through force, violence and intimidation,
forcibly broke open the doors of the offices of petitioners located at the second floor of
the KBS Building, new Muntinlupa Public Market, purportedly to serve upon petitioners
the Order of respondent Secretary of Agriculture dated 28 October 1988, and to
implement the same, by taking over and assuming the management of KBMBPM,
disbanding the then incumbent Board of Directors for that purpose and excluding and
prohibiting the General Manager and the other officers from exercising their lawful
functions as such. 14 The Order of the Secretary reads as follows: 15
ORDER
WHEREAS, the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG
BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC., (KBMBPM), Alabang,
Muntinlupa, Metro Manila is a Cooperative registered under the provisions of
Presidential Decree No. 175, as amended;
WHEREAS, the Department of Agriculture is empowered to regulate and
supervise cooperatives registered under the provisions of Presidential Decree
No. 175, as amended;
WHEREAS, the general membership of the KBMBPM has petitioned the
Department of Agriculture for assistance in the removal of the members of
the Board of Directors who were not elected by the general membership of
said cooperative;
WHEREAS, the on-going financial and management audit of the Department
of Agriculture auditors show (sic) that the management of the KBMBPM is not
operating that cooperative in accordance with PD. 175, LOI No. 23, the
Circulars issued by DA/BACOD and the provisions of the by-laws of KBMBPM;
WHEREAS, the interest of the public so demanding it is evident and urgently
necessary that the KBMBPM MUST BE PLACED UNDER MANAGEMENT TAKEOVER of the Department of Agriculture in order to preserve the financial
interest of the members of the cooperative and to enhance the cooperative
development program of the government;
WHEREAS, it is ordered that the Department of Agriculture in the exercise of
its regulatory and supervisory powers under Section 8 of PD 175, as
amended, and Section 4 of Executive Order No. 113, take over the
management of KBMBPM under the following directives:

1. THAT a Management Committee is hereby created composed

of the following:
a) Reg. Dir. or OIC RD DA Region IV
b) Atty. Rogelio P. Madriaga BACOD
c) Mr. Recto Coronado KBMBPM
d) Mrs. Nadjasda Ponsones KBMBPM
e) One (1) from the Municipal Government of Muntinlupa to be
designated by the Sangguniang Pambayan ng Muntinlupa;
2. THAT the Management Committee shall, upon receipt of this
Order, assume the management of KBMBPM;
3. THAT the present Board of Directors is hereby disbanded and
the officers and Manager of the KBMBPM are hereby directed to
turnover all assets, properties and records of the KBMBPM to the
Management Committee herein created;
4. THAT the Management Committee is hereby empowered to
promulgate rules of procedure to govern its workings as a body;
5. THAT the Management Committee shall submit to the
undersigned thru the Director of BACOD monthly reports on the
operations of KBMBPM;
6. THAT the Management Committee shall call a General
Assembly of all registered members of the KBMBPM within Ninety
(90) days from date of this Order to decide such matters
affecting the KBMBPM, including the election of a new set of
Board of Director (sic).
This Order takes effect immediately and shall continue to be in force until the
members of the Board of Directors shall have been duly elected and
qualified.
Done this 28th day of October, 1988 at Quezon City.
As claimed by petitioners, the Order served on them was not written on the stationary of
the Department, does not bear its seal and is a mere xerox copy.

The so-called petition upon which the Order is based appears to be an unverified petition
dated 10 October 1988 signed, according to Mayor Bunye, 16 by 371 members of the
KBMBPM.
On 2 November 1988, petitioners filed the petition in this case alleging, inter alia, that:
(a) Respondent Secretary acted without or in excess of jurisdiction in issuing
the Order for he arrogated unto himself a judicial function by determining the
alleged guilt of petitioners on the strength of a mere unverified petition; the
disbandment of the Board of Directors was done without authority of law
since under Letter of Implementation No. 23, removal of officers, directors or
committee members could be done only by the majority of the members
entitled to vote at an annual or special general assembly and only after an
opportunity to be heard at said assembly.
(b) Respondent Secretary acted in a capricious, whimsical, arbitrary and
despotic manner, so patent and gross that it amounted to a grave abuse of
discretion.
(c) The Order is a clear violation of the By-Laws of KBMBPM and is likewise
illegal and unlawful for it allows or tolerates the violation of the penal
provisions under paragraph (c), Section 9 of P.D. No. 175.
(d) The Order is a clear violation of the constitutional right of the individual
petitioners to be heard. 17
They pray that upon the filing of the petition, respondents, their agents, representatives
or persons acting on their behalf be ordered to refrain, cease and desist from enforcing
and implementing the questioned Order or from excluding the individual petitioners from
the exercise of their rights as such officers and, in the event that said acts sought to be
restrained were already partially or wholly done, to immediately restore the
management and operation of the public market to petitioners, order respondents to
vacate the premises and, thereafter, preserve the status quo; and that, finally, the
challenged Order be declared null and void.
In the Resolution of 9 October 1988, 18 We required the respondents to Comment on the
petition. Before any Comment could be filed, petitioners filed on 2 January 1989 an
Urgent Ex-Parte Motion praying that respondent Atty. Rogelio Madriaga, who had
assumed the position of Chairman of the Management Committee, be ordered to stop
and/or cancel the scheduled elections of the officers of the KBMBPM on 6 January 1989
and, henceforth, desist from scheduling any election of officers or Members of the Board
of Directors thereof until further orders on the Court. 19 The elections were, nevertheless,
held and a new board of directors was elected. So, on 19 January 1989, petitioners filed a
supplemental motion 20 praying that respondent Madriaga and the "newly elected Board
of Directors be ordered to cease and desist from assuming, performing or exercising

powers as such, and/or from removing or replacing the counsels of petitioners as

counsels for KBMBPM and for Atty. Fernando Aquino, Jr., to cease and desist from unduly
interfering with the affairs and business of the cooperative."
Respondent Bunye, by himself, filed his Comment on 23 January 1989. 21 He denies the
factual allegations in the petition and claims that petitioners failed to exhaust
administrative remedies. A reply thereto was filed by petitioners on 7 February 1989. 22
Respondent Recto Coronado filed two (2) Comments. The first was filed on 6 February
1989 23 by his counsel, Atty. Fernando Aquino, Jr., and the second, which is for both him
and Atty. Madriaga, was filed by the latter on 10 February 1989. 24
On 20 February 1989, petitioners filed a Reply to the first Comment of Coronado 25 and
an Ex-Parte Motion for the immediate issuance of a cease and desist order 26 praying
that the so-called new directors and officers of KBMBPM, namely: Tomas M. Osias,
Ildefonso B. Reyes, Paulino Moldez, Fortunato M. Medina, Aurora P. del Rosario, Moises
Abrenica, and Lamberto Casalla, be ordered to immediately cease and desist from filing
notices of withdrawals or motions to dismiss cases filed by the Cooperative now pending
before the courts, administrative offices and the Ombudsman and Tanodbayan, and that
if such motions or notices were already filed, to immediately withdraw and desist from
further pursuing the same until further orders of this Court. The latter was precipitated
by the Resolution No. 19 of the "new" board of directors withdrawing all cases filed by its
predecessors against Bunye, et al., and more particularly the following cases: (a) G.R.
No. 85439 (the instant petition), (b) Civil Case No. 88-1702, (c) OSP Case No. 88-2110
before the Ombudsman, (d) IBP Case No. 88-0119 before the Tanodbayan, and Civil Case
No. 88-118 for Mandamus. 27
On 1 March 1989, We required the Solicitor General to file his Comment to the petition
and the urgent motion for the immediate issuance of a cease and desist order. 28
A motion to dismiss the instant petition was filed on 30 March 1989. 29 On 19 April 1989,
We resolved to dismiss the case and consider it closed and terminated. 30 Thereupon,
after some petitioners filed a motion for clarification and reconsideration, We set aside
the dismissal order and required the new directors to comment on the Opposition to
Motion to Dismiss filed by the former. 31
The new board, on 14 June 1989, prayed that its Manifestation of 6 June 1989 and
Opposition dated 9 June 1989, earlier submitted it response to petitioners' motion for
reconsideration of the order dismissing the instant petition, be treated as its
Comment. 32 Both parties then continued their legal fencing, serving several pleadings
on each other.
In Our Resolution of 9 August 1989, 33 We gave the petition due course and required the
parties to submit their respective Memoranda.

On 14 August 1989, petitioners filed an urgent ex-parte motion for the immediate
issuance of a cease and desist order 34 in view of the new board's plan to enter into a
new management contract; the motion was noted by this Court on 23 August 1989. A
second ex-parte motion, noted on 18 October 1989, was filed on 19 September 1989
asking this court to consider the "Invitation to pre-qualify and bid" for a new contract
published by respondent Bunye. 35
In a belated Comment 36 for the respondent Secretary of Agriculture filed on 22
September 1989, the Office of the Solicitor General asserts that individual petitioners,
who were not allegedly elected by the members or duly designated by the BACOD
Director, have no right or authority to file this case; the assailed Order of the Secretary
was issued pursuant to P.D. No. 175, more particularly Section 8 thereof which authorizes
him "(d) to suspend the operation or cancel the registration of any cooperative after
hearing and when in its judgment and based on findings, such cooperative is operating in
violation of this Decree, rules and regulations, existing laws as well as the by-laws of the
cooperative itself;" the Order is reasonably necessary to correct serious flaws in the
cooperative and provide interim measures until election of regular members to the board
and officers thereof; the elections conducted on 6 January 1989 are valid; and that the
motion to dismiss filed by the new board of directors binds the cooperative. It prays for
the dismissal of the petition.
Respondent Secretary of Agriculture manifested on 22 September 1989 that he is
adopting the Comment submitted by the Office of the Solicitor General as his
memorandum; 37 petitioners and respondents Coronado and Madriaga filed their
separate Memoranda on 6 November 1989; 38 while the new board of directors submitted
its Memorandum on 11 December 1989. 39
The new KBMBPM board submitted additional pleadings on 16 February 1990 which it
deemed relevant to the issues involved herein. Reacting, petitioners filed a motion to
strike out improper and inadmissible pleadings and annexes and sought to have the
pleaders cited for contempt. Although We required respondents to comment, the latter
did not comply.
Nevertheless, a manifestation was filed by the same board on 25 February
1991 40 informing this Court of the holding, on 9 January 1991, of its annual general
assembly and election of its board of directors for 1991. It then reiterates the prayer that
the instant petition be considered withdrawn and dismissed. Petitioners filed a counter
manifestation alleging that the instant petition was already given due course on 9
August 1989. 41 In its traverse to the counter manifestation, the new board insists that it
"did not derive authority from the October 28, 1988 Order, the acts of the Management
Committee, nor (sic) from the elections held in (sic) January 6, 1989," but rather from the
members of the cooperative who elected them into office during the elections.
Petitioners filed a rejoinder asserting that the election of new directors is not a
supervening event independent of the main issue in the present petition and that to

subscribe to the argument that the issues in the instant petition became moot with their
assumption into office is to reward a wrong done.
G. R. NO. 91927
Petitioners claim that without ruling on their 20 October 1988 motion for an extension of
at last 15 days from 22 October 1988 within which to file their counter-affidavits, which
was received by the Office of the Special Prosecutor on 3 November 1988, Special
Prosecutor Onos promulgated on 11 November 1988 a Resolution finding the evidence
on hand sufficient to establish a prima facie case against respondents (herein
petitioners) and recommending the filing of the corresponding information against them
before the Sandiganbayan. 42Petitioners also claim that they submitted their counteraffidavits on 9 November 1988. 43
In their motion dated 2 December 1988, petitioners move for a reconsideration of the
above Resolution, 44 which was denied by Onos 45 in his 18 January 1989 Order. The
information against the petitioners was attached to this order.
Upon submission of the records for his approval, the Ombudsman issued a first
indorsement on 4 April 1989 referring to "Judge Gualberto J. de la Llana, Acting Director ,
IEO/RSSO, this Office, the within records of OSP Case No. 88-02110 . . . for further
preliminary investigation . . ." 46
Thereafter, on 28 April 1989, Bunye and company received a subpoena from de la Llana
requiring them to appear before the latter on 25 April 1989, 47 submit a report and file
comment. After being granted an extension, Bunye and company submitted their
comment on 18 May 1989. 48
On 22 August 1989, de la Llana recommended the filing of an information for violation of
section 3 (e) of the Anti-Graft and Corrupt Practices Act. 49 The case was referred to
special prosecuting officer Jose Parentela, Jr. who, in his Memorandum 50 to the
Ombudsman through the Acting Special Prosecutor, likewise urged that an information
be filed against herein petitioners. On 3 October 1989, the Ombudsman signed his
conformity to the Memorandum and approved the 18 January information prepared by
Onos, which was then filed with the Sandiganbayan.
Consequently, Bunye, et al. were served arrest warrants issued by the Sandiganbayan.
Detained at the NBI on 9 October 1989, they claim to have discovered only then the
existence of documents recommending and approving the filing of the complaint and a
memorandum by special prosecutor Bernardita G. Erum proposing the dismissal of the
same. 51
Arraignment was set for 18 October 1989.

52

However, on 14 October 1989, petitioners filed with the Sandiganbayan an "Omnibus

Motion to Remand to the Office of the Ombudsman; to Defer Arraignment and to
Suspend Proceedings." 53
Subsequently, through new counsel, petitioners filed on 17 October 1989 a Consolidated
Manifestation and Supplemental Motion 54 praying, inter alia, for the quashal of the
information on the ground that they were deprived of their right to a preliminary
investigation and that the information did not charge an offense.
The Sandiganbayan issued an order on 18 October 1989 deferring arraignment and
directing the parties to submit their respective memoranda, 55 which petitioners
complied with on 2 November 1989. 56 On 16 November 1989, special Prosecutor
Berbano filed a motion to admit amended
information. 57
On 17 November 1989, the Sandiganbayan handed down a Resolution 58 denying for lack
of merit the Omnibus Motion to Remand the Case To The Office of the Ombudsman, to
Defer Arraignment and to Suspend Proceedings. Petitioners then filed a motion to order a
preliminary investigation 59 on the basis of the introduction by the amended information
of new, material and substantive allegations, which the special prosecutor
opposed, 60 thereby precipitating a rejoinder filed by petitioners. 61
On 4 January 1990, the Sandiganbayan handed down a Resolution 62 admitting the
Amended Information and denying the motion to direct preliminary investigation. Their
motion to reconsider this Resolution having been denied in the Resolution of 1 February
1990, 63 petitioners filed the instant petition on 12 February 1990.
Petitioners claim that respondent Sandiganbayan acted without or in excess of
jurisdiction or with manifest grave abuse of discretion amounting to lack of jurisdiction in
denying petitioners their right to preliminary investigation and in admitting the Amended
Information.
They then pray that: (a) the 4 January and 1 February 1990 Resolutions of the
Sandiganbayan, admitting the amended information and denying the motion for
reconsideration, respectively, be annulled; (b) a writ be issued enjoining the
Sandiganbayan from proceeding further in Criminal Case No. 13966; and (c) respondents
be enjoined from pursuing further actions in the graft case.
We required the respondents to Comment on the petition.
On 21 February 1990, petitioners' counsel filed a motion to drop Epifanio Espeleta and
Rey E. Dulay as petitioners, 64 and in the Comment they filed on 30 March 1990, in
compliance with Our Resolution of 1 March 1990, they state that they do not interpose
any objection to the motion.

On 20 March 1990, the Office of the Solicitor General moved that it be excused from
filing comment for the respondents as it cannot subscribe to the position taken by the
latter with respect to the questions of law involved.65 We granted this motion in the
resolution of 8 May 1990.
Respondent Berbano filed his comment on 10 September 1991 and petitioners replied on
20 December 1990; Berbano subsequently filed a Rejoinder thereto on 11 January
1991. 66 The Sandiganbayan then filed a manifestation proposing that it be excused from
filing comment as its position
on the matters in issue is adequately stated in the resolutions sought to be
annulled. 67 On 7 March 1991, We resolved to note the manifestation and order the
instant petition consolidated with G.R. No. 85439.
The present dispute revolves around the validity of the antecedent proceedings which
led to the filing of the original information on 18 January 1989 and the amended
information afterwards.
THE ISSUES AND THEIR RESOLUTION
1. G. R. No. 85439.
As adverted to in the introductory portion of this Decision, the principal issue in G.R. No.
85439 is the validity of the 28 October 1988 Order of respondent Secretary of
Agriculture. The exordium of said Order unerringly indicates that its basis is the alleged
petition of the general membership of the KBMBPM requesting the Department for
assistance "in the removal of the members of the Board of Directors who were not
elected by the general membership" of the cooperative and that the "ongoing financial
and management audit of the Department of Agriculture auditors show (sic) that the
management of the KBMBPM is not operating that cooperative in accordance with P.D.
175, LOI 23, the Circulars issued by DA/BACOD and the provisions and by-laws of
KBMBPM." It is also professed therein that the Order was issued by the Department "in
the exercise of its regulatory and supervisory powers under Section 8 of P.D. 175, as
amended, and Section 4 of Executive Order No. 113."
Respondents challenge the personality of the petitioners to bring this action, set up the
defense of non-exhaustion of administrative remedies, and assert that the Order was
lawfully and validly issued under the above decree and Executive Order.
We find merit in the petition and the defenses interposed do not persuade Us.
Petitioners have the personality to file the instant petition and ask, in effect, for their
reinstatement as Section 3, Rule 65 of the Rules of Court, defining an action
for mandamus, permits a person who has been excluded from the use and enjoyment of
a right or office to which he is entitled, to file suit. 68 Petitioners, as ousted directors of

the KBMBPM, are questioning precisely the act of respondent Secretary in disbanding the
board of directors; they then pray that this Court restore them to their prior stations.
As to failure to exhaust administrative remedies, the rule is well-settled that this
requirement does not apply where the respondent is a department secretary whose acts,
as an alter ego of the President, bear the implied approval of the latter, unless actually
disapproved by him. 69 This doctrine of qualified political agency ensures speedy access
to the courts when most needed. There was no need then to appeal the decision to the
office of the President; recourse to the courts could be had immediately. Moreover, the
doctrine of exhaustion of administrative remedies also yields to other exceptions, such
as when the question involved is purely legal, as in the instant case, 70 or where the
questioned act is patently illegal, arbitrary or oppressive. 71 Such is the claim of
petitioners which, as hereinafter shown, is correct.
And now on the validity of the assailed Order.
Regulation 34 of Letter of Implementation No. 23 (implementing P.D. No. 175) provides
the procedure for the removal of directors or officers of cooperatives, thus:
An elected officer, director or committee member may be removed by a vote
of majority of the members entitled to vote at an annual or special general
assembly. The person involved shall have an opportunity to be heard.
A substantially identical provision, found in Section 17, Article III of the KBMBPM's bylaws, reads:
Sec. 17. Removal of Directors and Committee Members. Any elected
director or committee member may be removed from office for cause by a
majority vote of the members in good standing present at the annual or
special general assembly called for the purpose after having been given the
opportunity to be heard at the assembly.
Under the same article are found the requirements for the holding of both the annual
general assembly and a special general assembly.
Indubitably then, there is an established procedure for the removal of directors and
officers of cooperatives. It is likewise manifest that the right to due process is respected
by the express provision on the opportunity to be heard. But even without said provision,
petitioners cannot be deprived of that right.
The procedure was not followed in this case. Respondent Secretary of Agriculture
arrogated unto himself the power of the members of the KBMBPM who are authorized to
vote to remove the petitioning directors and officers. He cannot take refuge under
Section 8 of P.D. No. 175 which grants him authority to supervise and regulate all
cooperatives. This section does not give him that right.

An administrative officer has only such powers as are expressly granted to him and those
necessarily implied in the exercise thereof. 72 These powers should not be extended by
implication beyond what may to necessary for their just and reasonable execution. 73
Supervision and control include only the authority to: (a) act directly whenever a specific
function is entrusted by law or regulation to a subordinate; (b) direct the performance of
duty; restrain the commission of acts; (c) review, approve, reverse or modify acts and
decisions of subordinate officials or
units; (d) determine priorities in the execution of plans and programs; and (e) prescribe
standards, guidelines, plans and programs. Specifically, administrative supervision is
limited to the authority of the department or its equivalent to: (1) generally oversee the
operations of such agencies and insure that they are managed effectively, efficiently and
economically but without interference with day-to-day activities; (2) require the
submission of reports and cause the conduct of management audit, performance
evaluation and inspection to determine compliance with policies, standards and
guidelines of the department; (3) take such action as may be necessary for the proper
performance of official functions, including rectification of violations, abuses and other
forms of mal-administration; (4) review and pass upon budget proposals of such agencies
but may not increase or add to them. 74
The power to summarily disband the board of directors may not be inferred from any of
the foregoing as both P.D. No. 175 and the by-laws of the KBMBPM explicitly mandate the
manner by which directors and officers are to be removed. The Secretary should have
known better than to disregard these procedures and rely on a mere petition by the
general membership of the KBMBPM and an on-going audit by Department of Agriculture
auditors in exercising a power which he does not have, expressly or impliedly. We cannot
concede to the proposition of the Office of the Solicitor General that the Secretary's
power under paragraph (d), Section 8 of P.D. No. 175 above quoted to suspend the
operation or cancel the registration of any cooperative includes the "milder authority of
suspending officers and calling for the election of new officers." Firstly, neither
suspension nor cancellation includes the take-over and ouster of incumbent directors
and officers, otherwise the law itself would have expressly so stated. Secondly, even
granting that the law intended such as postulated, there is the requirement of a hearing.
None was conducted.
Likewise, even if We grant, for the sake of argument, that said power includes the power
to disband the board of directors and remove the officers of the KBMBPM, and that
a hearing was not expressly required in the law, still the Order can be validly issued only
after giving due process to the affected parties, herein petitioners.
Due process is guaranteed by the Constitution 75 and extends to administrative
proceedings. In the landmark case ofAng Tibay vs. Court of Industrial Relations, 76 this
Court, through Justice Laurel, laid down the cardinal primary requirements of due process
in administrative proceedings, foremost of which is the right to a hearing, which includes
the right to present one's case and submit evidence in support thereof. The need for

notice and the opportunity to be heard is the heart of procedural due process, be it in
either judicial or administrative proceedings. 77 Nevertheless, a plea of a denial of
procedural due process does not lie where a defect consisting in an absence of notice of
hearing was thereafter cured by the aggrieved party himself as when he had the
opportunity to be heard on a subsequent motion for reconsideration. This is consistent
with the principle that what the law prohibits is not the absence of previous notice but
the absolute absence thereof and lack of an opportunity to be heard. 78
In the instant case, there was no notice of a hearing on the alleged petition of the
general membership of the KBMBPM; there was, as well, not even a semblance of a
hearing. The Order was based solely on an alleged petition by the general membership
of the KBMBPM. There was then a clear denial of due process. It is most unfortunate that
it was done after democracy was restored through the peaceful people revolt at EDSA
and the overwhelming ratification of a new Constitution thereafter, which preserves for
the generations to come the gains of that historic struggle which earned for this Republic
universal admiration.
If there were genuine grievances against petitioners, the affected members should have
timely raise these issues in the annual general assembly or in a special general
assembly. Or, if such a remedy would be futile for some reason or another, judicial
recourse was available.
Be that as it may, petitioners cannot, however, be restored to their positions. Their terms
expired in 1989, thereby rendering their prayer for reinstatement moot and academic.
Pursuant to Section 13 of the by-laws, during the election at the first annual general
assembly after registration, one-half plus one (4) of the directors obtaining the highest
number of votes shall serve for two years, and the remaining directors (3) for one year;
thereafter, all shall be elected for a term of two years. Hence, in 1988, when the board
was disbanded, there was a number of directors whose terms would have expired the
next year (1989) and a number whose terms would have expired two years after (1990).
Reversion to the status quo preceding 29 October 1988 would not be feasible in view of
this turn of events. Besides, elections were held in 1990 and 1991. 79 The affairs of the
cooperative are presently being managed by a new board of directors duly elected in
accordance with the cooperative's by-laws.
2. G. R. No. 91927.
The right of an accused to a preliminary investigation is not among
the rights guaranteed him in the Bill of Rights. As stated in Marcos, et
al. vs. Cruz, 80 "the preliminary investigation in criminal cases is not a creation of the
Constitution; its origin is statutory and it exists and the right thereto can be invoked
when so established and granted by law. It is so specifically granted by procedural
law. 81 If not waived, absence thereof may amount to a denial of due
process. 82 However, lack of preliminary investigation is not a ground to quash or

dismiss a complaint or information. Much less does it affect the court's jurisdiction.
In People vs. Casiano, 83 this Court ruled:
Independently of the foregoing, the absence of such investigation
[preliminary] did not impair the validity of the information or otherwise
render it defective. Much less did it affect the jurisdiction of the court of first
instance over the present case. Hence, had the defendant-appellee been
entitled to another preliminary investigation, and had his plea of not guilty
upon arraignment not implied a waiver of said right, the court of first
instance should have, either conducted such preliminary investigation, or
ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the
Revised Administrative Code (as amended by Republic Act No. 732), or
remanded the record for said investigation to the justice of the peace court,
instead of dismissing the case as it did in the order appealed from.
This doctrine was thereafter reiterated or affirmed in several case. 84
In the instant case, even if it is to be conceded for argument's sake that there was in fact
no preliminary investigation, the Sandiganbayan, per Doromal
vs. Sandiganbayan, 85 "should merely suspend or hold in abeyance proceedings upon
the questioned Amended Information and remand the case to the Office of the
Ombudsman for him to conduct a preliminary investigation."
It is Our view, however, that petitioners were not denied the right to preliminary
investigation. They, nevertheless, insist that the preliminary investigation conducted by
the Office of the Special Prosecutor existed more in form than in substance. This is
anchored on the failure by prosecutor Onos to consider the counter-affidavits filed by
petitioners. The same sin of omission is ascribed to Acting Director de la Llana who
purportedly failed to consider the comments submitted by the petitioners pursuant to a
subpoena dated 13 April 1989. The failure of special prosecutor Berbano to conduct a
preliminary investigation before amending the information is also challenged.
It is finally urged that the Sandiganbayan completely disregarded the "glaring anomaly
that on its face the Information filed by the Office of the Special Prosecutor" was
prepared and subscribed on 18 January 1989, while the records indicate that the
preliminary investigation was concluded on 3 October 1989.
In his Comment, respondent Berbano dispassionately traces the genesis of the criminal
information filed before the Sandiganbayan. His assessment that a preliminary
investigation sufficient in substance and manner was conducted prior to the filing of the
information reflects the view of the Sandiganbayan, maintained in both the 17 November
1989 and 4 January 1990 resolutions, that there was compliance with the requirements
of due process.

Petitioners were provided a reasonable period within which to submit their counteraffidavits; they did not avail of the original period; they moved for an extension of at
least fifteen (15) days from 22 October 1988. Despite the urgency of its nature, the
motion was sent by mail. The extension prayed for was good up to 6 November 1988.
But, as admitted by them, they filed the Counter-Affidavits only on 9 November 1988.
Yet, they blamed prosecutor Onos for promulgating the 11 November 1989 Resolution
and for, allegedly, not acting on the motion. Petitioners then should not lay the blame on
Onos; they should blame themselves for presuming that the motion would be granted.
This notwithstanding, petitioners were able to file a Motion for Reconsideration on 13
December 1988 requesting that the reviewing prosecutor consider the belatedly filed
documents; 86 thus, there is the recommendation of prosecutor Bernardita Erum calling
for the dismissal of the charges on 2 March 1989, which, however, was not sustained
upon subsequent review. The Sandiganbayan, in its 17 November 1989 Resolution,
succinctly summed up the matter when it asserted that "even granting, for the sake of
argument, that prosecutor Onos . . . failed to consider accused-movants' counteraffidavits, such defect was cured when a "Motion for Reconsideration" was filed, and
which . . . de la Llana took into account upon review."
It may not then be successfully asserted that the counter-affidavits were not considered
by the Ombudsman in approving the information. Perusal of the factual antecedents
reveals that a second investigation was conducted upon the "1st Indorsement" of the
Ombudsman of 4 April 1989. As a result, subpoenas were issued and comments were
asked to be submitted, which petitioners did, but only after a further extension of fifteen
(15) days from the expiration of the original deadline. From this submission the matter
underwent further review.
Moreover, in the 18 January 1989 Order of prosecutor Onos, there was an ample
discussion of the defenses raised by the petitioners in their counter-affidavits, thus
negating the charge that the issues raised by them were not considered at all. 87
It is indisputable that the respondents were not remiss in their duty to afford the
petitioners the opportunity to contest the charges thrown their way. Due process does
not require that the accused actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that he be given the
opportunity to submit such if he is so minded. 88
In any event, petitioners did in fact, although belatedly, submit their counter-affidavits
and as a result thereof, the prosecutors concerned considered them in subsequent
reviews of the information, particularly in the re-investigation ordered by the
Ombudsman.
And now, as to the protestation of lack of preliminary investigation prior to the filing of
the Amended Information. The prosecution may amend the information without leave of
court before arraignment, 89 and such does not prejudice the accused. 90 Reliance on

the pronouncements in Doromal vs. Sandiganbayan 91 is misplaced as what obtained

therein was the preparation of an entirely new information as contrasted with mere
amendments introduced in the amended information, which also charges petitioners with
violating Section 3 (e) of the Anti-Graft Law.
In Gaspar vs. Sandiganbayan, 92 We held that there is no rule or law requiring the
Tanodbayan to conduct another preliminary investigation of a case under review by it. On
the contrary, under P.D. No. 911, in relation to Rule 12, Administrative Order No. VII, the
Tanodbayan may, upon review, reverse the findings of the investigator and thereafter
"where he finds a prima facie case, to cause the filing of an information in court against
the respondent, based on the same sworn statements or evidence submitted, without
the necessity of conducting another preliminary investigation."
Respondent Sandiganbayan did not then commit any grave abuse of discretion in respect
to its Resolutions of 4 January 1990 and 1 February 1990.
The petition then must fail.
CONCLUSION
WHEREFORE, judgment is hereby rendered:
1. GRANTING the petition in G.R. No. 85439; declaring null and void the challenged Order
of 28 October 1988 of the respondent Secretary of Agriculture; but denying, for having
become moot and academic, the prayer of petitioners that they be restored to their
positions in the KBMBPM.
2. DISMISSING, for lack of merit, the petition in G.R. No. 91927.
No pronouncement as to costs.
IT IS SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado and Romero, JJ., concur.
Gutierrez, Jr. and Nocon, JJ., took no part.

211. Angangco v Castillo

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17169

November 30, 1963

ISIDRO C. ANG-ANGCO, petitioner,

vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to
the Secretary of Commerce and Industry requesting for special permit to withdraw
certain commodities from the customs house which were imported without any dollar
allocation or remittance of foreign exchange. Said commodities consisted of 1,188 units
of pepsi-cola concentrates which were not covered by any Central Bank release

certificate. On the same date, the company addressed an identical request to the
Secretary of Finance who was also the Chairman of the Monetary Board of the Central
Bank. Senator Pedro Sabido, in behalf of the company, likewise wrote said official urging
that authority be given to withdraw the abovementioned concentrates. Not content with
this step, he also wrote to Dr. Andres Castillo, Acting Governor of the Central Bank,
urging, the same matter. Then Secretary Hernandez wrote another letter to Dr. Castillo
stating, "Senator Sabido is taking this to you personally. Unless we have legal objection, I
would like to authorize the withdrawal of the concentrates upon payment of all
charges in pesos. Please expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr.
Gregorio Licaros, submitted to the Monetary Board a memorandum on the joint petition
of the company and Sabido Law Office for authority to withdraw the concentrates from
the customs house stating therein that it sees no objection to the proposal. The
Monetary Board, however, failed to take up the matter in its meeting of October 12, 1956
for the reason that the transaction did not involve any dollar allocation or foreign
exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13,
1956, the counsel of the Pepsi-Cola Far East Trade Development Co., Inc., approached
Collector of Customs Isidro Ang-Angco in an attempt to secure from him the immediate
release of the concentrates, but this official seeing perhaps that the importation did not
carry any release certificate from the Central Bank advised the counsel to try to secure
the necessary release certificate from the No-Dollar Import Office that had jurisdiction
over the case. In the morning of the same day, Mr. Aquiles J. Lopez, of said Office, wrote
a letter addressed to the Collector of Customs stating, among other things, that his office
had no objection to the release of the 1,188 units of concentrates but that it could not
take action on the request as "the same is not within the jurisdiction of the No-Dollar
Import Office within the contemplation of R.A. No. 1410." The counsel already referred to
above showed the letter to Collector of Customs Ang-Angco who upon perusing it still
hesitated to grant the release. Instead he suggested that the letter be amended in order
to remove the ambiguity appearing therein, but Mr. Lopez refused to amend the letter
stating that the same was neither a permit nor a release. Secretary of Finance Hernandez
having been contacted by telephone, Collector of Customs Ang-Angco read to him the
letter after which the Secretary verbally expressed his approval of the release on the
basis of said certificate. Collector Ang-Angco, while still in doubt as to the propriety of
the action suggested, finally authorized the release of the concentrates upon payment of
the corresponding duties, customs charges, fees and taxes.
When Commissioner of Customs Manuel P. Manahan learned of the release of the
concentrates in question he immediately ordered their seizure but only a negligible
portion thereof remained in the warehouse. Whereupon, he filed an administrative
complaint against Collector of Customs Ang-Angco charging him with having committed
a grave neglect of duty and observed a conduct prejudicial to the best interest of the
customs service. On the strength of this complaint President Ramon Magsaysay

constituted an investigating committee to investigate Ang-Angco composed of former

Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col.
Angel A. Salcedo, as members. Together with Collector Ang-Angco, Mr. Aquiles J. Lopez,
was also investigated by the same Committee, who was also charged in a separate
complaint with serious misconduct in office or conduct prejudicial to the best interest of
the State. As a result, Collector Ang-Angco was suspended from office in the latter part of
December, 1956.
After the investigation, the committee submitted to President Magsaysay its report
recommending that a suspension of 15 days, without pay, be imposed upon Ang-Angco
chargeable against the period of his suspension. On April 1, 1957, Collector Ang-Angco
was reinstated to his office by Secretary Hernandez, but the decision on the
administrative case against him remained pending until the death of President
Magsaysay. After around three years from the termination of the investigation during
which period Ang-Angco had been discharging the duties of his office, Executive
Secretary Natalio P. Castillo, by authority of the President, rendered a decision on the
case on February 12, 1960 finding Ang-Angco "guilty of conduct prejudicial to the best
interest of the service", and considering him resigned effective from the date of notice,
with prejudice to reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to
President Carlos P. Garcia calling attention to the fact that the action taken by Secretary
Castillo in removing him from office had the effect of depriving him of his statutory right
to have his case originally decided by the Commissioner of Civil Service, as well as of his
right of appeal to the Civil Service Board of Appeals, whose decision under Republic Act
No. 2260 is final, besides the fact that such decision is in violation of the guaranty
vouchsafed by the Constitution to officers or employees in the civil service against
removal or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President,
denied the request for reconsideration. Not satisfied with this resolution, Collector AngAngco sent a memorandum to President Garcia reiterating once more the same grounds
on which he predicated his request for reconsideration. Again Secretary Castillo, also by
authority of the President, in letter dated July 1, 1960, denied the appeal. In this
instance, Secretary Castillo asserted that the President virtue of his power of control over
all executive departments, bureaus and offices, can take direct action and dispose of the
administrative case in question inasmuch as the provisions of law that would seem to
vest final authority in subordinate officers of the executive branch of the government
over administrative matters falling under their jurisdiction cannot divest the President of
his power of control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his
reinstatement to the office from which he was removed without any valid cause or in
violation of his right to due process of law, Collector Ang-Angco filed before this Court the
present petition for certiorari, prohibition and mandamus with a petition for the issuance

of a preliminary mandatory injunction. The Court gave due course to the petition, but
denied the request for injunction.
The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in
acting on his case by authority of the President in the sense of considering him as
resigned from notice thereof, violated the guaranty vouchsafed by the Constitution to
officers and employees in the classified service in that he acted in violation of Section 16
(i) of the Civil Service Act of 1959 which vests in the Commissioner of Civil Service the
original and exclusive jurisdiction to decide administrative cases against officers and
employees in the classified service, deprived him of his right of appeal under Section 18
(b) of the same Act to the Civil Service Board of Appeals whose decision on the matter is
final, and removed him from the service without due process in violation of Section 32 of
the same Act which expressly provides that the removal or suspension of any officer or
employee from the civil service shall be accomplished only after due process, and of
Section 4, Article XII of our Constitution which provides that "No officer or employee in
the civil service shall be removed except for cause as provided for by law." Since
petitioner is an officer who belongs to the classified civil service and is not a presidential
appointee, but one appointed by the Secretary of Finance under the Revised
Administrative Code, he cannot be removed from the service by the President in utter
disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They
admit that if the theory is to be considered in the light of the provisions of the Civil
Service Act of 1959, the same may be correct, for indeed the Civil Service Law as it now
stands provides that all officers and employees who belong to the classified service
come under the exclusive jurisdiction of the Commissioner of Civil Service and as such all
administrative cases against them shall be indorsed to said official whose decision may
be appealed to the Civil Service Board of Appeals from whose decision no further appeal
can be taken. They also admit that petitioner belongs to the classified civil service. But it
is their theory that the pertinent provisions of the Civil Service Law applicable to
employees in the classified service do not apply to the particular case of petitioner since
to hold otherwise would be to deprive the President of his power of control over the
officers and employees of the executive branch of the government. In other words,
respondents contend that, whether the officers or employees concerned are presidential
appointees or belong to the classified service, if they are all officers and employees in
the executive department, they all come under the control of the President and,
therefore, his power of removal may be exercised over them directly without distinction.
Indeed, respondents contend that, if, as held in the case ofNegado v. Castro, 55 O.G.,
10534, the President may modify or set aside a decision of the Civil Service Board of
Appeals at the instance of the office concerned, or the respondent employee, or may
even do so motu propio, there would be in the final analysis no logical difference
between removing petitioner by direct action of the President and separating him from
the service by ultimate action by the President should an appeal be taken from the
decision of the Civil Service Board of Appeals to him, or if in his discretion he may motu
proprio consider it necessary to review the Board's decision. It is contended that this

ruling still holds true in spite of the new provision wrought into the law by Republic Act
2260 which eliminated the power of review given to the President because the power of
control given by the Constitution to the President over officers and employees in the
executive department can only be limited by the Constitution and not by Congress, for to
permit Congress to do so would be to diminish the authority conferred on the President
by the Constitution which is tantamount to amending the Constitution itself (Hebron v.
Reyes, L- 9124, July 28, 1958). Indeed this is the argument invoked by respondent
Castillo in taking direct action against petitioner instead of following the procedure
outlined in the Civil Service Act of 1959 as may be seen from the following portion of his
decision.
In connection with the second ground advanced in support of your petition, it is
contended that in deciding the case directly, instead of transmitting it to the
Commissioner of Civil Service for original decision, his Office deprived the
respondent of his right to appeal to the Civil Service Board of Appeals. This
contention overlooks the principle that the President may modify or set aside a
decision of the Civil Service Board of Appeals at the instance of either the office
concerned or the respondent employee, or may even do so motu proprio (Negado
vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would therefore be no
difference in effect between direct action by the President and ultimate action by
him should an appeal be taken from the decision of the Commissioner of Civil
Service or the Civil Service Board of Appeals. The result is that the President's
direct action would be the final decision that would be reached in case an appeal
takes its due course.
Thus, we see that the main issue involved herein is whether the President has the power
to take direct action on the case of petitioner even if he belongs to the classified service
in spite of the provisions now in force in the Civil Service Act of 1959. Petitioner sustains
the negative contending that the contrary view would deprive him of his office without
due process of law while respondents sustain the affirmative invoking the power of
control given to the President by the Constitution over all officers and employees,
belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is
the Commissioner of Civil Service who has original and exclusive jurisdiction to decide
administrative cases of all officers and employees in the classified service for in said
section the following is provided: "Except as otherwise provided by law, (the
Commissioner shall) have final authority to pass upon the removal, separation and
suspension of all permanent officers and employees in the competitive or classified
service and upon all matters relating to the employees." The only limitation to this power
is that the decision of the Commissioner may be appealed to the Civil Service Board of
Appeals, in which case said Board shall decide the appeal within a period of 90 days after
the same has been submitted for decision, whose decision in such case shall be final
(Section 18, Republic Act 2260). It should be noted that the law as it now stands does not
provide for any appeal to the President, nor is he given the power to review the

decision motu proprio, unlike the provision of the previous law, Commonwealth Act No.
598, which was expressly repealed by the Civil Service Act of 1959 (Rep. Act 2260),
which provides that the decision of the Civil Service Board of Appeals may be reversed or
modified motu proprio by the President. It is, therefore, clear that under the present
provision of the Civil Service Act of 1959, the case of petitioner comes under the
exclusive jurisdiction of the Commissioner of Civil Service, and having been deprived of
the procedure laid down therein in connection with the investigation and disposition of
his case, it may be said that he has been deprived of due process as guaranteed by said
law.
It must, however, be noted that the removal, separation and suspension of the officers
and employees of the classified service are subject to the saving clause "Except as
otherwise provided by law" (Section 16 [i], Republic Act No. 2260). The question then
may be asked: Is the President empowered by any other law to remove officers and
employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised
Administrative Code, the pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the
offices held by such removed officials. For disloyalty to the (United States) Republic
of the Philippines, the (Governor-General) President of the Philippines may at any
time remove a person from any position of trust or authority under the
Government of the (Philippine Islands) Philippines.
The phrase "conformably to law" is significant. It shows that the President does not have
blanket authority move any officer or employee of the government but his power must
still be subject to the law that passed by the legislative body particularly with regard the
procedure, cause and finality of the removal of persons who may be the subject of
disciplinary action. Here, as above stated we have such law which governs action to be
taken against officers and employees in classified civil service. This law is binding upon
President.
Another provision that may be mentioned is Section (D) of the Revised Administrative
Code, which provides:
Power to appoint and remove. The Department Head, the recommendation of
the chief of the Bureau or office concerned, shall appoint all subordinate officers
and employees appointment is not expressly vested by law in the (GovernorGeneral) President of the Philippines, and may remove or punish them, except as
especially provided otherwise, in accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that
even granting for administrative purposes, the President of the Philippines is considered
as the Department Head of the Civil Service Commission, his power to remove is still

subject to the Civil Service Act of 1959, and we already know with regard to officers and
employees who belong to classified service the finality of the action is given to the
Commissioner of Civil Service or the Civil Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all
officers and employees in the executive department which is now in by respondents as
justification to override the specific visions of the Civil Service Act. This power of control
couched in general terms for it does not set in specific manner its extent and scope. Yes,
this Court in the case of Hebron v. Reyes, supra, had already occasion to interpret the
extent of such power to mean "the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter,"1 to distinguish it from the
power of general supervision over municipal government, but the decision does not go to
the extent of including the power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the exercise of control over the
acts of the subordinate and not over the actor or agent himself of the act. It only means
that the President may set aside the judgment or action taken by a subordinate in the
performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative
law. Thus, the Department Head pursuant to Section 79(C) is given direct control of all
bureaus and offices under his department by virtue of which he may "repeal or modify
decisions of the chiefs of said bureaus or offices", and under Section 74 of the same
Code, the President's control over the executive department only refers to matters
of general policy. The term "policy" means a settled or definite course or method
adopted and followed by a government, body, or individual,2 and it cannot be said that
the removal of an inferior officer comes within the meaning of control over a specific
policy of government.
But the strongest argument against the theory of respondents is that it would entirely
nullify and set at naught the beneficient purpose of the whole civil service system
implanted in this jurisdiction, which is to give stability to the tenure of office of those who
belong to the classified service, in derogation of the provisions of our Constitution which
provides that "No officer or employee in the civil service shall be removed or suspended
except for cause as provided by law" (Section 4, Article XII, Constitution).Here, we have
two provisions of our Constitution which are apparently in conflict, the power of control
by the President embodied in Section 10 (1), Article VII, and the protection extended to
those who are in the civil service of our government embodied in Section 4, Article XII. It
is our duty to reconcile and harmonize these conflicting provisions in a manner that may
give to both full force and effect and the only logical, practical and rational way is to
interpret them in the manner we do it in this decision. As this Court has aptly said in the
case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing
power subject to removal or forced transfer at any time, would demoralize and

undermine and eventually destroy the whole Civil Service System and structure.
The country would then go back to the days of the old Jacksonian Spoils System
under which a victorious Chief Executive, after the elections could if so minded,
sweep out of office, civil service employees differing in Political color or affiliation
from him, and sweep in his Political followers and adherents, especially those who
have given him help, political or otherwise. (Lacson v. Romero, 84 Phil. 740, 754)
There is some point in the argument that the Power of control of the President may
extend to the Power to investigate, suspend or remove officers and employees who
belong to the executive department if they are presidential appointees or do not belong
to the classified service for such can be justified under the principle that the power to
remove is inherent in the power to appoint (Lacson V. Romero, supra), but not with
regard to those officers or employees who belong to the classified service for as to them
that inherent power cannot be exercised. This is in line with the provision of our
Constitution which says that "the Congress may by law vest the appointment of the
inferior officers, in the President alone, in the courts, or in heads of department" (Article
VII, Section 10 [3], Constitution). With regard to these officers whose appointments are
vested on heads of departments, Congress has provided by law for a procedure for their
removal precisely in view of this constitutional authority. One such law is the Civil Service
Act of 1959.
We have no doubt that when Congress, by law, vests the appointment of inferior
officers in the heads of departments it may limit and restrict power of removal as it
seem best for the public interest. The constitutional authority in Congress to thus
vest the appointment implies authority to limit, restrict, and regulate the removal
by such laws as Congress may enact in relation to the officers so appointed. The
head of a department has no constitutional prerogative of appointment to officers
independently of legislation of Congress, and by such legislation he must be
governed, not only in making appointments but in all that is incident thereto. (U.S.
v. Perkins, 116 U.S. 483)
In resume, we may conclude that the action taken by respondent Executive Secretary,
even with the authority of the President, in taking direct action on the administrative
case of petitioner, without submitting the same to the Commissioner of Civil Service, is
contrary to law and should be set aside.
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office
as Collector of Customs for the Port of Manila, without prejudice of submitting his case to
the Commissioner of Civil Service to be dealt with in accordance with law. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and
Makalintal, JJ., concur.

212. Namarco V arca

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25743

September 30, 1969

NATIONAL MARKETING CORPORATION, CORNELIO BALMACEDA, JOSE

CALDERON, ANTONIO ARAMBULO, PEDRO BALINGIT, CIPRIANO MALONZO and
ROSENDO TOMAS, petitioners,
vs.
HON. FRANCISCO ARCA, Presiding Judge of the Court of First Instance of
Manila, Branch I and JUAN T. ARIVE, respondents.
Government Corporate Counsel Leopoldo M. Abellera and Trial Attorney Manuel M.
Lazaro for petitioners.
Paredes, Poblador, Cruz and Nazareno for respondents.

CAPISTRANO, J.:
This is an original action for certiorari and prohibition with prayer for a writ of preliminary
injunction to enjoin respondent Judge Francisco Arca from enforcing his Order dated
January 12, 1966, directing petitioners to reinstate respondent Juan T. Arive to his former
position in the National Marketing Corporation (hereinafter referred to as NAMARCO) and
the writ of preliminary mandatory injunction issued pursuant thereto on January 14,
1966.
Respondent Juan T. Arive was the Manager of the Traffic-Storage Department of the
NAMARCO receiving an annual compensation of P7,200.00. Pursuant to the General

Manager's Administrative Order No. 118 dated February 24, 1960, he was investigated
by a committee for violating Management Memorandum Order dated February 1, 1960,
directing "that the allocation and deliveries of merchandise imported under the so-called
Trade Assistance Program to its designated beneficiaries be stopped;" and causing the
improper release of shipments intended for delivery upon full payment thereof by the
Federation of United NAMARCO Distributors (FUND), which were covered by certain
domestic letters of credit for the total sum of P361,053.85. After due hearing, the
investigating committee found Arive guilty of the charges but left the imposition of the
penalty to the discretion of the General Manager and the Board of Directors.
Subsequently, the General Manager issued Administrative Order No. 137, series of 1960,
holding Arive guilty of the charges and dismissing him from the service. On November 4.
1960, the Board of Directors adopted Resolution No. 584-60 dismissing Arive from the
service effective as of the date of his suspension, with prejudice to his reinstatement in
the NAMARCO and to all benefits to which he would otherwise have been entitled, Arive
filed a motion for reconsideration, which was denied.
On March 2, 1961, Arive appealed from the decision of the NAMARCO to the President of
the Philippines. The NAMARCO was advised by the Office of the President of the appeal,
and was asked to forward the records of the administrative case. On January 26, 1965,
then Executive Secretary Ramon A. Diaz, presumably acting for the President, handed
down a decision setting aside Resolution No. 584-60 of the NAMARCO and reinstating
Juan T. Arive to his former position. In the decision it was pointed out that the order of
the NAMARCO stopping the further delivery of commodities imported under the trade
assistance program to the designated beneficiaries had been subsequently declared
illegal by the Supreme Court in the case of Federation of United NAMARCO Distributors
vs. NAMARCO, G. R. No. L-17819, March 31, 1962, on the ground that said order was a
violation of the contract of sale; hence, it would not be proper to hold Arive
administratively liable for his failure to comply with said order; and that the Pasig River
Bodegas being private warehouses over which Arive did not have supervision, much less
control, the release of the commodities therefrom could have been effected even had
Arive tried to block it. In the meantime, another person was appointed to the position
formerly occupied by Juan T. Arive.
On April 6, 1965, the NAMARCO, through its General Manager, in a letter addressed to
the President, asked for a reconsideration of the decision ordering Arive's reinstatement.
In that letter it was contended that the Office of the President had no jurisdiction to
review any decision of the NAMARCO Board of Directors removing, suspending, or
otherwise disciplining any of its subordinate employees, because Republic Act No. 1345
(the NAMARCO Charter), which grants that power to the General Manager and to the
Board of Directors, does not provide for an appeal to any governmental body. In a letter
to the NAMARCO dated June 8, 1965, then Executive Secretary Ramon A. Diaz, this time
expressly acting "[b]y authority of the President," refused to reconsider the decision,
stating that the President had jurisdiction under his constitutional power of control over
all executive departments, bureaus and offices, and directing that the decision be
implemented. The NAMARCO filed a second motion for reconsideration; and on

November 17, 1965, the President, through Salvador Marino, as Acting Executive
Secretary, denied the motion and again directed immediate compliance with the order of
reinstatement. On December 9, 1965, the Office of the President, acting on complaints of
Arive that he had not been reinstated in spite of the denial of the NAMARCO's two
motions for reconsideration, sent a telegram to the General Manager requesting him to
act on the case and to comment within forty-eight hours; but the said General Manager
neither acted on the case nor commented.
On December 23, 1965, respondent Juan T. Arive filed a complaint (Civil Case No. 63720)
with the Court of First Instance of Manila against the NAMARCO and the members of its
Board of Directors for reinstatement and damages, with prayer for a writ of preliminary
mandatory injunction. Hearing was held on the petition for issuance of the writ; and after
the parties had submitted their respective memoranda, respondent Judge issued an
order dated January 12, 1966, the pertinent portion of which reads:
... The Court is, however, of the view that the President of the Philippines does not
only exercise supervision but also control over all government-owned and
controlled corporations including the NAMARCO; hence, he may review, revise,
alter, modify or nullify the decision or action of the Board of Directors of any
government-owned and controlled corporation and substitute his judgment for that
of the latter. Plaintiff's right to reinstatement, therefore, appears to be very clear;
and considering that the effect of the issuance of the writ prayed for is rather to reestablish and maintain a pre-existing continuing relation between the parties and
considering further that there is an invasion of plaintiff's right and the injury is a
continuing one, the Court hereby grants plaintiff's prayer and hereby orders the
issuance of a writ of preliminary mandatory injunction directing the defendants to
immediately reinstate the plaintiff to his position as Manager of the Traffic Storage
Department of the National Marketing Corporation upon filing a bond in the
amount of P5,000.00.
Defendants filed a motion for reconsideration; and when the motion was denied, they
filed the present petition with this Court, which on March 15, 1966, issued a writ of
preliminary injunction.
The pivotal point at issue is whether the President of the Philippines had authority to
reverse the decision of the Board of Directors of the NAMARCO and to order the
reinstatement of Juan T. Arive. Respondents maintain that he had, and they anchor their
stand on Section 10(1), Article VII, of the Constitution, which reads:
The President shall have control of all executive departments bureau or offices,
exercise general supervision over all local governments as may be provided by
law, and take care that the laws be faithfully executed.
Petitioners, however, disagree, and contend that the word "offices," interpreted in the
light of the preceding words "executive departments," and "bureaus," refers to offices

performing governmental functions which have no juridical personality, and, therefore,

does not include government-owned and controlled corporations. They claim that the
above-quoted constitutional provision is not applicable and that what should apply is
Section 13(d) of Republic Act No. 1345, (NAMARCO Charter) which vests in the General
Manager the power and/or duty, with the approval of the Board of Directors, to remove,
suspend or otherwise discipline for cause any subordinate employee of the NAMARCO.
They contend that in reversing the order of the NAMARCO Board of Directors dismissing
Juan T. Arive from the service, and in ordering his reinstatement, the President of the
Philippines arrogated unto himself a power not authorized either by the Constitution or
by the law, hence his actuations were legally ineffective and certainly could not be a
basis for issuance of the writ of preliminary injunction.
We hold that the President of the Philippines' authority to review and reverse the
decision of the NAMARCO Board of Directors dismissing Juan T. Arive from his position in
the NAMARCO and to order his re-instatement falls within the constitutional power of the
President over all executive departments, bureaus and offices. Under our governmental
set-up, corporations owned or controlled by the government, such as the NAMARCO,
partake of the nature of government bureaus or offices, which are administratively
supervised by the Administrator of the Office of Economic Coordination, "whose
compensation and rank shall be that of a head of an Executive Department" and who
"shall be responsible to the President of the Philippines under whose control his functions
... shall be exercised." (Executive Order No. 386 of December 22, 1950, section 1, issued
under the Reorganization Act of 1950).
The fact that section 13(d) of Republic Act No. 1345 (the NAMARCO Charter and likewise
section 11(d) of the Uniform Charter for Government Owned or Controlled Corporations
(Ex. Order No. 399 of January 5, 1951) which authorize the general manager of such
corporations, with the approval of the Board of Directors, to remove for cause any
subordinate employee of the Corporation do not provide for an appeal from the general
manager's decision of removal to any superior officer, body or agency, does not mean
that no appeal lies from such decision to the President. In Lacson-Magallanes Co., Inc. vs.
Patio, (21 SCRA 895, 899), where the Court upheld the President's action through his
Executive Secretary of reversing a decision of the Director of Lands which had been
affirmed by the Secretary of Agriculture and Natural Resources, notwithstanding the
provision of Section 4 of Commonwealth Act No. 141 that such decisions "as to questions
of fact shall be conclusive," we stated that "the right to appeal to the President reposes
upon the President's power of control over the executive departments." And control
simply means "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for the latter." As enunciated through Justice Laurel in Planas vs.
Gil (69 Phil. 52, 76), "under the presidential type of government which we have
adopted ... all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and agents
of the Chief Executive."

We find the President's action through his Executive Secretary of reversing the NAMARCO
Board decision and ordering the reinstatement of respondent Arive to be an act of justice
due respondent. In the decision of January 20, 1965, then Executive Secretary Diaz
stated:
Moreover, it is an established fact that the Pasig River Bodegas is a private
warehouse. Arive did not have the supervision, much less the control, of said
warehouse. Under this circumstance, the release of the commodities in question
could have been effected even if Arive tried to do his best to block it. To
paraphrase Arive, and in this regard there is no evidence that contradicts him, his
only duty in connection with shipment imported by the NAMARCO for the FUND
under the trade assistance program was to undertake the proper clearance
therefor with the Bureau of Customs. Clearly, therefore, Arive should not be made
to suffer for the release of commodities in violation of the NAMARCO order of
February 1, 1960, even if it were lawful, which it is not according to the Supreme
Court, because the custody and release thereof were not within his control and
supervision. (Annex "A" of Complaint, Annex "C" of Petition) .
Executive Secretary Diaz further pointed out in the first denial on June 8, 1965 of
petitioner's motion for reconsideration that:
It cannot be said, therefore, that it was an act of insubordination on Arive's part not
to stop the release of the shipments in question in favor of the FUND. Had he done
so, in total disregard of a contract between NAMARCO and FUND which that
memorandum order violates, and of an injunction issued by the Court of First
Instance hearing the complaint filed by the FUND against the NAMARCO for specific
performance of that contract, he would have been held liable therefor, especially
considering that the shipments intended for the FUND were stored in a private
warehouse. The shipments could not have been stopped at all even if Arive did not
"okey for release" from the Bureau of Customs those shipments. Furthermore, the
memorandum order allegedly not obeyed by him was declared illegal by no less an
authority than the Supreme Court.
xxx

xxx

xxx

The primary question is whether Arive was illegally dismissed or not. Whether his
reinstatement would entail the alleged adverse effects is of secondary importance
and legal significance. This Office having found, in effect, that Arive was not
lawfully dismissed for cause, he was entitled to reinstatement and to the benefits
incidental thereto, inasmuch as his temporary cessation from work was not of his
own doing nor within his control. The fact that one has replaced him already is
immaterial because "legally speaking his position never became vacant, hence
there was no vacancy to which a new incumbent could be permanently appointed;
in other words, the new incumbent's occupancy of, or tenure in, said post is
temporary and precarious and does not come within the contemplation of the

Constitutional prohibition. (Batungbakal vs. National Development Company, et al.,

49 O.G. 2290)." (Annex "B" of Complaint, Annex "D" of Petition)
Implementation of the President's decision has been delayed all these long years by the
NAMARCO, notwithstanding the Government Corporate Counsel's advice and opinion that
"may not legally refuse to implement the decision of the Office of the President in the
performance of the exercise of his supervision and control over said government owned
and controlled corporations" (Op. No. 175, Series of 1963). Yet, in the case of a coemployee of respondent Arive, Victor Macaraig, who was similarly dismissed by the
Board, the NAMARCO Board promptly reinstated him on December 4, 1962, in
implementation of the President's decision of August 30, 1962, ordering his
reinstatement. (Annexes 2 and 3, Respondents' Answer) Arive's right to reinstatement by
virtue of the President's decision, which was reiterated twice in denying the petitioner's
persistent motions for reconsideration was, therefore, clearly established, and which is
now final and binding upon petitioners, and respondent judge did not act without
jurisdiction or with grave abuse of discretion in issuing the writ of preliminary mandatory
injunction for his immediate reinstatement. We deem it unnecessary to pass upon the
other issues raised by the parties, which are after all, merely incidental to the main issue
of the President's authority to review and reverse Resolution No. 584-60 of the NAMARCO
Board of Directors.
WHEREFORE, the petition is dismissed, with costs against petitioners.1awphl.nt The
writ of preliminary injunction issued on March 15, 1966 against the enforcement of
respondent judge's order dated January 12, 1966 and writ of preliminary mandatory
injunction dated January 14, 1966 in Civil Case No. 63720 of the Court of First Instance of
Manila is hereby dissolved effective immediately.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Teehankee and
Barredo, JJ., concur.
Reyes, J.B.L., J., is on leave.

213.Drilon v Lim
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 112497 August 4, 1994

HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF
JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER
ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF
MANILA, respondents.
The City Legal Officer for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).
Joseph Lopez for Sangguniang Panglunsod of Manila.
L.A. Maglaya for Petron Corporation.

CRUZ, J.:

The principal issue in this case is the constitutionality of Section 187 of the Local
Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue
Measures; Mandatory Public Hearings. The procedure for approval of local
tax ordinances and revenue measures shall be in accordance with the
provisions of this Code: Provided, That public hearings shall be conducted for
the purpose prior to the enactment thereof; Provided, further, That any
question on the constitutionality or legality of tax ordinances or revenue
measures may be raised on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render a decision within sixty
(60) days from the date of receipt of the appeal: Provided, however, That
such appeal shall not have the effect of suspending the effectivity of the
ordinance and the accrual and payment of the tax, fee, or charge levied
therein: Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary of Justice
acting upon the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies
and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue
Code, null and void for non-compliance with the prescribed procedure in the enactment
of tax ordinances and for containing certain provisions contrary to law and public policy. 1
In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila
revoked the Secretary's resolution and sustained the ordinance, holding inter alia that
the procedural requirements had been observed. More importantly, it declared Section
187 of the Local Government Code as unconstitutional because of its vesture in the
Secretary of Justice of the power of control over local governments in violation of the
policy of local autonomy mandated in the Constitution and of the specific provision
therein conferring on the President of the Philippines only the power of supervision over
local governments. 2
The present petition would have us reverse that decision. The Secretary argues that the
annulled Section 187 is constitutional and that the procedural requirements for the
enactment of tax ordinances as specified in the Local Government Code had indeed not
been observed.
Parenthetically, this petition was originally dismissed by the Court for non-compliance
with Circular 1-88, the Solicitor General having failed to submit a certified true copy of
the challenged decision. 3 However, on motion for reconsideration with the required
certified true copy of the decision attached, the petition was reinstated in view of the
importance of the issues raised therein.

We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general definition
of the judicial power to determine what are the valid and binding laws by the criterion of
their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial
courts jurisdiction over all civil cases in which the subject of the litigation is incapable of
pecuniary estimation,4 even as the accused in a criminal action has the right to question
in his defense the constitutionality of a law he is charged with violating and of the
proceedings taken against him, particularly as they contravene the Bill of Rights.
Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court
appellate jurisdiction over final judgments and orders of lower courts in all cases in which
the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
In the exercise of this jurisdiction, lower courts are advised to act with the utmost
circumspection, bearing in mind the consequences of a declaration of unconstitutionality
upon the stability of laws, no less than on the doctrine of separation of powers. As the
questioned act is usually the handiwork of the legislative or the executive departments,
or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to
the higher judgment of this Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion. 5
It is also emphasized that every court, including this Court, is charged with the duty of a
purposeful hesitation before declaring a law unconstitutional, on the theory that the
measure was first carefully studied by the executive and the legislative departments and
determined by them to be in accordance with the fundamental law before it was finally
approved. To doubt is to sustain. The presumption of constitutionality can be overcome
only by the clearest showing that there was indeed an infraction of the Constitution, and
only when such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the challenged act must
be struck down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local
Government Code unconstitutional insofar as it empowered the Secretary of Justice to
review tax ordinances and, inferentially, to annul them. He cited the familiar distinction
between control and supervision, the first being "the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for the latter," while the second is "the
power of a superior officer to see to it that lower officers perform their functions in
accordance with law." 6 His conclusion was that the challenged section gave to the
Secretary the power of control and not of supervision only as vested by the Constitution
in the President of the Philippines. This was, in his view, a violation not only of Article X,
specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of local
governments, 8 and the policy of local autonomy in general.

We do not share that view. The lower court was rather hasty in invalidating the provision.
Section 187 authorizes the Secretary of Justice to review only the constitutionality or
legality of the tax ordinance and, if warranted, to revoke it on either or both of these
grounds. When he alters or modifies or sets aside a tax ordinance, he is not also
permitted to substitute his own judgment for the judgment of the local government that
enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did
not replace it with his own version of what the Code should be. He did not pronounce the
ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his
judgment it was a bad law. What he found only was that it was illegal. All he did in
reviewing the said measure was determine if the petitioners were performing their
functions in accordance with law, that is, with the prescribed procedure for the
enactment of tax ordinances and the grant of powers to the city government under the
Local Government Code. As we see it, that was an act not of control but of mere
supervision.
An officer in control lays down the rules in the doing of an act. If they are not followed,
he may, in his discretion, order the act undone or re-done by his subordinate or he may
even decide to do it himself. Supervision does not cover such authority. The supervisor or
superintendent merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them. If the rules
are not observed, he may order the work done or re-done but only to conform to the
prescribed rules. He may not prescribe his own manner for the doing of the act. He has
no judgment on this matter except to see to it that the rules are followed. In the opinion
of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so
performed an act not of control but of mere supervision.
The case of Taule v. Santos 9 cited in the decision has no application here because the
jurisdiction claimed by the Secretary of Local Governments over election contests in the
Katipunan ng Mga Barangay was held to belong to the Commission on Elections by
constitutional provision. The conflict was over jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which
provided in its Section 2 as follows:
A tax ordinance shall go into effect on the fifteenth day after its passage,
unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any
ordinance within one hundred and twenty days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust,
excessive, oppressive, or confiscatory, or when it is contrary to declared
national economy policy, and when the said Secretary exercises this
authority the effectivity of such ordinance shall be suspended, either in part
or as a whole, for a period of thirty days within which period the local
legislative body may either modify the tax ordinance to meet the objections

thereto, or file an appeal with a court of competent jurisdiction; otherwise,

the tax ordinance or the part or parts thereof declared suspended, shall be
considered as revoked. Thereafter, the local legislative body may not
reimpose the same tax or fee until such time as the grounds for the
suspension thereof shall have ceased to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a tax
ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or
confiscatory. Determination of these flaws would involve the exercise
of judgment or discretion and not merely an examination of whether or not the
requirements or limitations of the law had been observed; hence, it would smack of
control rather than mere supervision. That power was never questioned before this Court
but, at any rate, the Secretary of Justice is not given the same latitude under Section
187. All he is permitted to do is ascertain the constitutionality or legality of the tax
measure, without the right to declare that, in his opinion, it is unjust, excessive,
oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon
set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of
certain ultra vires provisions and non-compliance with the prescribed procedure in its
enactment. These grounds affected the legality, not the wisdom or reasonableness, of
the tax measure.
The issue of non-compliance with the prescribed procedure in the enactment of the
Manila Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices of public
hearings on the proposed Manila Revenue Code that were sent to interested parties as
required by Art. 276(b) of the Implementing Rules of the Local Government Code nor
were copies of the proposed ordinance published in three successive issues of a
newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to
show that the obligatory public hearings had been held. Neither were copies of the
measure as approved posted in prominent places in the city in accordance with Sec.
511(a) of the Local Government Code. Finally, the Manila Revenue Code was not
translated into Pilipino or Tagalog and disseminated among the people for their
information and guidance, conformably to Sec. 59(b) of the Code.
Judge Palattao found otherwise. He declared that all the procedural requirements had
been observed in the enactment of the Manila Revenue Code and that the City of Manila
had not been able to prove such compliance before the Secretary only because he had
given it only five days within which to gather and present to him all the evidence
(consisting of 25 exhibits) later submitted to the trial court.
To get to the bottom of this question, the Court acceded to the motion of the
respondents and called for the elevation to it of the said exhibits. We have carefully
examined every one of these exhibits and agree with the trial court that the procedural
requirements have indeed been observed. Notices of the public hearings were sent to

interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are
found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed
ordinances were published in the Balita and the Manila Standard on April 21 and 25,
1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993
issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits
Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this omission does
not affect its validity, considering that its publication in three successive issues of a
newspaper of general circulation will satisfy due process. It has also not been shown that
the text of the ordinance has been translated and disseminated, but this requirement
applies to the approval of local development plans and public investment programs of
the local government unit and not to tax ordinances.
We make no ruling on the substantive provisions of the Manila Revenue Code as their
validity has not been raised in issue in the present petition.
WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of
the Regional Trial Court insofar as it declared Section 187 of the Local Government Code
unconstitutional but AFFIRMING its finding that the procedural requirements in the
enactment of the Manila Revenue Code have been observed. No pronouncement as to
costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

214. Carpio v Executive Secretary

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 96409 February 14, 1992

CITIZEN J. ANTONIO M. CARPIO, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL GOVERNMENTS, THE
SECRETARY OF NATIONAL DEFENSE and THE NATIONAL
TREASURER, respondents.

PARAS, J.:
At the very outset, it should be well to set forth the constitutional provision that is at the
core of the controversy now confronting us, thus:
Article XVI, Section 6:

The State shall establish and maintain one police force, which stall be
national in scope and civilian in character, to be administered and controlled
by a national police commission. The authority of local executives over the
police units in their jurisdiction shall be provided by law. 1
With the aforequoted provision in mind, Congress passed Republic Act No. 6975 entitled
"AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES"
as the consolidated version of House Bill No. 23614 and Senate Bill No. 463.
Following the said Act's approval by President Corazon C. Aquino on December 13, 1990,
it was published on December 17, 1990. 2
Presently, however, petitioner as citizen, taxpayer and member of the Philippine Bar
sworn to defend the Constitution, filed the petition now at bar on December 20, 1990,
seeking this Court's declaration of unconstitutionality of RA 6975 with prayer for
temporary restraining order.
But in an en banc resolution dated December 27, 1990, We simply required the public
respondents to file their Comment, without however giving due course to the petition
and the prayer therein. Hence, the Act took effect after fifteen days following its
publication, or on January 1, 1991. 3
Before we settle down on the merits of the petition, it would likewise be well to discuss
albeit briefly the history of our police force and the reasons for the ordination of Section
6, Article XVI in our present Constitution.
During the Commonwealth period, we had the Philippine Constabulary as the nucleus of
the Philippine Ground Force (PGF), now the Armed Forces of the Philippines (AFP). The PC
was made part of the PGF but its administrative, supervisory and directional control was
handled by the then Department of the Interior. After the war, it remained as the
"National Police" under the Department of National Defense, as a major service
component of the AFP. 4
Later, the Integration Act of 1975 5 created the Integrated National Police (INP) under the
Office of the President, with the PC as the nucleus, and the local police forces as the
civilian components. The PC-INP was headed by the PC Chief who, as concurrent
Director-General of the INP, exercised command functions over the INP. 6
The National Police Commission (NAPOLCOM) 7 exercised administrative control and
supervision while the local executives exercised operational supervision and direction
over the INP units assigned within their respective localities. 8
The set-up whereby the INP was placed under the command of the military component,
which is the PC, severely eroded the INP's civilian character and the multiplicity in the
governance of the PC-INP resulted in inefficient police service. 9 Moreover, the

integration of the national police forces with the PC also resulted in inequities since the
military component had superior benefits and privileges. 10
The Constitutional Commission of 1986 was fully aware of the structural errors that beset
the system. Thus, Com. Teodulo C. Natividad explained that:
xxx xxx xxx
MR. NATIVIDAD. . . . The basic tenet of a modern police
organization is to remove it from the military. 11
xxx xxx xxx
Here in our draft Constitution, we have already made a constitutional
postulate that the military cannot occupy any civil service position [in
Section 6 of the Article on the Civil Service 12] Therefore, in keeping with this
and because of the universal acceptance that a police force is a civilian
function, a public service, and should not be performed by military force, one
of the basic reforms we are presenting here is that it should be separated
from the military force which is the PC. 13
xxx xxx xxx
Furthermore:
xxx xxx xxx
. . . the civilian police cannot blossom into full profession because most of
the key positions are being occupied by the military So, it is up to this
Commission to remove the police from such a situation so that it can develop
into a truly professional civilian police. . . . 14
Hence, the "one police force, national in scope, and civilian in character" provision that is
now Article XVI, Section 6 of the 1987 Constitution.
And so we now come to the merits of the petition at hand.
In the main, petitioner herein respectfully advances the view that RA 6975 emasculated
the National Police Commission by limiting its power "to administrative control" over the
Philippine National Police (PNP), thus, "control" remained with the Department Secretary
under whom both the National Police Commission and the PNP were placed. 15
We do not share this view.

To begin with, one need only refer to the fundamentally accepted principle in
Constitutional Law that the President has control of all executive departments, bureaus,
and offices to lay at rest petitioner's contention on the matter.
This presidential power of control over the executive branch of government extends over
all executive officers from Cabinet Secretary to the lowliest clerk 17 and has been held by
us, in the landmark case of Mondano vs. Silvosa,18 to mean "the power of [the President]
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the
latter." It is said to be at the very "heart of the meaning of Chief Executive." 19
Equally well accepted, as a corollary rule to the control powers of the President, is the
"Doctrine of Qualified Political Agency". As the President cannot be expected to exercise
his control powers all at the same time and in person, 20 he will have to delegate some of
them to his Cabinet members.
Under this doctrine, which recognizes the establishment of a single executive, 21 "all
executive and administrative organizations are adjuncts of the Executive Department,
the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the Constitution
or law to act in person on the exigencies of the situation demand that he act personally,
the multifarious executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the regular course of business, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive." 22 (emphasis ours)
Thus, and in short, "the President's power of control is directly exercised by him over the
members of the Cabinet who, in turn, and by his authority, control the bureaus and other
offices under their respective jurisdictions in the executive department." 23
Additionally, the circumstance that the NAPOLCOM and the PNP are placed under the
reorganized Department of Interior and Local Government is merely an administrative
realignment that would bolster a system of coordination and cooperation among the
citizenry, local executives and the integrated law enforcement agencies and public
safety agencies created under the assailed Act, 24 the funding of the PNP being in large
part subsidized by the national government.
Such organizational set-up does not detract from the mandate of the Constitution that
the national police force shall be administered and controlled by a national police
commission as at any rate, and in fact, the Act in question adequately provides for
administration and control at the commission level, as shown in the following provisions,
to wit:

Sec. 14. Powers and Functions of the Commission. The Commission shall
exercise the following powers and functions:
xxx xxx xxx
(i) Approve or modify plans and programs on education and training,
logistical requirements, communications, records, information systems,
crime laboratory, crime prevention and crime reporting;
(j) Affirm, reverse or modify, through the National Appellate Board, personnel
disciplinary actions involving demotion or dismissal from the service imposed
upon members of the Philippine National Police by the Chief of the PNP;
(k) Exercise appellate jurisdiction through .the regional. appellate boards
over administrative cases against policemen and over decisions on claims for
police benefits;
xxx xxx xxx
Sec. 26. The Command and direction of the PNP shall be vested in the Chief
of the PNP . . . Such command and direction of the Chief of the PNP may be
delegated to subordinate officials with respect to the units under their
respective commands, in accordance with the rules and regulations
prescribed by the Commission. . . .
xxx xxx xxx
Sec. 35. . . . To enhance police operational efficiency and effectiveness, the
Chief of the PNP may constitute such other support units as may be
necessary subject to the approval of the Commission. . . .
xxx xxx xxx
Sec. 37. . . . There shall be established a performance evaluation system
which shall be administered in accordance with the rules, regulations and
standards; and a code of conduct promulgated by the Commission for
members of the PNP. . . .
xxx xxx xxx
Petitioner further asserts that in manifest derogation of the power of control of the
NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial
Director and the Chiefs of Police in the Governors and Mayors, respectively; the power of
"operational supervision and control" over police units in city and municipal mayors; in
the Civil Service Commission, participation in appointments to the positions of Senior
Superintendent to Deputy Director-General as well as the administration of qualifying

entrance examinations; disciplinary powers over PNP members in the "People's Law
Enforcement Boards" and in city and municipal mayors. 25
Once more, we find no real controversy upon the foregoing assertions.
It is true that when the Constitutional Commissioners of 1986 provided that the authority
of local executives over the police units in their jurisdiction shall be provided by law, they
intended that the day-to-day functions of police work like crime, investigation, crime
prevention activities, traffic control, etc., would be under the operational control of the
local executives as it would not be advisable to give full control of the police to the local
executives.26
They reasoned that in the past, this gave rise to warlordism, bossism, and sanctuaries for
vices and abuses. 27
It would appear then that by vesting in the local executives the power to choose the
officers in question, the Act went beyond the bounds of the Constitution's intent.
Not so. We find light in the principle of constitutional construction that every
presumption should be indulged in favor of constitutionality and the court in considering
the validity of the statute in question should give it such reasonable construction as can
be reached to bring it within the fundamental
law. 28
Under the questioned provisions, which read as follows:
D. PARTICIPATION OF LOCAL EXECUTIVES IN THE ADMINISTRATION OF THE
PNP.
Sec. 51. Powers of Local Government Officials over the PNP Units or Forces.
Governors and mayors shall be deputized as representatives of the
Commission in their respective territorial jurisdictions. As such, the local
executives shall discharge the following functions:
a.) Provincial Governor (1) . . .
The provincial governor shall choose the provincial director from a list of
three (3) eligibles recommended by the PNP Regional Director.
4) . . . City and municipal mayors shall have the following authority over the
PNP units in their respective jurisdictions:
i.) Authority to choose the chief of police from a list of five (5) eligibles
recommended by the Provincial Police Director. . . . (Emphasis ours)

full control remains with the National Police Commission.

We agree, and so hold, with the view of the Solicitor General that "there is no usurpation
of the power of control of the NAPOLCOM under Section 51 because under this very
same provision, it is clear that the local executives are only acting as representatives of
the NAPOLCOM. . . . As such deputies, they are answerable to the NAPOLCOM for their
actions in the exercise of their functions under that section. Thus, unless countermanded
by the NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." 29 It is
significant to note that the local officials, as NAPOLCOM representatives, will choose the
officers concerned from a list of eligibles (those who meet the general qualifications for
appointment to the PNP) 30 to be recommended by PNP officials.
The same holding is true with respect to the contention on the operational supervision
and control exercised by the local officials. Those officials would simply be acting as
representatives of the Commission.
As regards the assertion involving the Civil Service Commission, suffice it to say that the
questioned provisions, which read:
Sec. 31. Appointment of PNP Officers and Members. The Appointment of
the officers and members of the PNP shall be effected in the following
manner:
a.) Police Officer I to Senior Police Officer IV. Appointed by the PNP regional
director for regional personnel or by the Chief of the PNP for national
headquarters personnel and attested by the Civil Service Commission;
b.) Inspector to Superintendent. Appointed by the Chief of the PNP, as
recommended by their immediate superiors, and attested by the Civil
Service Commission;
c.) Senior Superintendent to Deputy Director-General. Appointed by the
President upon recommendation of the Chief of the PNP, with proper
endorsement by the Chairman of the Civil Service
Commission . . .
Sec. 32. Examinations for Policemen. The Civil Service Commission shall
administer the qualifying entrance examinations for policemen on the basis
of the standards set by the NAPOLCOM.
precisely underscore the civilian character of the national police force, and will
undoubtedly professionalize the same.
The grant of disciplinary powers over PNP members to the "People's Law Enforcement
Boards" (or the PLEB) and city and municipal mayors is also not in derogation of the
commission's power of control over the PNP.

Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional
appellate boards, over decisions of both the PLEB and the said mayors. This is so under
Section 20(c). Furthermore, it is the Commission which shall issue the implementing
guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings,
and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs
(Section 43-d4, d5).
As a disciplinary board primarily created to hear and decide citizen's complaints against
erring officers and members of the PNP, the establishment of PLEBs in every city, and
municipality would all the more help professionalize the police force.
Petitioner would likewise have this Court imagine that Section 12 of the questioned Act,
the pertinent portion of which reads:
Sec. 12. Relationship of the Department with the Department of National
Defense. During a period of twenty- four (24) months from the effectivity
of this Act, the Armed Forces of the Philippines (AFP) shall continue its
present role of preserving the internal and external security of the
State: Provided, that said period may be extended by the President, if he
finds it justifiable, for another period not exceeding twenty-four (24) months,
after which, the Department shall automatically take over from the AFP the
primary role of preserving internal security, leaving to the AFP its primary
role of preserving external security.
xxx xxx xxx
constitutes an "encroachment upon, interference with, and an abdication by the
President of, executive control and commander-in-chief powers."
That We are not disposed to do for such is not the case at all here. A rejection thus of
petitioner's submission anent Section 12 of the Act should be in order in the light of the
following exchanges during the CONCOM deliberations of Wednesday, October 1, 1986:
xxx xxx xxx
MR. RODRIGO. Just a few questions. The President of the Philippines is the
Commander-in-Chief of all the armed forces.
MR. NATIVIDAD. Yes, Madam President.
MR. RODRIGO. Since the national police is not integrated with the armed
forces, I do not suppose they come under the Commander-in-Chief powers of
the President of the Philippines.
MR. NATIVIDAD. They do, Madam President. By law they are under the
supervision and control of the President of the Philippines.

MR. RODRIGO. Yes, but the President is not the Commander-in-Chief of the
national police.
MR. NATIVIDAD. He is the President.
MR. RODRIGO. Yes, the Executive. But they do not come under that specific
provision that the President is Commander-in-Chief of all the armed forces.
MR. NATIVIDAD. No, not under the Commander-in-Chief provision.
MR. RODRIGO. There are two other powers of the President. The President
has control over departments, bureaus and offices, and supervision over
local governments. Under which does the police fall, under control or under
supervision?
MR. NATIVIDAD. Both, Madam President.
MR. RODRIGO. Control and Supervision.
MR. NATIVIDAD. Yes, in fact, the National Police Commission is under the
Office of the President. (CONCOM RECORDS, Vol. 5, p. 296)
It thus becomes all too apparent then that the provision herein assailed precisely gives
muscle to and enforces the proposition that the national police force does not fall under
the Commander-in-Chief powers of the President. This is necessarily so since the police
force, not being integrated with the military, is not a part of the Armed Forces of the
Philippines. As a civilian agency of the government, it properly comes within, and is
subject to, the exercise by the President of the power of executive control.
Consequently, Section 12 does not constitute abdication of commander-in-chief powers.
It simply provides for the transition period or process during which the national police
would gradually assume the civilian function of safeguarding the internal security of the
State. Under this instance, the President, to repeat, abdicates nothing of his war powers.
It would bear to here state, in reiteration of the preponderant view, that the President, as
Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose
duties under the Commander-in-Chief provision "represent only a part of the organic
duties imposed upon him. All his other functions are clearly civil in nature." 31 His
position as a civilian Commander-in-Chief is consistent with, and a testament to, the
constitutional principle that "civilian authority is, at all times, supreme over the military."
(Article II, Section 3, 1987 Constitution)
Finally, petitioner submits that the creation of a "Special Oversight Committee" under
Section 84 of the Act, especially the inclusion therein of some legislators as members
(namely: the respective Chairmen of the Committee on Local Government and the
Committee on National Defense and Security in the Senate, and the respective Chairmen
of the Committee on Public Order and Security and the Committee on National Defense

in the House of Representatives) is an "unconstitutional encroachment upon and a

diminution of, the President's power of control over all executive departments, bureaus
and offices."
But there is not the least interference with the President's power of control under Section
84. The Special Oversight Committee is simply an ad hoc or transitory body, established
and tasked solely with planning and overseeing the immediate "transfer, merger and/or
absorption" into the Department of the Interior and Local Governments of the "involved
agencies." This it will undertake in accordance with the phases of implementation
already laid down in Section 85 of the Act and once this is carried out, its functions as
well as the committee itself would cease altogether. 32 As an ad hoc body, its creation
and the functions it exercises, decidedly do not constitute an encroachment and in
diminution of the power of control which properly belongs to the President. What is more,
no executive department, bureau or office is placed under the control or authority, of the
committee. 33
As a last word, it would not be amiss to point out here that under the Constitution, there
are the so-calledindependent Constitutional Commissions, namely: The Civil Service
Commission, Commission on Audit, and the Commission on Elections. (Article IX-A,
Section 1)
As these Commissions perform vital governmental functions, they have to be protected
from external influences and political pressures. Hence, they were made constitutional
bodies, independent of and not under any department of the government. 34 Certainly,
they are not under the control of the President.
The Constitution also created an independent office called the "Commission on Human
Rights." (Article XIII, Section 17[1]).However, this Commission is not on the same level as
the Constitutional Commissions under Article IX, although it is independent like the latter
Commissions. 35 It still had to be constituted thru Executive Order No. 163 (dated May 5,
1987).
In contrast, Article XVI, Section 6 thereof, merely mandates the statutory creation of a
national police commission that will administer and control the national police force to be
established thereunder.
This commission is, for obvious reasons, not in the same category as
the independent Constitutional Commissions of Article IX and the other constitutionally
created independent Office, namely, the Commission on Human Rights.
By way of resume, the three Constitutional Commissions (Civil Service, Audit, Elections)
and the additional commission created by the Constitution (Human Rights) are
all independent of the Executive; but the National Police Commission is not. 36 In fact, it
was stressed during the CONCOM deliberations that this commission would be under the

President, and hence may be controlled by the President, thru his or her alter ego, the
Secretary of the Interior and Local Government.
WHEREFORE, having in view all of the foregoing holdings, the instant petition is hereby
DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

215. SANLAKAS v Executive Secretary

EN BANC
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA,
represented by REP. RENATO MAGTUBO petitioners, vs.EXECUTIVE
SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR.
GEN. HERMOGENES EBDANE, respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S.
ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R.
SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE
SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON
DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES,
and HON. SECRETARY JOSE LINA, JR., respondents.
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT,
REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J.
TALINO-SANTOS,
and
REP.
GEORGILU
R.
YUMULHERMIDA, petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO; and
EXECUTIVE SECRETARY ALBERTO G. ROMULO, respondents.
[G.R. No. 159196. February 3, 2004]
AQUILINO
Q.
PIMENTEL,
JR.
as
a
Member
of
the
Senate, petitioner, vs. SECRETARY ALBERTO ROMULO, AS EXECUTIVE
SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL
DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE ARMED
FORCES; SECRETARY JOSE LINA, et al., respondents.
DECISION
TINGA, J.:
They came in the middle of the night. Armed with high-powered ammunitions and
explosives, some three hundred junior officers and enlisted men of the Armed Forces of
the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in
the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers

demanded, among other things, the resignation of the President, the Secretary of
Defense and the Chief of the Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President issued later in the day
Proclamation No. 427 and General Order No. 4, both declaring a state of rebellion and
calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with highpowered firearms and explosives, acting upon the instigation and command and
direction of known and unknown leaders, have seized a building in Makati City, put
bombs in the area, publicly declared withdrawal of support for, and took arms against
the duly constituted Government, and continue to rise publicly and show open hostility,
for the purpose of removing allegiance to the Government certain bodies of the Armed
Forces of the Philippines and the Philippine National Police, and depriving the President of
the Republic of the Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code,
as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters
in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of the Armed Forces of the
Philippines, may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
by law, hereby confirm the existence of an actual and on-going rebellion, compelling me
to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18,
Article VII of the Constitution, calling out the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the necessary actions and measures
to suppress and quell the rebellion with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL
POLICE TO SUPPRESS REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with highpowered firearms and explosives, acting upon the instigation and command and
direction of known and unknown leaders, have seized a building in Makati City, put
bombs in the area, publicly declared withdrawal of support for, and took arms against
the duly constituted Government, and continue to rise publicly and show open hostility,
for the purpose of removing allegiance to the Government certain bodies of the Armed
Forces of the Philippines and the Philippine National Police, and depriving the President of
the Republic of the Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 et seq. of the Revised
Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters
in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of all Armed Forces of the
Philippines, may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
by the Constitution as President of the Republic of the Philippines and Commander-inChief of all the armed forces of the Philippines and pursuant to Proclamation No. 427
dated July 27, 2003, do hereby call upon the Armed Forces of the Philippines and the
Philippine National Police to suppress and quell the rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the
Philippine National Police and the officers and men of the Armed Forces of the Philippines
and the Philippine National Police to immediately carry out the necessary and
appropriate actions and measures to suppress and quell the rebellion with due regard to
constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long
negotiations, the soldiers agreed to return to barracks. The President, however, did not
immediately lift the declaration of a state of rebellion and did so only on August 1, 2003,
through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was
declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the
basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18
of the Constitution, the Armed Forces of the Philippines and the Philippine National Police
were directed to suppress and quell the rebellion;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have
effectively suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue
of the powers vested in me by law, hereby declare that the state of rebellion has ceased
to exist.
In the interim, several petitions were filed before this Court challenging the validity of
Proclamation No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list
organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18,
Article VII of the Constitution does not require the declaration of a state of rebellion to
call out the armed forces.[3] They further submit that, because of the cessation of the
Oakwood occupation, there exists no sufficient factual basis for the proclamation by the
President of a state of rebellion for an indefinite period.[4]
Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et
al.) are officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers,
law professors and bar reviewers.[5] Like Sanlakas and PM, they claim that Section 18,
Article VII of the Constitution does not authorize the declaration of a state of rebellion.
[6]
They contend that the declaration is a constitutional anomaly that confuses, confounds
and misleads because [o]verzealous public officers, acting pursuant to such proclamation
or general order, are liable to violate the constitutional right of private citizens.
[7]
Petitioners also submit that the proclamation is a circumvention of the report
requirement under the same Section 18, Article VII, commanding the President to submit
a report to Congress within 48 hours from the proclamation of martial law. [8] Finally, they
contend that the presidential issuances cannot be construed as an exercise of
emergency powers as Congress has not delegated any such power to the President. [9]
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive
Secretary Romulo), petitioners brought suit as citizens and as Members of the House of
Representatives whose rights, powers and functions were allegedly affected by the
declaration of a state of rebellion. [10] Petitioners do not challenge the power of the
President to call out the Armed Forces. [11] They argue, however, that the declaration of a
state of rebellion is a superfluity, and is actually an exercise of emergency powers.
[12]
Such exercise, it is contended, amounts to a usurpation of the power of Congress
granted by Section 23 (2), Article VI of the Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject
presidential issuances as an unwarranted, illegal and abusive exercise of a martial law
power that has no basis under the Constitution. [14] In the main, petitioner fears that the
declaration of a state of rebellion opens the door to the unconstitutional implementation
of warrantless arrests for the crime of rebellion.[15]

Required to comment, the Solicitor General argues that the petitions have been
rendered moot by the lifting of the declaration. [16] In addition, the Solicitor General
questions the standing of the petitioners to bring suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation No.
435, declaring that the state of rebellion has ceased to exist, has rendered the case
moot. As a rule, courts do not adjudicate moot cases, judicial power being limited to the
determination of actual controversies.[18] Nevertheless, courts will decide a question,
otherwise moot, if it is capable of repetition yet evading review. [19] The case at bar is one
such case.
Once before, the President on May 1, 2001 declared a state of rebellion and called
upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and
General Order No. 1. On that occasion, an angry and violent mob armed with explosives,
firearms, bladed weapons, clubs, stones and other deadly weapons assaulted and
attempted to break into Malacaang.[20] Petitions were filed before this Court assailing the
validity of the Presidents declaration. Five days after such declaration, however, the
President lifted the same. The mootness of the petitions in Lacson v. Perez and
accompanying cases[21] precluded this Court from addressing the constitutionality of the
declaration.
To prevent similar questions from reemerging, we seize this opportunity to finally lay
to rest the validity of the declaration of a state of rebellion in the exercise of the
Presidents calling out power, the mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have
standing to challenge the subject issuances. In Philippine Constitution Association v.
Enriquez, [22]this Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion by the
President is tantamount to an exercise of Congress emergency powers, thus impairing
the lawmakers legislative powers. Petitioners also maintain that the declaration is a
subterfuge to avoid congressional scrutiny into the Presidents exercise of martial law
powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing
or locus standi to bring suit. Legal standing or locus standi has been defined as a

personal and substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being challenged. The gist
of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.[23]
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their programs,
petitioners are committed to assert, defend, protect, uphold, and promote the rights,
interests, and welfare of the people, especially the poor and marginalized classes and
sectors of Philippine society. Petitioners are committed to defend and assert human
rights, including political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in
the exercise of their Constitutional rights to peaceably assemble and their freedom of
speech and of expression underSection 4, Article III of the 1987 Constitution, as a
vehicle to publicly ventilate their grievances and legitimate demands and to mobilize
public opinion to support the same.[24] [Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng
Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez:
petitioner has not demonstrated any injury to itself which would justify the resort to the
Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be
threatened by a warrantless arrest.Nor is it alleged that its leaders, members, and
supporters are being threatened with warrantless arrest and detention for the crime of
rebellion. Every action must be brought in the name of the party whose legal rights has
been invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for declaratory relief,
petitioner claiming that it[]s right to freedom of expression and freedom of assembly is
affected by the declaration of a state of rebellion and that said proclamation is invalid for
being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a
petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction of the
court to cases affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.[25]

Even assuming that petitioners are peoples organizations, this status would not vest
them with the requisite personality to question the validity of the presidential issuances,
as this Court made clear in Kilosbayan v. Morato: [26]
The Constitution provides that the State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the democratic
framework, their legitimate and collective interests and aspirations through peaceful and
lawful means, that their right to effective and reasonable participation at all levels of
social, political, and economic decision-making shall not be abridged. (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in
interest or those with standing, as the case may be, may invoke the judicial power. The
jurisdiction of this Court, even in cases involving constitutional questions, is limited by
the case and controversy requirement of Art. VIII, 5. This requirement lies at the very
heart of the judicial function. It is what differentiates decisionmaking in the courts from
decisionmaking in the political departments of the government and bars the bringing of
suits by just any party.[27]
That petitioner SJS officers/members are taxpayers and citizens does not necessarily
endow them with standing. A taxpayer may bring suit where the act complained of
directly involves the illegal disbursement of public funds derived from taxation. [28] No
such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question only
when he can show that he has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the injury is fairly traceable to
the challenged action; and the injury is likely to be redressed by a favorable action.
[29]
Again, no such injury is alleged in this case.
Even granting these petitioners have standing on the ground that the issues they
raise are of transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution does
not require the President to make a declaration of a state of rebellion. Section 18, Article
VII provides:
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 writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special session, may

revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis for the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus 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 the jurisdiction on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released. [Emphasis
supplied.]
The above provision grants the President, as Commander-in-Chief, a sequence of
graduated power[s].[30] 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. In the exercise of the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or rebellion, and that public
safety requires the exercise of such power. [31] However, as we observed in Integrated Bar
of the Philippines v. Zamora,[32][t]hese conditions are not required in the exercise of the
calling out power. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion.
Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit
the President from declaring a state of rebellion. Note that the Constitution vests the
President not only with Commander-in-Chief powers but, first and foremost,
with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The executive power
shall be vested in the President. As if by exposition, Section 17 of the same Article
provides: He shall ensure that the laws be faithfully executed. The provisions trace their
history to the Constitution of the United States.

The specific provisions of the U.S. Constitution granting the U.S. President executive
and commander-in-chief powers have remained in their original simple form since the
Philadelphia Constitution of 1776, Article II of which states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United States of
America . . . .
....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the
United States. . . .
....
Section 3. he shall take care that the laws be faithfully executed. [Article II Executive
Power]
Recalling in historical vignettes the use by the U.S. President of the above-quoted
provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is
instructive. Clad with the prerogatives of the office and endowed with sovereign powers,
which are drawn chiefly from the Executive Power and Commander-in-Chief provisions,
as well as the presidential oath of office, the President serves as Chief of State or Chief of
Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.
[33]

First to find definitive new piers for the authority of the Chief of State, as the
protector of the people, was President Andrew Jackson. Coming to office by virtue of a
political revolution, Jackson, as President not only kept faith with the people by driving
the patricians from power. Old Hickory, as he was fondly called, was the first President to
champion the indissolubility of the Union by defeating South Carolinas nullification effort.
[34]

The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the
hotspurs from South Carolina. Its State Legislature ordered an election for a convention,
whose members quickly passed an Ordinance of Nullification. The Ordinance declared
the Tariff Acts unconstitutional, prohibited South Carolina citizens from obeying them
after a certain date in 1833, and threatened secession if the Federal Government sought
to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling
punitive laws aimed at any who sought to pay or collect customs duties.[35]
Jackson bided his time. His task of enforcement would not be easy. Technically, the
President might send troops into a State only if the Governor called for help to suppress
an insurrection, which would not occur in the instance. The President could also send
troops to see to it that the laws enacted by Congress were faithfully executed. But these
laws were aimed at individual citizens, and provided no enforcement machinery against
violation by a State. Jackson prepared to ask Congress for a force bill.[36]

In a letter to a friend, the President gave the essence of his position. He wrote: . . .
when a faction in a State attempts to nullify a constitutional law of Congress, or to
destroy the Union, the balance of the people composing this Union have a perfect right
to coerce them to obedience. Then in a Proclamation he issued on December 10, 1832,
he called upon South Carolinians to realize that there could be no peaceable interference
with the execution of the laws, and dared them, disunion by armed force is treason. Are
you ready to incur its guilt? [37]
The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon,
State Legislatures began to adopt resolutions of agreement, and the President
announced that the national voice from Maine on the north to Louisiana on the south had
declared nullification and accession confined to contempt and infamy.[38]
No other President entered office faced with problems so formidable, and enfeebled
by personal and political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and
restricted, and sought some source of executive power not failed by misuse or wrecked
by sabotage. He seized upon the Presidents designation by the Constitution as
Commander-in-Chief, coupled it to the executive power provision and joined them as the
war power which authorized him to do many things beyond the competence of Congress.
[39]

Lincoln embraced the Jackson concept of the Presidents independent power and duty
under his oath directly to represent and protect the people. In his Message of July 4,
1861, Lincoln declared that the Executive found the duty of employing the war power in
defense of the government forced upon him. He could not but perform the duty or
surrender the existence of the Government . . . . This concept began as a transition
device, to be validated by Congress when it assembled. In less than two-years, it grew
into an independent power under which he felt authorized to suspend the privilege of the
writ of habeas corpus, issue the Emancipation Proclamation, and restore reoccupied
States.[40]
Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service,
according to the proclamation, would be to recapture forts, places and property, taking
care to avoid any devastation, any destruction of or interference with property, or any
disturbance of peaceful citizens.[41]
Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the
war powers without the benefit of Congress. The decision was handed in the
celebrated Prize Cases[42] which involved suits attacking the Presidents right to legally
institute a blockade. Although his Proclamation was subsequently validated by Congress,
the claimants contended that under international law, a blockade could be instituted only
as a measure of war under the sovereign power of the State. Since under the
Constitution only Congress is exclusively empowered to declare war, it is only that body

that could impose a blockade and all prizes seized before the legislative declaration were
illegal. By a 5 to 4 vote, the Supreme Court upheld Lincolns right to act as he had.[43]
In the course of time, the U.S. Presidents power to call out armed forces and suspend
the privilege of the writ of habeas corpus without prior legislative approval, in case of
invasion, insurrection, or rebellion came to be recognized and accepted. The United
States introduced the expanded presidential powers in the Philippines through the
Philippine Bill of 1902.[44] The use of the power was put to judicial test and this Court held
that the case raised a political question and said that it is beyond its province to inquire
into the exercise of the power.[45] Later, the grant of the power was incorporated in the
1935 Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it
made him the trustee of all the people. Guided by the maxim that Public office is a public
trust, which he practiced during his incumbency, Cleveland sent federal troops to Illinois
to quell striking railway workers who defied a court injunction. The injunction banned all
picketing and distribution of handbills. For leading the strikes and violating the injunction,
Debs, who was the union president, was convicted of contempt of court. Brought to the
Supreme Court, the principal issue was by what authority of the Constitution or statute
had the President to send troops without the request of the Governor of the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It
ruled that it is not the governments province to mix in merely individual present
controversies. Still, so it went on, whenever wrongs complained of are such as affect the
public at large, and are in respect of matters which by the Constitution are entrusted to
the care of the Nation and concerning which the Nation owes the duty to all citizens of
securing to them their common rights, then the mere fact that the Government has no
pecuniary interest in the controversy is not sufficient to exclude it from the Courts, or
prevent it from taking measures therein to fully discharge those constitutional duties.
[49]
Thus, Clevelands course had the Courts attest.
Taking off from President Cleveland, President Theodore Roosevelt launched what
political scientists dub the stewardship theory. Calling himself the steward of the people,
he felt that the executive power was limited only by the specific restrictions and
prohibitions appearing in the Constitution, or impleaded by Congress under its
constitutional powers.[50]
The most far-reaching extension of presidential power T.R. ever undertook to employ
was his plan to occupy and operate Pennsylvanias coal mines under his authority as
Commander-in-Chief. In the issue, he found means other than force to end the 1902
hard-coal strike, but he had made detailed plans to use his power as Commander-inChief to wrest the mines from the stubborn operators, so that coal production would
begin again.[51]

Eventually, the power of the State to intervene in and even take over the operation of
vital utilities in the public interest was accepted. In the Philippines, this led to the
incorporation of Section 6, [52] Article XIII of the 1935 Constitution, which was later carried
over with modifications in Section 7, [53] Article XIV of the 1973 Constitution, and
thereafter in Section 18,[54] Article XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the Commanderin-Chief powers are broad enough as it is and become more so when taken together with
the provision on executive power and the presidential oath of office. Thus, the plenitude
of the powers of the presidency equips the occupant with the means to address
exigencies or threats which undermine the very existence of government or the integrity
of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene
R. Cortes, proposed that the Philippine President was vested with residual power and that
this is even greater than that of the U.S. President. She attributed this distinction to the
unitary and highly centralized nature of the Philippine government. She noted that, There
is no counterpart of the several states of the American union which have reserved
powers under the United States constitution. Elaborating on the constitutional basis for
her argument, she wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the
government in this manner: The legislative power shall be vested in a Congress of the
Philippines which shall consist of a Senate and a House of Representatives. The
executive power shall be vested in a President of the Philippines. The judicial powers
shall be vested in one Supreme Court and in such inferior courts as may be provided by
law. These provisions not only establish a separation of powers by actual division but
also confer plenary legislative, executive, and judicial powers. For as the Supreme Court
of the Philippines pointed out in Ocampo v. Cabangis, a grant of legislative power means
a grant of all the legislative power; and a grant of the judicial power means a grant of all
the judicial power which may be exercised under the government. If this is true of the
legislative power which is exercised by two chambers with a combined membership [at
that time] of more than 120 and of the judicial power which is vested in a hierarchy of
courts, it can equally if not more appropriately apply to the executive power which is
vested in one official the president. He personifies the executive branch. There is a unity
in the executive branch absent from the two other branches of government. The
president is not the chief of many executives. He is the executive. His direction of the
executive branch can be more immediate and direct than the United States president
because he is given by express provision of the constitution control over all executive
departments, bureaus and offices.[55]
The esteemed Justice conducted her study against the backdrop of the 1935
Constitution, the framers of which, early on, arrived at a general opinion in favor of a
strong Executive in the Philippines.[56] Since then, reeling from the aftermath of martial

law, our most recent Charter has restricted the Presidents powers as Commander-inChief. The same, however, cannot be said of the Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents power to
forbid the return of her exiled predecessor. The rationale for the majoritys ruling rested
on the Presidents
unstated residual powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution. The powers of
the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of
Mr. Marcos, for the result was a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the general
grant of executive power.[57] [Underscoring supplied. Italics in the original.]
Thus, the Presidents 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. Indeed, as the Solicitor General accurately points out,
statutory authority for such a declaration may be found in Section 4, Chapter 2
(Ordinance Power), Book III (Office of the President) of the Revised Administrative Code
of 1987, which states:
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. [Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a
declaration of a state of rebellion is an utter superfluity. [58] At most, it only gives notice to
the nation that such a state exists and that the armed forces may be called to prevent or
suppress it.[59] Perhaps the declaration may wreak emotional effects upon the perceived
enemies of the State, even on the entire nation. But this Courts mandate is to probe only
into the legal consequences of the declaration. This Court finds that such a declaration is
devoid of any legal significance. For all legal intents, the declaration is deemed not
written.
Should there be any confusion generated by the issuance of Proclamation No. 427
and General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed
out, the mere declaration of a state of rebellion cannot diminish or violate
constitutionally protected rights.[60] Indeed, if a state of martial law does not suspend the
operation of the Constitution or automatically suspend the privilege of the writ of habeas
corpus,[61] then it is with more reason that a simple declaration of a state of rebellion

could not bring about these conditions.[62] At any rate, the presidential issuances
themselves call for the suppression of the rebellion with due regard to constitutional
rights.
For the same reasons, apprehensions that the military and police authorities may
resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority
of the Court held that [i]n quelling or suppressing the rebellion, the authorities may only
resort to warrantless arrests of persons suspected of rebellion, as provided under Section
5, Rule 113 of the Rules of Court,[63] if the circumstances so warrant. The warrantless
arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion.
[64]
In other words, a person may be subjected to a warrantless arrest for the crime of
rebellion whether or not the President has declared a state of rebellion, so long as the
requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out the armed
forces and to determine the necessity for the exercise of such power. While the Court
may examine whether the power was exercised within constitutional limits or in a
manner constituting grave abuse of discretion, none of the petitioners here have, by way
of proof, supported their assertion that the President acted without factual basis.[65]
The argument that the declaration of a state of rebellion amounts to a declaration of
martial law and, therefore, is a circumvention of the report requirement, is a leap of
logic. There is no indication that military tribunals have replaced civil courts in the
theater of war or that military authorities have taken over the functions of civil
government. There is no allegation of curtailment of civil or political rights. There is no
indication that the President has exercised judicial and legislative powers. In short, there
is no illustration that the President has attempted to exercise or has exercised martial
law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect
exercise of emergency powers, which exercise depends upon a grant of Congress
pursuant to Section 23 (2), Article VI of the Constitution:
Sec. 23. (1) .
(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.
The petitions do not cite a specific instance where the President has attempted to or
has exercised powers beyond her powers as Chief Executive or as Commander-inChief. The President, in declaring a state of rebellion and in calling out the armed forces,
was merely exercising a wedding of her Chief Executive and Commander-in-Chief

powers. These are purely executive powers, vested on the President by Sections 1 and
18, Article VII, as opposed to the delegated legislative powers contemplated by
Section 23 (2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED.
SO ORDERED.
Carpio, Corona, and Carpio-Morales, JJ., concur.
Davide, Jr., C.J., in the result.
Puno, J., in the result.
Vitug, J., see separate opinion.
Panganiban, J., see separate opinion.
Quisumbing, J., joins J. Panganibans Opinion.
Ynares-Santiago, J., see separate opinion.
Sandoval-Gutierrez, J., please see dissenting opinion.
Austria-Martinez, J., concur in the result.
Callejo, Sr., J., concurs in the separate opinion of J. Panganiban.
Azcuna, J., on official leave.

216. Ex Parte Milligan US case

Ex parte Milligan, 71 U.S. 4 Wall. 2 2 (1866)
Ex parte Milligan
71 U.S. (4 Wall.) 2
Syllabus
1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section
of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into
the cause of commitment, and they have
Page 71 U. S. 3
jurisdiction, except in cases where the privilege of the writ is suspended, to hear and
determine the question whether the party is entitled to be discharged.
2. The usual course of proceeding is for the court, on the application of the prisoner for a
writ of habeas corpus, to issue the writ, and, on its return, to hear and dispose of the
case; but where the cause of imprisonment is fully shown by the petition, the court may,
without issuing the writ, consider and determine whether, upon the facts presented in
the petition, the prisoner, if brought before the court, would be discharged.

3. When the Circuit Court renders a final judgment refusing to discharge the prisoner, he
may bring the case here by writ of error, and, if the judges of the Circuit Court, being
opposed in opinion, can render no judgment, he may have the point upon which the
disagreement happens certified to this tribunal.
4. A petition for a writ of habeas corpus, duly presented, is the institution of a cause on
behalf of the petitioner, and the allowance or refusal of the process, as well as the
subsequent disposition of the prisoner is matter of law, and not of discretion.
5. A person arrested after the passage of the act of March 3d, 1863, "relating to habeas
corpus and regulating judicial proceedings in certain cases," and under the authority of
said act, was entitled to his discharge if not indicted or presented by the grand jury
convened at the first subsequent term of the Circuit or District Court of the United States
for the District.
6. The omission to furnish a list of the persons arrested to the judges of the Circuit or
District Court as provided in the said act did not impair the right of said person, if not
indicted or presented, to his discharge.
7. Military commissions organized during the late civil war, in a State not invaded and
not engaged in rebellion, in which the Federal courts were open, and in the proper and
unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or
sentence for any criminal offence, a citizen who was neither a resident of a rebellious
State nor a prisoner of war, nor a person in the military or naval service. And Congress
could not invest them with any such power.
8. The guaranty of trial by jury contained in the Constitution was intended for a state of
war, as well as a state of peace, and is equally binding upon rulers and people at all
times and under all circumstances.
9. The Federal authority having been unopposed in the State of Indiana, and the Federal
courts open for the trial of offences and the redress of grievances, the usages of war
could not, under the Constitution, afford any sanction for the trial there of a citizen in
civil life not connected with the military or naval service, by a military tribunal, for any
offence whatever.
10. Cases arising in the land or naval forces, or in the militia in time of war or public
danger, are excepted from the necessity of presentment or indictment by a grand jury,
and the right of trial by jury in such cases is subject to the same exception.
Page 71 U. S. 4

11. Neither the President nor Congress nor the Judiciary can disturb any one of the
safeguards of civil liberty incorporated into the Constitution except so far as the right is
given to suspend in certain cases the privilege of the writ of habeas corpus.
12. A citizen not connected with the military service and a resident in a State where the
courts are open and in the proper exercise or their jurisdiction cannot, even when the
privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced
otherwise than by the ordinary courts of law.
13. Suspension of the privilege of the writ of habeas corpus does not suspend the writ
itself. The writ issues as a matter of course, and, on its return, the court decides whether
the applicant is denied the right of proceeding any further.
14. A person who is a resident of a loyal State, where he was arrested, who was never
resident in any State engaged in rebellion, nor connected with the military or naval
service, cannot be regarded as a prisoner of war.
This case came before the court upon a certificate of division from the judges of the
Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.
The case was thus:
An act of Congress -- the Judiciary Act of 1789, [Footnote 1] section 14 -- enacts that the
Circuit Courts of the United States
"Shall have power to issue writs of habeas corpus. And that either of the justices of the
Supreme Court, as well as judges of the District Court, shall have power to grant writs of
habeas corpus for the purpose of an inquiry into the cause of commitment. Provided,"
&c.
Another act -- that of March 3d, 1863, [Footnote 2] "relating to habeas corpus, and
regulating judicial proceedings in certain cases" -- an act passed in the midst of the
Rebellion -- makes various provisions in regard to the subject of it.
The first section authorizes the suspension, during the Rebellion, of the writ of habeas
corpus, throughout the United States, by the President.
Two following sections limited the authority in certain respects.
Page 71 U. S. 5

The second section required that lists of all persons, being citizens of States in which the
administration of the laws had continued unimpaired in the Federal courts, who were
then held, or might thereafter be held, as prisoners of the United States, under the
authority of the President, otherwise than as prisoners of war, should be furnished by the
Secretary of State and Secretary of War to the judges of the Circuit and District Courts.
These lists were to contain the names of all persons, residing within their respective
jurisdictions, charged with violation of national law. And it was required, in cases where
the grand jury in attendance upon any of these courts should terminate its session
without proceeding by indictment or otherwise against any prisoner named in the list,
that the judge of the court should forthwith make an order that such prisoner, desiring a
discharge, should be brought before him or the court to be discharged, on entering into
recognizance, if required, to keep the peace and for good behavior, or to appear, as the
court might direct, to be further dealt with according to law. Every officer of the United
States having custody of such prisoners was required to obey and execute the
judge's order, under penalty, for refusal or delay, of fine and imprisonment.
The third section enacts, in case lists of persons other than prisoners of war then held in
confinement or thereafter arrested, should not be furnished within twenty days after the
passage of the act, or, in cases of subsequent arrest, within twenty days after the time of
arrest, that any citizen, after the termination of a session of the grand jury without
indictment or presentment, might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any person so imprisoned, on the terms
and conditions prescribed in the second section.
This act made it the duty of the District Attorney of the United States to attend
examinations on petitions for discharge.
By proclamation, [Footnote 3] dated the 15th September following,
Page 71 U. S. 6
the President, reciting this statute, suspended the privilege of the writ in the cases
where, by his authority, military, naval, and civil officers of the United States
"hold persons in their custody either as prisoners of war, spies, or aiders and abettors of
the enemy, . . . or belonging to the land or naval force of the United States, or otherwise
amenable to military law, or the rules and articles of war, or the rules or regulations
prescribed for the military or naval services, by authority of the President, or for resisting
a draft, or for any other offence against the military or naval service."

With both these statutes and this proclamation in force, Lamdin P. Milligan, a citizen of
the United States, and a resident and citizen of the State of Indiana, was arrested on the
5th day of October, 1864, at his home in the said State, by the order of Brevet MajorGeneral Hovey, military commandant of the District of Indiana, and by the same
authority confined in a military prison at or near Indianapolis, the capital of the State. On
the 21st day of the same month, he was placed on trial before a "military commission,"
convened at Indianapolis, by order of the said General, upon the following charges,
preferred by Major Burnett, Judge Advocate of the Northwestern Military Department,
namely:
1. "Conspiracy against the Government of the United States;"
2. "Affording aid and comfort to rebels against the authority of the United States;"
3. "Inciting insurrection;"
4. "Disloyal practices;" and
5. "Violation of the laws of war."
Under each of these charges, there were various specifications. The substance of them
was joining and aiding, at different times between October, 1863, and August, 1864, a
secret society known as the Order of American Knights or Sons of Liberty, for the
purpose of overthrowing the Government and duly constituted authorities of the United
States; holding communication with the enemy; conspiring to seize munitions of war
stored in the arsenals; to liberate
Page 71 U. S. 7
prisoners of war, &c.; resisting the draft, &c.; . . .
"at a period of war and armed rebellion against the authority of the United States, at or
near Indianapolis [and various other places specified] in Indiana, a State within the
military lines of the army of the United States and the theatre of military operations, and
which had been and was constantly threatened to be invaded by the enemy."
These were amplified and stated with various circumstances.
An objection by him to the authority of the commission to try him being overruled,
Milligan was found guilty on all the charges, and sentenced to suffer death by hanging,
and this sentence, having been approved, he was ordered to be executed on Friday, the
19th of May, 1865.

On the 10th of that same May, 1865, Milligan filed his petition in the Circuit Court of the
United States for the District of Indiana, by which, or by the documents appended to
which as exhibits, the above facts appeared. These exhibits consisted of the order for the
commission; the charges and specifications; the findings and sentence of the court, with
a statement of the fact that the sentence was approved by the President of the United
States, who directed that it should "be carried into execution without delay;" all "by order
of the Secretary of War."
The petition set forth the additional fact that, while the petitioner was held and detained,
as already mentioned, in military custody (and more than twenty days after his arrest), a
grand jury of the Circuit Court of the United States for the District of Indiana was
convened at Indianapolis, his said place of confinement, and duly empaneled, charged,
and sworn for said district, held its sittings, and finally adjourned without having found
any bill of indictment, or made any presentment whatever against him. That at no time
had he been in the military service of the United States, or in any way connected with
the land or naval force, or the militia in actual service; nor within the limits of any State
whose citizens were engaged in rebellion against the United States, at any time during
the war, but, during all the time aforesaid, and for twenty years last past, he had been
an
Page 71 U. S. 8
inhabitant, resident, and citizen of Indiana. And so that it had been
"wholly out of his power to have acquired belligerent rights or to have placed himself in
such relation to the government as to have enabled him to violate the laws of war."
The record, in stating who appeared in the Circuit Court, ran thus:
"Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before
the judges aforesaid, comes Jonathan W. Gorden, Esq., of counsel for said Milligan, and
files here, in open court, the petition of said Milligan, to be discharged.. . . . At the same
time comes John Hanna, Esquire, the attorney prosecuting the pleas of the United States
in this behalf. And thereupon, by agreement, this application is submitted to the court,
and day is given, &c."
The prayer of the petition was that, under the already mentioned act of Congress of
March 3d, 1863, the petitioner might be brought before the court and either turned over
to the proper civil tribunal to be proceeded with according to the law of the land or
discharged from custody altogether.

At the hearing of the petition in the Circuit Court, the opinions of the judges were
opposed upon the following questions:
I. On the facts stated in the petition and exhibits, ought a writ of habeas corpus to be
issued according to the prayer of said petitioner?
II. On the facts stated in the petition and exhibits, ought the said Milligan to be
discharged from custody as in said petition prayed?
III. Whether, upon the facts stated in the petition and exhibits, the military commission
had jurisdiction legally to try and sentence said Milligan in manner and form, as in said
petition and exhibit is stated?
And these questions were certified to this court under the provisions of the act of
Congress of April 29th, 1802, [Footnote 4] an act
Page 71 U. S. 9
which provides
"that whenever any question shall occur before a Circuit Court upon which the opinions
of the judges shall be opposed, the point upon which the disagreement shall happen
shall, during the same term, upon the request of either party or their counsel, be stated
under the direction of the judges and certified under the seal of the court to the Supreme
Court, at their next session to be held thereafter, and shall by the said court
be finally decided, and the decision of the Supreme Court and their order in the premises
shall be remitted to the Circuit Court and be there entered of record, and shall have
effect according to the nature of the said judgment and order; Provided, That nothing
herein contained shall prevent the cause from proceeding if, in the opinion of the court,
further proceedings can be had without prejudice to the merits."
The three several questions above mentioned were argued at the last term. And along
with them, an additional question raised in this court, namely:
IV. A question of jurisdiction, as -- 1. Whether the Circuit Court had jurisdiction to hear
the case there presented? -- 2. Whether the case sent up here by certificate of division
was so sent up in conformity with the intention of the act of 1802? in other words,
whether this court had jurisdiction of the questions raised by the certificate?
Page 71 U. S. 107
Mr. Justice DAVIS delivered the opinion of the court.

On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Circuit
Court of the United States for the District of Indiana to be discharged from an alleged
unlawful imprisonment. The case made by the petition is this: Milligan is a citizen of the
United States; has lived for twenty years in Indiana, and, at the time of the grievances
complained of, was not, and never had been, in the military or naval service of the
United States. On the 5th day of October, 1864, while at home, he was arrested by order
of General Alvin P. Hovey, commanding the military district of Indiana, and has ever since
been kept in close confinement.
On the 21st day of October, 1864, he was brought before a military commission,
convened at Indianapolis by order of General Hovey, tried on certain charges and
specifications, found guilty, and sentenced to be hanged, and the sentence ordered to be
executed on Friday, the 19th day of May, 1865.
On the 2d day of January, 1865, after the proceedings of the military commission were at
an end, the Circuit Court of the United States for Indiana met at Indianapolis and
empaneled a grand jury, who were charged to inquire
Page 71 U. S. 108
whether the laws of the United States had been violated. and, if so, to make
presentments. The court adjourned on the 27th day of January, having, prior thereto,
discharged from further service the grand jury, who did not find any bill of indictment or
make any presentment against Milligan for any offence whatever, and, in fact, since his
imprisonment, no bill of indictment has been found or presentment made against him by
any grand jury of the United States.
Milligan insists that said military commission had no jurisdiction to try him upon the
charges preferred, or upon any charges whatever, because he was a citizen of the United
States and the State of Indiana, and had not been, since the commencement of the late
Rebellion, a resident of any of the States whose citizens were arrayed against the
government, and that the right of trial by jury was guaranteed to him by the Constitution
of the United States.
The prayer of the petition was that, under the act of Congress approved March 3d, 1863,
entitled, "An act relating to habeas corpus and regulating judicial proceedings in certain
cases," he may be brought before the court and either turned over to the proper civil
tribunal to be proceeded against according to the law of the land or discharged from
custody altogether.

With the petition were filed the order for the commission, the charges and specifications,
the findings of the court, with the order of the War Department reciting that the sentence
was approved by the President of the United States, and directing that it be carried into
execution without delay. The petition was presented and filed in open court by the
counsel for Milligan; at the same time, the District Attorney of the United States for
Indiana appeared and, by the agreement of counsel, the application was submitted to
the court. The opinions of the judges of the Circuit Court were opposed on three
questions, which are certified to the Supreme Court:
1st. "On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be
issued?"
Page 71 U. S. 109
2d. "On the facts stated in said petition and exhibits, ought the said Lambdin P. Milligan
to be discharged from custody as in said petition prayed?"
3d. "Whether, upon the facts stated in said petition and exhibits, the military commission
mentioned therein had jurisdiction legally to try and sentence said Milligan in manner
and form as in said petition and exhibits is stated?"
The importance of the main question presented by this record cannot be overstated, for
it involves the very framework of the government and the fundamental principles of
American liberty.
During the late wicked Rebellion, the temper of the times did not allow that calmness in
deliberation and discussion so necessary to a correct conclusion of a purely judicial
question. Then, considerations of safety were mingled with the exercise of power, and
feelings and interests prevailed which are happily terminated. Now that the public safety
is assured, this question, as well as all others, can be discussed and decided without
passion or the admixture of any element not required to form a legal judgment. We
approach the investigation of this case fully sensible of the magnitude of the inquiry and
the necessity of full and cautious deliberation.
But we are met with a preliminary objection. It is insisted that the Circuit Court of Indiana
had no authority to certify these questions, and that we are without jurisdiction to hear
and determine them.
The sixth section of the "Act to amend the judicial system of the United States,"
approved April 29, 1802, declares

"that whenever any question shall occur before a Circuit Court upon which the opinions
of the judges shall be opposed, the point upon which the disagreement shall happen
shall, during the same term, upon the request of either party or their counsel, be stated
under the direction of the judges and certified under the seal of the court to the Supreme
Court at their next session to be held thereafter, and shall by the said court be finally
decided, and the decision of the
Page 71 U. S. 110
Supreme Court and their order in the premises shall be remitted to the Circuit Court and
be there entered of record, and shall have effect according to the nature of the said
judgment and order: Provided, That nothing herein contained shall prevent the cause
from proceeding, if, in the opinion of the court, further proceedings can be had without
prejudice to the merits."
It is under this provision of law that a Circuit Court has authority to certify any question
to the Supreme Court for adjudication. The inquiry, therefore, is, whether the case of
Milligan is brought within its terms.
It was admitted at the bar that the Circuit Court had jurisdiction to entertain the
application for the writ of habeas corpus and to hear and determine it, and it could not
be denied, for the power is expressly given in the 14th section of the Judiciary Act of
1789, as well as in the later act of 1863. Chief Justice Marshall, in Bollman's case,
[Footnote 5] construed this branch of the Judiciary Act to authorize the courts as well as
the judges to issue the writ for the purpose of inquiring into the cause of the
commitment, and this construction has never been departed from. But it is maintained
with earnestness and ability that a certificate of division of opinion can occur only in
a cause, and that the proceeding by a party moving for a writ of habeas corpus does not
become a cause until after the writ has been issued and a return made.
Independently of the provisions of the act of Congress of March 3, 1863, relating to
habeas corpus, on which the petitioner bases his claim for relief and which we will
presently consider, can this position be sustained?
It is true that it is usual for a court, on application for a writ of habeas corpus, to issue
the writ, and, on the return, to dispose of the case, but the court can elect to waive the
issuing of the writ and consider whether, upon the facts presented in the petition, the
prisoner, if brought before it, could be discharged. One of the very points on which the
case of Tobias Watkins, reported in 3 Peters, [Footnote 6] turned was
Page 71 U. S. 111

whether, if the writ was issued, the petitioner would be remanded upon the case which
he had made.
The Chief Justice, in delivering the opinion of the court, said:
"The cause of imprisonment is shown as fully by the petitioner as it could appear on the
return of the writ; consequently, the writ ought not to be awarded if the court is satisfied
that the prisoner would be remanded to prison."
The judges of the Circuit Court of Indiana were therefore warranted by an express
decision of this court in refusing the writ if satisfied that the prisoner. on his own
showing. was rightfully detained.
But, it is contended, if they differed about the lawfulness of the imprisonment, and could
render no judgment, the prisoner is remediless, and cannot have the disputed question
certified under the act of 1802. His remedy is complete by writ of error or appeal, if the
court renders a final judgment refusing to discharge him; but if he should be so
unfortunate as to be placed in the predicament of having the court divided on the
question whether he should live or die, he is hopeless, and without remedy. He wishes
the vital question settled not by a single judge at his chambers, but by the highest
tribunal known to the Constitution, and yet the privilege is denied him because the
Circuit Court consists of two judges, instead of one.
Such a result was not in the contemplation of the legislature of 1802, and the language
used by it cannot be construed to mean any such thing. The clause under consideration
was introduced to further the ends of justice by obtaining a speedy settlement of
important questions where the judges might be opposed in opinion.
The act of 1802 so changed the judicial system that the Circuit Court, instead of three,
was composed of two judges, and, without this provision or a kindred one, if the judges
differed, the difference would remain, the question be unsettled, and justice denied. The
decisions of this court upon the provisions of this section have been numerous. In United
States v. Daniel, [Footnote 7] the court, in holding that a division
Page 71 U. S. 112
of the judges on a motion for a new trial could not be certified, say: "That the question
must be one which arises in a cause depending before the court relative to a proceeding
belonging to the cause." Testing Milligan's case by this rule of law, is it not apparent that
it is rightfully here, and that we are compelled to answer the questions on which the
judges below were opposed in opinion? If, in the sense of the law, the proceeding for the

writ of habeas corpus was the "cause" of the party applying for it, then it is evident that
the "cause" was pending before the court, and that the questions certified arose out of it,
belonged to it, and were matters of right, and not of discretion.
But it is argued that the proceeding does not ripen into a cause until there are two
parties to it.
This we deny. It was the cause of Milligan when the petition was presented to the Circuit
Court. It would have been thecause of both parties if the court had issued the writ and
brought those who held Milligan in custody before it. Webster defines the word "cause"
thus: "A suit or action in court; any legal process which a party institutes to obtain his
demand, or by which he seeks his right, or supposed right" -- and he says,
"this is a legal, scriptural, and popular use of the word, coinciding nearly with case,
from cado, and action, from ago, to urge and drive."
In any legal sense, action, suit, and cause, are convertible terms. Milligan supposed he
had a right to test the validity of his trial and sentence, and the proceeding which he set
in operation for that purpose was his "cause" or "suit." It was the only one by which he
could recover his liberty. He was powerless to do more; he could neither instruct the
judges nor control their action, and should not suffer, because, without fault of his, they
were unable to render a judgment. But the true meaning to the term "suit" has been
given by this court. One of the questions in Weston v. City Council of Charleston,
[Footnote 8] was whether a writ of prohibition was a suit, and Chief Justice Marshall says:
"The
Page 71 U. S. 113
term is certainly a comprehensive one, and is understood to apply to any proceeding in a
court of justice by which an individual pursues that remedy which the law affords him."
Certainly Milligan pursued the only remedy which the law afforded him.
Again, in Cohens v. Virginia, [Footnote 9] he says: "In law language, a suit is the
prosecution of some demand in a court of justice." Also,
"To commence a suit is to demand something by the institution of process in a court of
justice, and to prosecute the suit is to continue that demand."
When Milligan demanded his release by the proceeding relating to habeas corpus, he
commenced a suit, and he has since prosecuted it in all the ways known to the law. One

of the questions in Holmes v. Jennison, et al., [Footnote 10] was whether, under the 25th
section of the Judiciary Act, a proceeding for a writ of habeas corpus was a "suit." Chief
Justice Taney held that,
"if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal
remedy. It is his suit in court to recover his liberty."
There was much diversity of opinion on another ground of jurisdiction, but that, in the
sense of the 25th section of the Judiciary Act, the proceeding by habeas corpus was a
suit was not controverted by any except Baldwin, Justice, and he thought that "suit" and
"cause," as used in the section, mean the same thing.
The court do not say that a return must be made and the parties appear and begin to try
the case before it is a suit. When the petition is filed and the writ prayed for, it is a suit -the suit of the party making the application. If it is a suit under the 25th section of the
Judiciary Act when the proceedings are begun, it is, by all the analogies of the law,
equally a suit under the 6th section of the act of 1802.
But it is argued that there must be two parties to the suit, because the point is to be
stated upon the request of "either party or their counsel."
Such a literal and technical construction would defeat the very purpose the legislature
had in view, which was to enable
Page 71 U. S. 114
any party to bring the case here when the point in controversy was a matter of right, and
not of discretion, and the words "either party," in order to prevent a failure of justice,
must be construed as words of enlargement, and not of restriction. Although this case is
here ex parte, it was not considered by the court below without notice having been given
to the party supposed to have an interest in the detention of the prisoner. The
statements of the record show that this is not only a fair, but conclusive, inference. When
the counsel for Milligan presented to the court the petition for the writ of habeas corpus,
Mr. Hanna, the District Attorney for Indiana, also appeared, and, by agreement, the
application was submitted to the court, who took the case under advisement, and on the
next day announced their inability to agree, and made the certificate. It is clear that Mr.
Hanna did not represent the petitioner, and why is his appearance entered? It admits of
no other solution than this -- that he was informed of the application, and appeared on
behalf of the government to contest it. The government was the prosecutor of Milligan,
who claimed that his imprisonment was illegal and sought, in the only way he could, to
recover his liberty. The case was a grave one, and the court unquestionably directed that

the law officer of the government should be informed of it. He very properly appeared,
and, as the facts were uncontroverted and the difficulty was in the application of the law,
there was no useful purpose to be obtained in issuing the writ. The cause was therefore
submitted to the court for their consideration and determination.
But Milligan claimed his discharge from custody by virtue of the act of Congress "relating
to habeas corpus, and regulating judicial proceedings in certain cases," approved March
3d, 1863. Did that act confer jurisdiction on the Circuit Court of Indiana to hear this case?
In interpreting a law, the motives which must have operated with the legislature in
passing it are proper to be considered. This law was passed in a time of great national
peril, when our heritage of free government was in danger.
Page 71 U. S. 115
An armed rebellion against the national authority, of greater proportions than history
affords an example of, was raging, and the public safety required that the privilege of the
writ of habeas corpus should be suspended. The President had practically suspended it,
and detained suspected persons in custody without trial, but his authority to do this was
questioned. It was claimed that Congress alone could exercise this power, and that the
legislature, and not the President, should judge of the political considerations on which
the right to suspend it rested. The privilege of this great writ had never before been
withheld from the citizen, and, as the exigence of the times demanded immediate action,
it was of the highest importance that the lawfulness of the suspension should be fully
established. It was under these circumstances, which were such as to arrest the
attention of the country, that this law was passed. The President was authorized by it to
suspend the privilege of the writ of habeas corpus whenever, in his judgment, the public
safety required, and he did, by proclamation, bearing date the 15th of September, 1863,
reciting, among other things, the authority of this statute, suspend it. The suspension of
the writ does not authorize the arrest of anyone, but simply denies to one arrested the
privilege of this writ in order to obtain his liberty.
It is proper therefore to inquire under what circumstances the courts could rightfully
refuse to grant this writ, and when the citizen was at liberty to invoke its aid.
The second and third sections of the law are explicit on these points. The language used
is plain and direct, and the meaning of the Congress cannot be mistaken. The public
safety demanded, if the President thought proper to arrest a suspected person, that he
should not be required to give the cause of his detention on return to a writ of habeas
corpus. But it was not contemplated that such person should be detained in custody
beyond a certain fixed period unless certain judicial proceedings, known to the common

law, were commenced against him. The Secretaries of State and War were directed to
furnish to the judges of the courts of the
Page 71 U. S. 116
United States a list of the names of all parties, not prisoners of war, resident in their
respective jurisdictions, who then were or afterwards should be held in custody by the
authority of the President, and who were citizens of states in which the administration of
the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand
jury of the district convened and adjourned, and did not indict or present one of the
persons thus named, he was entitled to his discharge, and it was the duty of the judge of
the court to order him brought before him to be discharged if he desired it. The refusal or
omission to furnish the list could not operate to the injury of anyone who was not
indicted or presented by the grand jury, for, if twenty days had elapsed from the time of
his arrest and the termination of the session of the grand jury, he was equally entitled to
his discharge as if the list were furnished, and any credible person, on petition verified by
affidavit, could obtain the judge's order for that purpose.
Milligan, in his application to be released from imprisonment, averred the existence of
every fact necessary under the terms of this law to give the Circuit Court of Indiana
jurisdiction. If he was detained in custody by the order of the President otherwise than as
a prisoner of war, if he was a citizen of Indiana and had never been in the military or
naval service, and the grand jury of the district had met, after he had been arrested, for
a period of twenty days, and adjourned without taking any proceedings against him, then
the court had the right to entertain his petition and determine the lawfulness of his
imprisonment. Because the word "court" is not found in the body of the second section, it
was argued at the bar that the application should have been made to a judge of the
court, and not to the court itself; but this is not so, for power is expressly conferred in the
last proviso of the section on the court equally with a judge of it to discharge from
imprisonment. It was the manifest design of Congress to secure a certain remedy by
which anyone deprived of liberty could obtain it if there was a judicial failure to find
cause of offence against him. Courts are
Page 71 U. S. 117
not, always in session, and can adjourn on the discharge of the grand jury, and before
those who are in confinement could take proper steps to procure their liberation. To
provide for this contingency, authority was given to the judges out of court to grant relief
to any party who could show that, under the law, he should be no longer restrained of his
liberty.

It was insisted that Milligan's case was defective because it did not state that the list was
furnished to the judges, and therefore it was impossible to say under which section of the
act it was presented.
It is not easy to see how this omission could affect the question of jurisdiction. Milligan
could not know that the list was furnished, unless the judges volunteered to tell him, for
the law did not require that any record should be made of it or anybody but the judges
informed of it. Why aver the fact when the truth of the matter was apparent to the court
without an averment? How can Milligan be harmed by the absence of the averment when
he states that he was under arrest for more than sixty days before the court and grand
jury, which should have considered his case, met at Indianapolis? It is apparent therefore
that, under the Habeas Corpus Act of 1863, the Circuit Court of Indiana had complete
jurisdiction to adjudicate upon this case, and, if the judges could not agree on questions
vital to the progress of the cause, they had the authority (as we have shown in a
previous part of this opinion), and it was their duty, to certify those questions of
disagreement to this court for final decision. It was argued that a final decision on the
questions presented ought not to be made, because the parties who were directly
concerned in the arrest and detention of Milligan were not before the court, and their
rights might be prejudiced by the answer which should be given to those questions. But
this court cannot know what return will be made to the writ of habeas corpus when
issued, and it is very clear that no one is concluded upon any question that may be
raised to that return. In the sense of the law of 1802 which authorized a certificate of
division, a final decision
Page 71 U. S. 118
means final upon the points certified, final upon the court below, so that it is estopped
from any adverse ruling in all the subsequent proceedings of the cause.
But it is said that this case is ended, as the presumption is that Milligan was hanged in
pursuance of the order of the President.
Although we have no judicial information on the subject, yet the inference is that he is
alive, for otherwise learned counsel would not appear for him and urge this court to
decide his case. It can never be, in this country of written constitution and laws, with a
judicial department to interpret them, that any chief magistrate would be so far forgetful
of his duty as to order the execution of a man who denied the jurisdiction that tried and
convicted him after his case was before Federal judges with power to decide it, who,
being unable to agree on the grave questions involved, had, according to known law,
sent it to the Supreme Court of the United States for decision. But even the suggestion is
injurious to the Executive, and we dismiss it from further consideration. There is

therefore nothing to hinder this court from an investigation of the merits of this
controversy.
The controlling question in the case is this: upon the facts stated in Milligan's petition
and the exhibits filed, had the military commission mentioned in it jurisdiction legally to
try and sentence him? Milligan, not a resident of one of the rebellious states or a prisoner
of war, but a citizen of Indiana for twenty years past and never in the military or naval
service, is, while at his home, arrested by the military power of the United States,
imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and
sentenced to be hanged by a military commission, organized under the direction of the
military commander of the military district of Indiana. Had this tribunal the legal power
and authority to try and punish this man?
No graver question was ever considered by this court, nor one which more nearly
concerns the rights of the whole
Page 71 U. S. 119
people, for it is the birthright of every American citizen when charged with crime to be
tried and punished according to law. The power of punishment is alone through the
means which the laws have provided for that purpose, and, if they are ineffectual, there
is an immunity from punishment, no matter how great an offender the individual may be
or how much his crimes may have shocked the sense of justice of the country or
endangered its safety. By the protection of the law, human rights are secured; withdraw
that protection and they are at the mercy of wicked rulers or the clamor of an excited
people. If there was law to justify this military trial, it is not our province to interfere; if
there was not, it is our duty to declare the nullity of the whole proceedings. The decision
of this question does not depend on argument or judicial precedents, numerous and
highly illustrative as they are. These precedents inform us of the extent of the struggle to
preserve liberty and to relieve those in civil life from military trials. The founders of our
government were familiar with the history of that struggle, and secured in a written
constitution every right which the people had wrested from power during a contest of
ages. By that Constitution and the laws authorized by it, this question must be
determined. The provisions of that instrument on the administration of criminal justice
are too plain and direct to leave room for misconstruction or doubt of their true meaning.
Those applicable to this case are found in that clause of the original Constitution which
says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in
the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to
be secure in person and effects against unreasonable search and seizure, and directs

that a judicial warrant shall not issue "without proof of probable cause supported by oath
or affirmation." The fifth declares
"that no person shall be held to answer for a capital or otherwise infamous crime unless
on presentment by a grand jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger, nor be deprived
Page 71 U. S. 120
of life, liberty, or property without due process of law."
And the sixth guarantees the right of trial by jury, in such manner and with such
regulations that, with upright judges, impartial juries, and an able bar, the innocent will
be saved and the guilty punished. It is in these words:
"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial
by an impartial jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence."
These securities for personal liberty thus embodied were such as wisdom and experience
had demonstrated to be necessary for the protection of those accused of crime. And so
strong was the sense of the country of their importance, and so jealous were the people
that these rights, highly prized, might be denied them by implication, that, when the
original Constitution was proposed for adoption, it encountered severe opposition, and,
but for the belief that it would be so amended as to embrace them, it would never have
been ratified.
Time has proven the discernment of our ancestors, for even these provisions, expressed
in such plain English words that it would seem the ingenuity of man could not evade
them, are now, after the lapse of more than seventy years, sought to be avoided. Those
great and good men foresaw that troublous times would arise when rulers and people
would become restive under restraint, and seek by sharp and decisive measures to
accomplish ends deemed just and proper, and that the principles of constitutional liberty
would be in peril unless established by irrepealable law. The history of the world had
taught them that what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all times

Page 71 U. S. 121
and under all circumstances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government. Such a doctrine leads directly to anarchy or
despotism, but the theory of necessity on which it is based is false, for the government,
within the Constitution, has all the powers granted to it which are necessary to preserve
its existence, as has been happily proved by the result of the great effort to throw off its
just authority.
Have any of the rights guaranteed by the Constitution been violated in the case of
Milligan?, and, if so, what are they?
Every trial involves the exercise of judicial power, and from what source did the military
commission that tried him derive their authority? Certainly no part of judicial power of
the country was conferred on them, because the Constitution expressly vests it "in one
supreme court and such inferior courts as the Congress may from time to time ordain
and establish," and it is not pretended that the commission was a court ordained and
established by Congress. They cannot justify on the mandate of the President, because
he is controlled by law, and has his appropriate sphere of duty, which is to execute, not
to make, the laws, and there is "no unwritten criminal code to which resort can be had as
a source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws and usages of war."
It can serve no useful purpose to inquire what those laws and usages are, whence they
originated, where found, and on whom they operate; they can never be applied to
citizens in states which have upheld the authority of the government, and where the
courts are open and their process unobstructed. This court has judicial knowledge that,
in Indiana, the Federal authority was always unopposed, and its courts always open to
hear criminal accusations and redress grievances, and no usage of war could sanction a
military trial there for any offence whatever of a citizen in civil life in nowise
Page 71 U. S. 122
connected with the military service. Congress could grant no such power, and, to the
honor of our national legislature be it said, it has never been provoked by the state of the
country even to attempt its exercise. One of the plainest constitutional provisions was
therefore infringed when Milligan was tried by a court not ordained and established by
Congress and not composed of judges appointed during good behavior.

Why was he not delivered to the Circuit Court of Indiana to be proceeded against
according to law? No reason of necessity could be urged against it, because Congress
had declared penalties against the offences charged, provided for their punishment, and
directed that court to hear and determine them. And soon after this military tribunal was
ended, the Circuit Court met, peacefully transacted its business, and adjourned. It
needed no bayonets to protect it, and required no military aid to execute its judgments.
It was held in a state, eminently distinguished for patriotism, by judges commissioned
during the Rebellion, who were provided with juries, upright, intelligent, and selected by
a marshal appointed by the President. The government had no right to conclude that
Milligan, if guilty, would not receive in that court merited punishment, for its records
disclose that it was constantly engaged in the trial of similar offences, and was never
interrupted in its administration of criminal justice. If it was dangerous, in the distracted
condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired
against the government, afforded aid and comfort to rebels, and incited the people to
insurrection," the law said arrest him, confine him closely, render him powerless to do
further mischief, and then present his case to the grand jury of the district, with proofs of
his guilt, and, if indicted, try him according to the course of the common law. If this had
been done, the Constitution would have been vindicated, the law of 1863 enforced, and
the securities for personal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was denied a trial by jury. The
great minds of the country
Page 71 U. S. 123
have differed on the correct interpretation to be given to various provisions of the
Federal Constitution, and judicial decision has been often invoked to settle their true
meaning; but, until recently, no one ever doubted that the right of trial by jury was
fortified in the organic law against the power of attack. It is now assailed, but if ideas can
be expressed in words and language has any meaning, this right -- one of the most
valuable in a free country -- is preserved to everyone accused of crime who is not
attached to the army or navy or militia in actual service. The sixth amendment affirms
that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury," language broad enough to embrace all persons and
cases; but the fifth, recognizing the necessity of an indictment or presentment before
anyone can be held to answer for high crimes, "excepts cases arising in the land or naval
forces, or in the militia, when in actual service, in time of war or public danger," and the
framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth
amendment to those persons who were subject to indictment or presentment in the fifth.

The discipline necessary to the efficiency of the army and navy required other and
swifter modes of trial than are furnished by the common law courts, and, in pursuance of
the power conferred by the Constitution, Congress has declared the kinds of trial, and
the manner in which they shall be conducted, for offences committed while the party is
in the military or naval service. Everyone connected with these branches of the public
service is amenable to the jurisdiction which Congress has created for their government,
and, while thus serving, surrenders his right to be tried by the civil courts. All other
persons, citizens of states where the courts are open, if charged with crime, are
guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle,
underlying the whole administration of criminal justice; it is not held by sufferance, and
cannot be frittered away on any plea of state or political necessity. When peace prevails,
and the authority of the government is undisputed,
Page 71 U. S. 124
there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of
trial are never neglected, and no one wishes it otherwise; but if society is disturbed by
civil commotion -- if the passions of men are aroused and the restraints of law weakened,
if not disregarded -- these safeguards need, and should receive, the watchful care of
those intrusted with the guardianship of the Constitution and laws. In no other way can
we transmit to posterity unimpaired the blessings of liberty, consecrated by the
sacrifices of the Revolution.
It is claimed that martial law covers with its broad mantle the proceedings of this military
commission. The proposition is this: that, in a time of war, the commander of an armed
force (if, in his opinion, the exigencies of the country demand it, and of which he is to
judge) has the power, within the lines of his military district, to suspend all civil rights
and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in
the exercise of his lawful authority, cannot be restrained except by his superior officer or
the President of the United States.
If this position is sound to the extent claimed, then, when war exists, foreign or domestic,
and the country is subdivided into military departments for mere convenience, the
commander of one of them can, if he chooses, within his limits, on the plea of necessity,
with the approval of the Executive, substitute military force for and to the exclusion of
the laws, and punish all persons as he thinks right and proper, without fixed or certain
rules.
The statement of this proposition shows its importance, for, if true, republican
government is a failure, and there is an end of liberty regulated by law. Martial law
established on such a basis destroys every guarantee of the Constitution, and effectually

renders the "military independent of and superior to the civil power" -- the attempt to do
which by the King of Great Britain was deemed by our fathers such an offence that they
assigned it to the world as one of the causes which impelled them to declare their
independence. Civil liberty and this kind of martial law cannot endure
Page 71 U. S. 125
together; the antagonism is irreconcilable, and, in the conflict, one or the other must
perish.
This nation, as experience has proved, cannot always remain at peace, and has no right
to expect that it will always have wise and humane rulers sincerely attached to the
principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and
contempt of law, may fill the place once occupied by Washington and Lincoln, and if this
right is conceded, and the calamities of war again befall us, the dangers to human liberty
are frightful to contemplate. If our fathers had failed to provide for just such a
contingency, they would have been false to the trust reposed in them. They knew -- the
history of the world told them -- the nation they were founding, be its existence short or
long, would be involved in war; how often or how long continued human foresight could
not tell, and that unlimited power, wherever lodged at such a time, was especially
hazardous to freemen. For this and other equally weighty reasons, they secured the
inheritance they had fought to maintain by incorporating in a written constitution the
safeguards which time had proved were essential to its preservation. Not one of these
safeguards can the President or Congress or the Judiciary disturb, except the one
concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis like the one we
have just passed through, there should be a power somewhere of suspending the writ of
habeas corpus. In every war, there are men of previously good character wicked enough
to counsel their fellow-citizens to resist the measures deemed necessary by a good
government to sustain its just authority and overthrow its enemies, and their influence
may lead to dangerous combinations. In the emergency of the times, an immediate
public investigation according to law may not be possible, and yet the period to the
country may be too imminent to suffer such persons to go at large. Unquestionably,
there is then an exigency which demands that the government, if it should see fit in the
exercise of a proper discretion to make arrests, should not be required to produce the
persons arrested
Page 71 U. S. 126

in answer to a writ of habeas corpus. The Constitution goes no further. It does not say,
after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by
the course of the common law; if it had intended this result, it was easy, by the use of
direct words, to have accomplished it. The illustrious men who framed that instrument
were guarding the foundations of civil liberty against the abuses of unlimited power; they
were full of wisdom, and the lessons of history informed them that a trial by an
established court, assisted by an impartial jury, was the only sure way of protecting the
citizen against oppression and wrong. Knowing this, they limited the suspension to one
great right, and left the rest to remain forever inviolable. But it is insisted that the safety
of the country in time of war demands that this broad claim for martial law shall be
sustained. If this were true, it could be well said that a country, preserved at the sacrifice
of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is
not so.
It will be borne in mind that this is not a question of the power to proclaim martial law
when war exists in a community and the courts and civil authorities are overthrown. Nor
is it a question what rule a military commander, at the head of his army, can impose on
states in rebellion to cripple their resources and quell the insurrection. The jurisdiction
claimed is much more extensive. The necessities of the service during the late Rebellion
required that the loyal states should be placed within the limits of certain military
districts and commanders appointed in them, and it is urged that this, in a military
sense, constituted them the theater of military operations, and as, in this case, Indiana
had been and was again threatened with invasion by the enemy, the occasion was
furnished to establish martial law. The conclusion does not follow from the premises. If
armies were collected in Indiana, they were to be employed in another locality, where
the laws were obstructed and the national authority disputed. On her soil there was no
hostile foot; if once invaded, that invasion was at an end, and, with
Page 71 U. S. 127
it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The
necessity must be actual and present, the invasion real, such as effectually closes the
courts and deposes the civil administration.
It is difficult to see how the safety for the country required martial law in Indiana. If any
of her citizens were plotting treason, the power of arrest could secure them until the
government was prepared for their trial, when the courts were open and ready to try
them. It was as easy to protect witnesses before a civil as a military tribunal, and as
there could be no wish to convict except on sufficient legal evidence, surely an ordained

and establish court was better able to judge of this than a military tribunal composed of
gentlemen not trained to the profession of the law.
It follows from what has been said on this subject that there are occasions when martial
rule can be properly applied. If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice according to law, then, on the
theatre of active military operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the
army and society, and as no power is left but the military, it is allowed to govern by
martial rule until the laws can have their free course. As necessity creates the rule, so it
limits its duration, for, if this government is continued after the courts are reinstated, it is
a gross usurpation of power. Martial rule can never exist where the courts are open and
in the proper and unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war. Because, during the late Rebellion, it could have been enforced in
Virginia, where the national authority was overturned and the courts driven out, it does
not follow that it should obtain in Indiana, where that authority was never disputed and
justice was always administered. And so, in the case of a foreign invasion, martial rule
may become a necessity in one state when, in another, it would be "mere lawless
violence."
Page 71 U. S. 128
We are not without precedents in English and American history illustrating our views of
this question, but it is hardly necessary to make particular reference to them.
From the first year of the reign of Edward the Third, when the Parliament of England
reversed the attainder of the Earl of Lancaster because he could have been tried by the
courts of the realm, and declared
"that, in time of peace, no man ought to be adjudged to death for treason or any other
offence without being arraigned and held to answer, and that regularly when the king's
courts are open it is a time of peace in judgment of law,"
down to the present day, martial law, as claimed in this case, has been condemned by all
respectable English jurists as contrary to the fundamental laws of the land and
subversive of the liberty of the subject.
During the present century, an instructive debate on this question occurred in
Parliament, occasioned by the trial and conviction by court-martial, at Demerara, of the
Rev. John Smith, a missionary to the negroes, on the alleged ground of aiding and
abetting a formidable rebellion in that colony. Those eminent statesmen Lord Brougham

and Sir James Mackintosh participated in that debate, and denounced the trial as illegal
because it did not appear that the courts of law in Demerara could not try offences, and
that, "when the laws can act, every other mode of punishing supposed crimes is itself an
enormous crime."
So sensitive were our Revolutionary fathers on this subject, although Boston was almost
in a state of siege, when General Gage issued his proclamation of martial law, they spoke
of it as an "attempt to supersede the course of the common law, and, instead thereof, to
publish and order the use of martial law." The Virginia Assembly also denounced a similar
measure on the part of Governor Dunmore
"as an assumed power which the king himself cannot exercise, because it annuls the law
of the land and introduces the most execrable of all systems, martial law."
In some parts of the country, during the war of 1812, our officers made arbitrary arrests
and, by military tribunals, tried citizens who were not in the military service. These
arrests
Page 71 U. S. 129
and trials, when brought to the notice of the courts, were uniformly condemned as
illegal. The cases of Smith v. Shaw andMcConnell v. Hampden (reported in 12 Johnson
[Footnote 11]) are illustrations, which we cite not only for the principles they determine
but on account of the distinguished jurists concerned in the decisions, one of whom for
many years occupied a seat on this bench.
It is contended, that Luther v. Borden, decided by this court, is an authority for the claim
of martial law advanced in this case. The decision is misapprehended. That case grew
out of the attempt in Rhode Island to supersede the old colonial government by a
revolutionary proceeding. Rhode Island, until that period, had no other form of local
government than the charter granted by King Charles II in 1663, and, as that limited the
right of suffrage, and did not provide for its own amendment, many citizens became
dissatisfied because the legislature would not afford the relief in their power, and,
without the authority of law, formed a new and independent constitution and proceeded
to assert its authority by force of arms. The old government resisted this, and, as the
rebellion was formidable, called out the militia to subdue it and passed an act declaring
martial law. Borden, in the military service of the old government, broke open the house
of Luther, who supported the new, in order to arrest him. Luther brought suit against
Borden, and the question was whether, under the constitution and laws of the state,
Borden was justified. This court held that a state "may use its military power to put down
an armed insurrection too strong to be controlled by the civil authority," and, if the

legislature of Rhode Island thought the period so great as to require the use of its
military forces and the declaration of martial law, there was no ground on which this
court could question its authority, and, as Borden acted under military orders of the
charter government, which had been recognized by the political power of the country,
and was upheld by the state judiciary, he was justified in breaking
Page 71 U. S. 130
into and entering Luther's house. This is the extent of the decision. There was no
question in issue about the power of declaring martial law under the Federal
Constitution, and the court did not consider it necessary even to inquire "to what extent
nor under what circumstances that power may by exercised by a state."
We do not deem it important to examine further the adjudged cases, and shall therefore
conclude without any additional reference to authorities.
To the third question, then, on which the judges below were opposed in opinion, an
answer in the negative must be returned.
It is proper to say, although Milligan's trial and conviction by a military commission was
illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by
an established court and impartial jury, he deserved severe punishment. Open resistance
to the measures deemed necessary to subdue a great rebellion, by those who enjoy the
protection of government, and have not the excuse even of prejudice of section to plead
in their favor, is wicked; but that resistance becomes an enormous crime when it
assumes the form of a secret political organization, armed to oppose the laws, and seeks
by stealthy means to introduce the enemies of the country into peaceful communities,
there to light the torch of civil war and thus overthrow the power of the United States.
Conspiracies like these, at such a juncture, are extremely perilous, and those concerned
in them are dangerous enemies to their country, and should receive the heaviest
penalties of the law as an example to deter others from similar criminal conduct. It is
said the severity of the laws caused them; but Congress was obliged to enact severe
laws to meet the crisis, and as our highest civil duty is to serve our country when in
danger, the late war has proved that rigorous laws, when necessary, will be cheerfully
obeyed by a patriotic people, struggling to preserve the rich blessings of a free
government.
The two remaining questions in this case must be answered in the affirmative. The
suspension of the privilege of the
Page 71 U. S. 131

writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of
course, and, on the return made to it, the court decides whether the party applying is
denied the right of proceeding any further with it.
If the military trial of Milligan was contrary to law, then he was entitled, on the facts
stated in his petition, to be discharged from custody by the terms of the act of Congress
of March 3d, 1863. The provisions of this law having been considered in a previous part
of this opinion, we will not restate the views there presented. Milligan avers he was a
citizen of Indiana, not in the military or naval service, and was detained in close
confinement, by order of the President, from the 5th day of October, 1864, until the 2d
day of January, 1865, when the Circuit Court for the District of Indiana, with a grand jury,
convened in session at Indianapolis, and afterwards, on the 27th day of the same month,
adjourned without finding an indictment or presentment against him. If these averments
were true (and their truth is conceded for the purposes of this case), the court was
required to liberate him on taking certain oaths prescribed by the law, and entering into
recognizance for his good behavior.
But it is insisted that Milligan was a prisoner of war, and therefore excluded from the
privileges of the statute. It is not easy to see how he can be treated as a prisoner of war
when he lived in Indiana for the past twenty years, was arrested there, and had not
been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he
conspired with bad men to assist the enemy, he is punishable for it in the courts of
Indiana; but, when tried for the offence, he cannot plead the rights of war, for he was not
engaged in legal acts of hostility against the government, and only such persons, when
captured, are prisoners of war. If he cannot enjoy the immunities attaching to the
character of a prisoner of war, how can he be subject to their pains and penalties?
This case, as well as the kindred cases of Bowles and Horsey, were disposed of at the
last term, and the proper orders were entered of record. There is therefore no additional
entry required.
Page 71 U. S. 132
[Footnote 1]
1 Stat at Large 81.
[Footnote 2]
12 id. 755.
[Footnote 3]

13 Stat. at Large 734.

[Footnote 4]
2 Stat. at Large 159.
[Footnote 5]
8 U. S. 4 Cranch 75.
[Footnote 6]
Page 28 U. S. 193.
[Footnote 7]
19 U. S. 6 Wheaton 542.
[Footnote 8]
27 U. S. 2 Peters 449.
[Footnote 9]
19 U. S. 6 Wheaton 264.
[Footnote 10]
39 U. S. 14 Peters 540.
[Footnote 11]
Pages 257 and 234.
The CHIEF JUSTICE delivered the following opinion.
Four members of the court, concurring with their brethren in the order heretofore made
in this cause, but unable to concur in some important particulars with the opinion which
has just been read, think it their duty to make a separate statement of their views of the
whole case.
We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the
petition of Milligan for the writ of habeas corpus.

Whether this court has jurisdiction upon the certificate of division admits of more
question. The construction of the act authorizing such certificates, which has hitherto
prevailed here, denies jurisdiction in cases where the certificate brings up the whole
cause before the court. But none of the adjudicated cases is exactly in point, and we are
willing to resolve whatever doubt may exist in favor of the earliest possible answers to
questions involving life and liberty. We agree, therefore, that this court may properly
answer questions certified in such a case as that before us.
The crimes with which Milligan was charged were of the gravest character, and the
petition and exhibits in the record, which must here be taken as true, admit his guilt. But
whatever his desert of punishment may be, it is more important to the country and to
every citizen that he should not be punished under an illegal sentence, sanctioned by
this court of last resort, than that he should be punished at all. The laws which protect
the liberties of the whole people must not be violated or set aside in order to inflict, even
upon the guilty, unauthorized though merited justice.
The trial and sentence of Milligan were by military commission convened in Indiana
during the fall of 1864. The action of the commission had been under consideration by
President Lincoln for some time when he himself became the victim of an abhorred
conspiracy. It was approved by his successor in May, 1865, and the sentence was
ordered to be carried into execution. The proceedings therefore had the fullest sanction
of the executive department of the government.
Page 71 U. S. 133
This sanction requires the most respectful and the most careful consideration of this
court. The sentence which it supports must not be set aside except upon the clearest
conviction that it cannot be reconciled with the Constitution and the constitutional
legislation of Congress.
We must inquire, then, what constitutional or statutory provisions have relation to this
military proceeding.
The act of Congress of March 3d, 1863, comprises all the legislation which seems to
require consideration in this connection. The constitutionality of this act has not been
questioned and is not doubted.
The first section authorized the suspension, during the Rebellion, of the writ of habeas
corpus throughout the United States by the President. The two next sections limited this
authority in important respects.

The second section required that lists of all persons, being citizens of states in which the
administration of the laws had continued unimpaired in the Federal courts, who were
then held or might thereafter be held as prisoners of the United States, under the
authority of the President, otherwise than as prisoners of war, should be furnished to the
judges of the Circuit and District Courts. The lists transmitted to the judges were to
contain the names of all persons, residing within their respective jurisdictions, charged
with violation of national law. And it was required, in cases where the grand jury in
attendance upon any of these courts should terminate its session without proceeding by
indictment or otherwise against any prisoner named in the list, that the judge of the
court should forthwith make an order that such prisoner, desiring a discharge, should be
brought before him or the court to be discharged on entering into recognizance, if
required, to keep the peace and for good behavior, or to appear, as the court might
direct, to be further dealt with according to law. Every officer of the United States having
custody of such prisoners was required to obey and execute the judge's order under
penalty, for refusal or delay, of fine and imprisonment.
The third section provided, in case lists of persons other
Page 71 U. S. 134
than prisoners of war then held in confinement, or thereafter arrested, should not be
furnished within twenty days after the passage of the act, or, in cases of subsequent
arrest, within twenty days after the time of arrest, that any citizen, after the termination
of a session of the grand jury without indictment or presentment, might, by petition
alleging the facts and verified by oath, obtain the judge's order of discharge in favor of
any person so imprisoned on the terms and conditions prescribed in the second section.
It was made the duty of the District Attorney of the United States to attend examinations
on petitions for discharge.
It was under this act that Milligan petitioned the Circuit Court for the District of Indiana
for discharge from imprisonment.
The holding of the Circuit and District Courts of the United States in Indiana had been
uninterrupted. The administration of the laws in the Federal courts had remained
unimpaired. Milligan was imprisoned under the authority of the President, and was not a
prisoner of war. No list of prisoners had been furnished to the judges, either of the
District or Circuit Courts, as required by the law. A grand jury had attended the Circuit
Courts of the Indiana district while Milligan was there imprisoned, and had closed its
session without finding any indictment or presentment or otherwise proceeding against
the prisoner.

His case was thus brought within the precise letter and intent of the act of Congress,
unless it can be said that Milligan was not imprisoned by authority of the President, and
nothing of this sort was claimed in argument on the part of the government.
It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition
for the writ of habeas corpus, called in the act an order to bring the prisoner before the
judge or the court, and to issue the writ, or, in the language of the act, to make the
order.
The first question, therefore -- ought the writ to issue? -- must be answered in the
affirmative.
Page 71 U. S. 135
And it is equally clear that he was entitled to the discharge prayed for.
It must be borne in mind that the prayer of the petition was not for an absolute
discharge, but to be delivered from military custody and imprisonment, and if found
probably guilty of any offence, to be turned over to the proper tribunal for inquiry and
punishment, or, if not found thus probably guilty, to be discharged altogether.
And the express terms of the act of Congress required this action of the court. The
prisoner must be discharged on giving such recognizance as the court should require,
not only for good behavior, but for appearance, as directed by the court, to answer and
be further dealt with according to law.
The first section of the act authorized the suspension of the writ of habeas corpus
generally throughout the United States. The second and third sections limited this
suspension, in certain cases, within states where the administration of justice by the
Federal courts remained unimpaired. In these cases, the writ was still to issue, and,
under it, the prisoner was entitled to his discharge by a circuit or district judge or court
unless held to bail for appearance to answer charges. No other judge or court could
make an order of discharge under the writ. Except under the circumstances pointed out
by the act, neither circuit nor district judge or court could make such an order. But under
those circumstances, the writ must be issued, and the relief from imprisonment directed
by the act must be afforded. The commands of the act were positive, and left no
discretion to court or judge.
An affirmative answer must therefore be given to the second question, namely: ought
Milligan to be discharged according to the prayer of the petition?

That the third question, namely: had the military commission in Indiana, under the facts
stated, jurisdiction to try and sentence Milligan? must be answered negatively is an
unavoidable inference from affirmative answers to the other two.
Page 71 U. S. 136
The military commission could not have jurisdiction to try and sentence Milligan if he
could not be detained in prison under his original arrest or under sentence after the close
of a session of the grand jury without indictment or other proceeding against him.
Indeed, the act seems to have been framed on purpose to secure the trial of all offences
of citizens by civil tribunals in states where these tribunals were not interrupted in the
regular exercise of their functions.
Under it, in such states, the privilege of the writ might be suspended. Any person
regarded as dangerous to the public safety might be arrested and detained until after the
session of a grand jury. Until after such session, no person arrested could have the
benefit of the writ, and even then no such person could be discharged except on such
terms, as to future appearance, as the court might impose. These provisions obviously
contemplate no other trial or sentence than that of a civil court, and we could not assert
the legality of a trial and sentence by a military commission, under the circumstances
specified in the act and described in the petition, without disregarding the plain
directions of Congress.
We agree therefore that the first two questions certified must receive affirmative
answers, and the last a negative. We do not doubt that the positive provisions of the act
of Congress require such answers. We do not think it necessary to look beyond these
provisions. In them, we find sufficient and controlling reasons for our conclusions.
But the opinion which has just been read goes further, and, as we understand it, asserts
not only that the military commission held in Indiana was not authorized by Congress,
but that it was not in the power of Congress to authorize it, from which it may be thought
to follow that Congress has no power to indemnify the officers who composed the
commission against liability in civil courts for acting as members of it.
We cannot agree to this.
We agree in the proposition that no department of the
Page 71 U. S. 137

government of the United States -- neither President, nor Congress, nor the Courts -possesses any power not given by the Constitution.
We assent fully to all that is said in the opinion of the inestimable value of the trial by
jury, and of the other constitutional safeguards of civil liberty. And we concur also in what
is said of the writ of habeas corpus and of its suspension, with two reservations: (1) that,
in our judgment, when the writ is suspended, the Executive is authorized to arrest, as
well as to detain, and (2) that there are cases in which, the privilege of the writ being
suspended, trial and punishment by military commission, in states where civil courts are
open, may be authorized by Congress, as well as arrest and detention.
We think that Congress had power, though not exercised, to authorize the military
commission which was held in Indiana.
We do not think it necessary to discuss at large the grounds of our conclusions. We will
briefly indicate some of them.
The Constitution itself provides for military government, as well as for civil government.
And we do not understand it to be claimed that the civil safeguards of the Constitution
have application in cases within the proper sphere of the former.
What, then, is that proper sphere? Congress has power to raise and support armies, to
provide and maintain a navy, to make rules for the government and regulation of the
land and naval forces, and to provide for governing such part of the militia as may be in
the service of the United States.
It is not denied that the power to make rules for the government of the army and navy is
a power to provide for trial and punishment by military courts without a jury. It has been
so understood and exercised from the adoption of the Constitution to the present time.
Nor, in our judgment, does the fifth, or any other amendment, abridge that power.
"Cases arising in the land and naval forces, or in the militia in actual service in time of
war
Page 71 U. S. 138
or public danger," are expressly excepted from the fifth amendment, "that no person
shall be held to answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury," and it is admitted that the exception applies
to the other amendments as well as to the fifth.

Now we understand this exception to have the same import and effect as if the powers of
Congress in relation to the government of the army and navy and the militia had been
recited in the amendment, and cases within those powers had been expressly excepted
from its operation. The states, most jealous of encroachments upon the liberties of the
citizen, when proposing additional safeguards in the form of amendments, excluded
specifically from their effect cases arising in the government of the land and naval
forces. Thus, Massachusetts proposed that
"no person shall be tried for any crime by which he would incur an infamous punishment
or loss of life until he be first indicted by a grand jury except in such cases as may arise
in the government and regulation of the land forces."
The exception in similar amendments proposed by New York, Maryland, and Virginia was
in the same or equivalent terms. The amendments proposed by the states were
considered by the first Congress, and such as were approved in substance were put in
form and proposed by that body to the states. Among those thus proposed and
subsequently ratified was that which now stands as the fifth amendment of the
Constitution. We cannot doubt that this amendment was intended to have the same
force and effect as the amendment proposed by the states. We cannot agree to a
construction which will impose on the exception in the fifth amendment a sense other
than that obviously indicated by action of the state conventions.
We think, therefore, that the power of Congress in the government of the land and naval
forces and of the militia is not at all affected by the fifth or any other amendment. It is
not necessary to attempt any precise definition of the boundaries of this power. But may
it not be said that government
Page 71 U. S. 139
includes protection and defence, as well as the regulation of internal administration? And
is it impossible to imagine cases in which citizens conspiring or attempting the
destruction or great injury of the national forces may be subjected by Congress to
military trial and punishment in the just exercise of this undoubted constitutional power?
Congress is but the agent of the nation, and does not the security of individuals against
the abuse of this, as of every other, power depend on the intelligence and virtue of the
people, on their zeal for public and private liberty, upon official responsibility secured by
law, and upon the frequency of elections, rather than upon doubtful constructions of
legislative powers?

But we do not put our opinion that Congress might authorize such a military commission
as was held in Indiana upon the power to provide for the government of the national
forces.
Congress has the power not only to raise and support and govern armies, but to declare
war. It has therefore the power to provide by law for carrying on war. This power
necessarily extends to all legislation essential to the prosecution of war with vigor and
success except such as interferes with the command of the forces and the conduct of
campaigns. That power and duty belong to the President as commander-in-chief. Both
these powers are derived from the Constitution, but neither is defined by that
instrument. Their extent must be determined by their nature and by the principles of our
institutions.
The power to make the necessary laws is in Congress, the power to execute in the
President. Both powers imply many subordinate and auxiliary powers. Each includes all
authorities essential to its due exercise. But neither can the President, in war more than
in peace, intrude upon the proper authority of Congress, nor Congress upon the proper
authority of the President. Both are servants of the people, whose will is expressed in the
fundamental law. Congress cannot direct the conduct of campaigns, nor can the
President,
Page 71 U. S. 140
or any commander under him, without the sanction of Congress, institute tribunals for
the trial and punishment of offences, either of soldiers or civilians, unless in cases of a
controlling necessity, which justifies what it compels, or at least insures acts of indemnity
from the justice of the legislature.
We by no means assert that Congress can establish and apply the laws of war where no
war has been declared or exists.
Where peace exists, the laws of peace must prevail. What we do maintain is that, when
the nation is involved in war, and some portions of the country are invaded, and all are
exposed to invasion, it is within the power of Congress to determine in what states or
district such great and imminent public danger exists as justifies the authorization of
military tribunals for the trial of crimes and offences against the discipline or security of
the army or against the public safety.
In Indiana, for example, at the time of the arrest of Milligan and his co-conspirators, it is
established by the papers in the record, that the state was a military district, was the
theatre of military operations, had been actually invaded, and was constantly threatened

with invasion. It appears also that a powerful secret association, composed of citizens
and others, existed within the state, under military organization, conspiring against the
draft and plotting insurrection, the liberation of the prisoners of war at various depots,
the seizure of the state and national arsenals, armed cooperation with the enemy, and
war against the national government.
We cannot doubt that, in such a time of public danger, Congress had power under the
Constitution to provide for the organization of a military commission and for trial by that
commission of persons engaged in this conspiracy. The fact that the Federal courts were
open was regarded by Congress as a sufficient reason for not exercising the power, but
that fact could not deprive Congress of the right to exercise it. Those courts might be
open and undisturbed in the execution
Page 71 U. S. 141
of their functions, and yet wholly incompetent to avert threatened danger or to punish,
with adequate promptitude and certainty, the guilty conspirators.
In Indiana, the judges and officers of the courts were loyal to the government. But it
might have been otherwise. In times of rebellion and civil war, it may often happen,
indeed, that judges and marshals will be in active sympathy with the rebels, and courts
their most efficient allies.
We have confined ourselves to the question of power. It was for Congress to determine
the question of expediency. And Congress did determine it. That body did not see fit to
authorize trials by military commission in Indiana, but, by the strongest implication,
prohibited them. With that prohibition we are satisfied, and should have remained silent
if the answers to the questions certified had been put on that ground, without denial of
the existence of a power which we believe to be constitutional and important to the
public safety -- a denial which, as we have already suggested, seems to draw in question
the power of Congress to protect from prosecution the members of military commissions
who acted in obedience to their superior officers and whose action, whether warranted
by law or not, was approved by that upright and patriotic President under whose
administration the Republic was rescued from threatened destruction.
We have thus far said little of martial law, nor do we propose to say much. What we have
already said sufficiently indicates our opinion that there is no law for the government of
the citizens, the armies or the navy of the United States, within American jurisdiction,
which is not contained in or derived from the Constitution. And wherever our army or
navy may go beyond our territorial limits, neither can go beyond the authority of the
President or the legislation of Congress.

There are under the Constitution three kinds of military jurisdiction: one to be exercised
both in peace and war, another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and civil war within states or
districts occupied by rebels treated
Page 71 U. S. 142
as belligerents, and a third to be exercised in time of invasion or insurrection within the
limits of the United States or during rebellion within the limits of states maintaining
adhesion to the National Government, when the public danger requires its exercise. The
first of these may be called jurisdiction under MILITARY LAW, and is found in acts of
Congress prescribing rules and articles of war or otherwise providing for the government
of the national forces; the second may be distinguished as MILITARY GOVERNMENT,
superseding, as far as may be deemed expedient, the local law and exercised by the
military commander under the direction of the President, with the express or implied
sanction of Congress, while the third may be denominated MARTIAL LAW PROPER, and is
called into action by Congress, or temporarily, when the action of Congress cannot be
invited, and, in the case of justifying or excusing peril, by the President in times of
insurrection or invasion or of civil or foreign war, within districts or localities where
ordinary law no longer adequately secures public safety and private rights.
We think that the power of Congress, in such times and in such localities, to authorize
trials for crimes against the security and safety of the national forces may be derived
from its constitutional authority to raise and support armies and to declare war, if not
from its constitutional authority to provide for governing the national forces.
We have no apprehension that this power, under our American system of government, in
which all official authority is derived from the people and exercised under direct
responsibility to the people, is more likely to be abused than the power to regulate
commerce or the power to borrow money. And we are unwilling to give our assent by
silence to expressions of opinion which seem to us calculated, though not intended, to
cripple the constitutional powers of the government, and to augment the public dangers
in times of invasion and rebellion.
Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice MILLER concur with me in these
views.

217. David v Arroyo

EN BANC
PROF. RANDOLF S. DAVID, LORENZO
TAADA 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
,
- versus GLORIA
MACAPAGALARROYO,
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,
Responde
nts.
x-------------------------------------------------x
NIEZ CACHO-OLIVARES AND TRIBUNE
PUBLISHING CO., INC.,
Petitioners,

G.R. No. 171396

Present:
PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JJ.

Promulgated:
May 3, 2006
G.R. No. 171409

- versus HONORABLE
SECRETARY
EDUARDO
ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO,
Respondents
.
x-------------------------------------------------x
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
,

G.R. No. 171485

- versus 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
.
x-------------------------------------------------x
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.

G.R. No. 171483

USTAREZ,
ANTONIO
C.
PASCUAL,
SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR.,
AND ROQUE M. TAN,
Petitioners,

- versus -

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
.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC. (ALG),
Petitioner
,
- versus EXECUTIVE SECRETARY EDUARDO R.
ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO
LOMIBAO,
Respondents
.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO M.
BAUTISTA, ROMULO R. RIVERA, JOSE
AMOR M. AMORADO, ALICIA A. RISOSVIDAL, 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
,
- versus -

G.R. No. 171400

G.R. No. 171489

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
.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,
G.R. No. 171424
- versus 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
.
x---------------------------------------------------------------------------------------------x

DECISION
SANDOVAL-GUTIERREZ, J.:

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.
Chief Justice Artemio V. Panganibans 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 20 th 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 peoples 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;

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 dulyconstituted 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 peoples 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.

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 Peoples 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 Peoples

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 Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr. to disavow any
defection. The latter promptly obeyed and issued a public statement: All SAF units are
under the effective control of responsible and trustworthy officers with proven integrity
and unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos 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 groups 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
Armys 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 Presidents ouster is
nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and
cell sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals
and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers
and several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20 th 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 Presidents 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.
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. Beltrans 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.
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 Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio 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.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs 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 Casio, 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.
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
[20]
VI, and (d) Section 17
of Article XII of the Constitution.
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.

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 peoples right
to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties 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.
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. x x x 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.
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 Arroyos 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 Arroyos 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 Courts 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 publics interest, involving as they do the peoples 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.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief Justices 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 plaintiffs 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.
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 taxpayers suit is in a different category from the plaintiff
in a citizens 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, howeverthe people are the real partiesIt
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 taxpayers 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 State Supreme Court laid
down the more stringent direct injury test in Ex Parte Levitt,[42] later reaffirmed
inTileston 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:
(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)
(2)

the cases involve constitutional issues;

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.

Significantly, recent decisions show a certain toughening in the Courts attitude

toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
peoples 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,
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.
[57]

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 Presidents
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 Taada 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.
In G.R. No. 171483, KMUs 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.
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 Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from the
indulgent
days
of Barcelon
v.
Baker[70]
and Montenegro
v.
[71]
[72]
Castaneda
to the volatile era of Lansang v.
Garcia,
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, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and
the authority to determine
whether or not he has 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
[78]
or
justiciable
question.
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 Presidents 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 Courts 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

Presidents

exercise

of

power, Lansang adopted the test that judicial inquiry can go no further than to satisfy
the Court not that the Presidents 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 Presidents 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 Arroyos exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals
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.

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 peoples 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 Machiavellis 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:
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
shortDictatorship should always be strictly legitimate in characterFinal
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.

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
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 Locks theory of prerogative, to Watkins doctrine of
constitutional dictatorship and, eventually, to McIlwains 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.
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 Jacksons
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.

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 laws 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.
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, Artilce VII do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion
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 Presidents calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held
that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires
it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance with its
rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of martial

law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released.

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

the most to the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only
criterion for the exercise of the calling-out power is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion. Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Offices 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 Presidents 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 Presidents
authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyos authority to declare a state of
rebellion emanates from her powers as Chief Executive, the statutory authority cited
inSanlakas 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 Arroyos 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 States extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise
of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration
of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a warn[ing] to citizens that the military power
has been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order and
the enforcement of law.[113]
In his Statement before the Senate Committee on Justice on March 13, 2006,
Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the
three powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose of enabling him
to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts

and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

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

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:

x x x and to enforce obedience to all the laws and to all
decrees, orders, and regulations promulgated by me personally
or upon my direction; and as 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 x x x 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 Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on
the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents 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.
The order cannot properly be sustained as an exercise of the
Presidents 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 nations 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 Presidents
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
Sates 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 Committees 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?
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]
x

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.
x x x
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.
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 privatelyowned
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
20thAnniversary 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.

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 Presidents 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 maybe 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 efficientadministration 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.

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 countrys
terrorist is another countrys 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.
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 terroristsfreedom 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 x x x by
force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define acts of terrorism. Since there is no law defining acts
of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to
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.)

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
x

x.

Neither of the two (2) exceptions mentioned above justifies petitioner

Davids warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation
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 Nowand 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.

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
seditionand 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 Malacaangs 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.

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 persons 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 Tribunes 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
theDaily 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
occupantthereof 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 Tribunes offices and the seizure of its materials for publication and other
papers are illegal; and that the same are inadmissible for any purpose, thus:
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 oclock 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.
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
dont 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 dont 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.
In this connection, Chief Justice Artemio V. Panganibans 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 1017s 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.

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 AFPs authority in
carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also
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 peoples liberty.
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 MacapagalArroyo 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.

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.

218. Aquino Jr. v Military Commission

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-37364 May 9, 1975

BENIGNO S. AQUINO, JR., petitioner,
vs.
MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, and SECRETARY OF NATIONAL DEFENSE, THE CHIEF JUSTICE OF
THE SUPREME COURT, and SECRETARY OF JUSTICE, *respondents.
Taada, Salonga, Ordoez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for
petitioner.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor-General Vicente V.
Mendoza, Assistant Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General
Reynato S. Puno and Attorney Blesila Quintillan for respondents.

ANTONIO, J.:+.wph!1
Following the proclamation of martial law in the Philippines, petitioner was arrested on
September 23, 1972, pursuant to General Order No. 2-A of the President for complicity in
a conspiracy to seize political and state power in the country and to take over the
Government. He was detained at Fort Bonifacio in Rizal province. On September 25,
1972, he sued for a writ of habeas corpus 1 in which he questioned the legality of the
proclamation of martial law and his arrest and detention. This Court issued a writ of
habeas corpus, returnable to it, and required respondents to file their respective
answers, after which the case was heard. Thereafter, the parties submitted their
memoranda. Petitioner's last Reply memorandum was dated November 30, 1972. On
September 17, 1974, this Court dismissed the petition and upheld the validity of martial
law and the arrest and detention of petitioner. 2
In the present case, petitioner challenges the jurisdiction of military commissions to try
him, alone or together with others, for illegal possession of firearms, ammunition and
explosives, for violation of the Anti-Subversion Act and for murder. The charges are
contained in six (6) amended charge sheets 3 filed on August 14, 1973 with Military
Commission No. 2.
The original petition in this case was filed on August 23, 1973. It sought to restrain the
respondent Military Commission from the proceeding with the hearing and trial of
petitioner on August 27, 1973. Because of the urgency of the petition, this Court called a
hearing on Sunday, August 26, on the question of whether with its membership of only
nine (9) Justices, it had a quorum to take cognizance of the petition in view of the
constitutional questions involved. At that hearing, this Court asked the parties to agree
to seek from the Military Commission a postponement of petitioner's trial the following
day. The purpose was to relieve the Court of the pressure of having to decide the
question of quorum without adequate time to do so.
When the proceedings before the Military Commission opened the following day,
however, petitioner questioned the fairness of the trial and announced that he did not
wish to participate in the proceedings even as he discharged both his defense counsel of
choice and his military defense counsel.
The proceedings were thereupon adjourned to another day. In the meantime, for the
petitioner's assurance, a Special Committee, composed of a retired. Justice of the
Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4)
members to be designated respectively by petitioner, the President of the Integrated Bar
of the Philippines, the Secretary of Justice and the Secretary of National Defense, was
created to reinvestigate the charges against petitioner. The Secretaries of Justice and
National Defense designated their representatives but the petitioner refused to name
his. The Chief Justice asked former Justice J.B.L. Reyes but the latter declined, as he also
declined in his capacity as President of the IBP to designate a representative to the

Committee. As a result, with only two of its members designed, the Special Committee
has not been able to function.
On September 4, 1973, a supplemental petition alleging the creation of the Special
Committee and questioning the legality of its creation was filed. The Chief Justice of the
Supreme Court and the Secretary of Justice were included as respondents. Subsequently,
the Court resolved to require the respondents to file their answer and on August 21,
1974, within the extended period granted by the Court, respondents, with the exception
of the Chief Justice, filed their answer to the supplemental petition.
Thereafter, petitioner was required to file a reply and was granted additional time after
the lapse of the original period, but instead of doing so, petitioner asked for the
admission of a second supplemental petition challenging the continued enforcement of
martial law in the Philippines, in the light of Presidential statements to the effect that
with the coming into force of the new Constitution on January 17, 1973, martial law was
"technically and legally" lifted. To this petition respondents answered. Thereafter, the
parties submitted their respective memoranda in lieu of oral argument as per Resolution
of this Court on January 14, 1975. 4
On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of Temporary
Restraining Order Against Military Commission No. 2"; praying that said Commission be
prohibited from proceeding with the perpetuation of testimony under its Order dated
March 10, 1975, the same being illegal, until further orders from the Supreme Court..
On March 31, 1975, respondents filed their Comment to petitioner's aforementioned
urgent motion, which motion and other related incidents were set for hearing on April 14,
1975 at 10:00 a.m., as per Resolution of this Court on April 8, 1975.
Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that "for lack of a
necessary quorum", it could not act on petitioner's Urgent Motion for Issuance of
temporary Restraining Order Against Military Commission No. 2, inasmuch as this case
involved a constitutional question..
On April 7, 1975, petitioner filed a "Manifestation" stating, among others, that the
"Urgent Motion did not and does not involve a constitutional question", for reasons
stated therein.
On April 12, 1975, respondents filed their "Reply to Petitioner's Manifestation", followed
by Respondents' Manifestation filed on April 14, 1975, attaching thereto fourteen (14)
sworn statements of witnesses whose testimonies are sought to be perpetuated..
On April 14, 1975, this Court also issued a restraining order against respondent Military
Commission No. 2, restraining it from further proceeding with the perpetuation of
testimony under its Order dated March 10, 1975 until the matter is heard and further
orders are issued.

When this case was called for hearing, petitioner's counsel presented to this Court a
motion to withdraw the petition, as well as all other pending matters and/or incidents in
connection therewith. Respondents' counsel interposed objection to the granting of the
aforesaid motion to withdraw.
After the hearing, this Court Resolved: "(a) to require the Solicitor General to furnish the
Court as well as the petitioner and the latter's counsel, with copies of the transcript of all
the stenographic notes taken at the hearing before the Military Commission No. 2 for the
perpetuation of the testimony of the witnesses for the prosecution in various criminal
cases filed against herein petitioner, within five (5) days from today; (b) to request the
Solicitor General and the AFP Judge Advocate General to make the necessary
arrangements for the petitioner to confer with his counsel on matters connected with the
aforementioned motion to withdraw; (c) to allow counsel for the petitioner, if they so
desire, to file a manifestation in amplication of the aforesaid motion to withdraw, within
ten (10) days from the date they confer with the petitioner, and thereafter to allow the
Solicitor General to file a counter-manifestation within ten (10) days from receipt of a
copy thereof; and (d) to consider the case submitted for decision after submission by
both parties of their respective pleadings on the motion to withdraw."
Subsequently, the parties manifested their compliance.
I
Acting on petitioner's motion to withdraw the petitions and motions in this case, and
there being only three (3) Justices (Justices Fernando, Teehankee and Muoz Palma) who
voted in favor of granting such withdrawal, whereas seven (7) Justices (Justices Castro,
Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) voted for its denial, the said
motion to withdraw is deemed denied (Section 11, Rule 56 of the Revised Rules of Court).
The Chief Justice has inhibited himself, having been made respondent by petitioner in his
Supplemental Petitions.5
The Justice who voted to deny the withdrawal are of the opinion that since all matters in
issue in this case have already been submitted for resolution, and they are of paramount
public interest, it is imperative that the questions raised by petitioner on the
constitutionality and legality of proceedings against civilians in the military commissions,
pursuant to pertinent General Orders, Presidential Decrees and Letters of Instruction,
should be definitely resolved.
In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as
well as the supplemental petitions. 5*
II
MILITARY COMMISSIONS

We have that the respondent Military Commission No. 2 has been lawfully constituted
and validly vested with jurisdiction to hear the cases against civilians, including the
petitioner.
1. The Court has previously declared that the proclamation of Martial Law (Proclamation
No. 1081) on September 21, 1972, by the President of the Philippines is valid and
constitutional and that its continuance is justified by the danger posed to the public
safety. 6
2. To preserve the safety of the nation in times of national peril, the President of the
Philippines necessarily possesses broad authority compatible with the imperative
requirements of the emergency. On the basis of this, he has authorized in General Order
No. 8 (September 27, 1972) the Court of Staff, Armed Forces of the Philippines, to create
military tribunals to try and decide cases "of military personnel and such other cases as
may be referred to them." In General Order No. 12 (September 30, 1972), the military
tribunals were vested with jurisdiction "exclusive of the civil courts", among others, over
crimes against public order, violations of the Anti-Subversion Act, violations of the laws
on firearms, and other crimes which, in the face of the emergency, are directly related to
the quelling of the rebellion and preservation of the safety and security of the Republic.
In order to ensure a more orderly administration of justice in the cases triable by the said
military tribunals, Presidential Decree No. 39 was promulgated on November 7,1972,
providing for the "Rules Governing the Creation, Composition, Jurisdiction, Procedure and
Other Matters Relevant to Military Tribunals." These measures he has the authority to
promulgate, since this Court recognized that the incumbent President, under paragraphs
1 and 2 of Section 3 of Article XVII of the new Constitution, had the authority to
"promulgate proclamations, orders and decrees during the period of martial law essential
to the security and preservation of the Republic, to the defense of the political and social
liberties of the people and to the institution of reforms to prevent the resurgence of the
rebellion or insurrection or secession or the threat thereof....." 7 Pursuant to the aforesaid
Section 3 [1] and [2] of Article XVII of the Constitution, General Orders No. 8, dated
September 27, 1972 (authorizing the creation of military tribunals), No. 12, dated
September 30, 1972 (defining the jurisdiction of military criminals and providing for the
transfer from the civil courts to military tribunals of cases involving subversion, sedition,
insurrection or rebellion, etc.), and No. 39, dated November 7, 1972, as amended
(prescribing the procedures before military tribunals), are now "part of the law of the
land." 8
3. Petitioner nevertheless insists that he being a civilian, his trial by a military
commission deprives him of his right to due process, since in his view the due process
guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial
process. This argument ignores the reality of the rebellion and the existence of martial
law. It is, of course, essential that in a martial law situation, the martial law administrator
must have ample and sufficient means to quell the rebellion and restore civil order.
Prompt and effective trial and punishment of offenders have been considered as
necessary in a state of martial law, as a mere power of detention may be wholly

inadequate for the exigency. 9 "It need hardly be remarked that martial law lawfully
declared," observed Winthrop, "creates an exception to the general rule of exclusive
subjection to the civil jurisdiction, and renders offenses against the laws of war, as well
as those of a civil character, triable, at the discretion of the commander, (as governed by
a consideration for the public interests and the due administration of justice) by military
tribunals." 10
Indeed, it has been said that in time of overpowering necessity, "public danger warrants
the substitution of executive process for judicial process." 11 According to Schwartz, "The
immunity of civilians from military jurisdiction must, however, give way in areas
governed by martial law. When it is absolutely imperative for public safety, legal
processes can be superseded and military tribunals authorized to exercise the
jurisdiction normally vested in court." 12
In any case, We cannot close Our eyes to the fact that the continued existence of these
military tribunals and the exercise by them of jurisdiction over civilians during the period
of martial law are within the contemplation and intendment of Section 3, paragraph 2 of
Article XVII of the Constitution. These are tribunals of special and restricted jurisdiction
created under the stress of an emergency and national security. This is the only logical
way to construe said Section 3, paragraph 2 of Article XVII of the Constitution, in relation
to General Order Nos. 8, 12 and 39, in the context of contemporary history and the
circumstances attendant to the framing of the new charter.
4. When it has been established that martial law is in force, the responsibility for all acts
done thereunder must be taken by the authorities administering it. 13 It is a serious
responsibility which merits the cooperation of all in the collective desire for the
restoration of civil order. In the case at bar, petitioner is charged with having conspired
with certain military leaders of the communist rebellion to overthrow the government,
furnishing them arms and other instruments to further the uprising. There is no question
that the continuing communist rebellion was one of the grave threats to the Republic
that brought about the martial law situation. Under General Order No. 12, jurisdiction
over this offense has been vested exclusively upon military tribunals. It cannot be said
that petitioner has been singled out for trial for this offense before the military
commission. Pursuant to General Order No. 12, all "criminal cases involving subversion,
sedition, insurrection or rebellion or those committed in furtherance of, on the occasion
of incident to or in connection with the commission of said crimes" which were pending
in the civil courts were ordered transferred to the military tribunals. This jurisdiction of
the tribunal, therefore, operates equally on all persons in like circumstances..
5. Neither are We impressed with petitioner's argument that only thru a judicial
proceeding before the regular courts can his right to due process be preserved. The
guarantee of due process is not a guarantee of any particular form of tribunal in criminal
cases. A military tribunal of competent jurisdiction, accusation in due form, notice and
opportunity to defend and trial before an impartial tribunal, adequately meet the due
process requirement. Due process of law does not necessarily means a judicial

proceeding in the regular courts. 14 The guarantee of due process, viewed in its
procedural aspect, requires no particular form of procedure. It implies due notice to the
individual of the proceedings, an opportunity to defend himself and "the problem of the
propriety of the deprivations, under the circumstances presented, must be resolved in a
manner consistent with essential fairness." 15 It means essentially a fair and impartial
trial and reasonable opportunity for the preparation of defense. 16
Here, the procedure before the Military Commission, as prescribed in Presidential Decree
No. 39, assures observance of the fundamental requisites of procedural due process, due
notice, an essentially fair and impartial trial and reasonable opportunity for the
preparation of the defense. 17
6. It is, however, asserted that petitioner's trial before the military commission will not be
fair and impartial, as the President had already prejudged petitioner's cases and the
military tribunal is a mere creation of the President, and "subject to his control and
direction." We cannot, however, indulge in unjustified assumptions. Prejudice cannot be
presumed, especially if weighed against the great confidence and trust reposed by the
people upon the President and the latter's legal obligation under his oath to "do justice to
every man". Nor is it justifiable to conceive, much less presume, that the members of the
military commission, the Chief of Staff of the Armed Forces of the Philippines, the Board
of Review and the Secretary of National Defense, with their corresponding staff judge
advocates, as reviewing authorities, through whom petitioner's hypothetical conviction
would be reviewed before reaching the President, would all be insensitive to the great
principles of justice and violate their respective obligations to act fairly and impartially in
the premises.
This assumption must be made because innocence, not wrongdoing, is to be presumed.
The presumption of innocence includes that of good faith, fair dealing and honesty. This
presumption is accorded to every official of the land in the performance of his public
duty. There is no reason why such presumption cannot be accorded to the President of
the Philippines upon whom the people during this period has confided powers and
responsibilities which are of a very high and dedicate nature. The preservation of the
rights guaranteed by the Constitution rests at bottom exactly where the defense of the
nation rests: in the good sense and good will of the officials upon whom the Constitution
has placed the responsibility of ensuring the safety of the nation in times of national
peril.
III
ADMINISTRATIVE ORDER NO. 355
We also find that petitioner's claim that Administrative Order No. 355 actually "strips him
of his right to due process" is negated by the basic purpose and the clear provisions of
said Administrative Order. It was precisely because of petitioner's complaint that he was
denied the opportunity to be heard in the preliminary investigation of his charges that

the President created a Special Committee to reinvestigate the charges filed against him
in the military commission. The Committee is to be composed of a retired Justice of the
Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4)
members to be designated respectively by the accused, the President of the Integrated
Bar, the Secretary of Justice and the Secretary of National Defense, all of whom,
according to Administrative Order No. 355 "must be learned in the law, reputed for
probity, integrity, impartiality, incorruptibility and fairness...." It is intended that the
Committee should conduct the investigation with "utmost fairness, 'impartiality and
objectivity' ensuring to the accused his constitutional right to due process, to determine
whether "there is reasonable ground to believe that the offenses charged were in fact
committed and the accused is probably guilty thereof."
Petitioner, however, objected by challenging in his supplemental petition before this
Court the validity of Administrative Order No, 355, on the pretense that by submitting to
the jurisdiction of the Special Committee he would be waiving his right to crossexamination because Presidential Decree No. 77, which applies to the proceedings of the
Special Committee, has done away with cross-examination in preliminary investigation.
The infirmity of this contention is apparent from the fact that the committee "shall have
all the powers vested by law in officials authorized to conduct preliminary
investigations." We have held as implicit in the power of the investigating Fiscal or Judge
in the discharge of his grave responsibility of ascertaining the existence of probable
cause, is his right to cross-examine the witnesses since "cross-examination whether by
the judge or by the prosecution supplies the gap by permitting an instant contrast of
falsehoods and opposing half-truths, mixed with elements of truth, from which the
examining judge or officer is better able to form a correct synthesis of the real facts." 18
In the case at bar, petitioner's representative in the Committee having been conferred
with "all the powers" of officials authorized to conduct preliminary investigations, is,
therefore, expressly authorized by Section 1[c] of Presidential Decree No. 77 to subpoena
the complainant and his witnesses and "profound clarificatory questions". Viewed in the
context of Our ruling in Abrera v.. Muoz, 19 this implies the authority of his
representative in the Committee to cross-examine the witnesses of the prosecution, in
order to reach an intelligent and correct conclusion on the existence of probable cause.
IV
PRELIMINARY INVESTIGATION
Equally untenable is petitioner's contention that his constitutional right to due process
has been impaired when the anti-subversion charges filed against him with the military
commission were not investigated preliminarily in accordance with Section 5 of the AntiSubversion Act, but in the manner prescribed by Presidential Decree No. 39, as amended
by Presidential Decree No. 77. It is asserted that under the aforesaid Presidential
Decrees, he is precluded from cross-examining the prosecution witnesses and from being

assisted by counsel. Contrary to petitioner's contention, Section 1[b] of Presidential

Decree No. 77 specifically grants him the right to counsel, and Presidential Decree No.
328 amended Presidential Decree No. 39, precisely to secure the substantial rights of the
accused by granting him the right to counsel during preliminary investigation. Under
Section 5 of Republic Act No. 1700, the accused shall have the right "to cross-examine
witnesses against him" and in case the offense is penalized by prision mayor to death,
the preliminary investigation shall be conducted by the proper Court of First Instance. As
to whether or not the denial to an accused of an opportunity to cross-examine the
witnesses against him in the preliminary investigation constitutes an infringement of his
right to due process, We have to advert to certain basic principles. The Constitution
"does not require the holding of preliminary investigations. The right exists only, if and
when created by statute." 20 It is "not an essential part of due process of law." 21 The
absence thereof does not impair the validity of a criminal information or affect the
jurisdiction of the court over the case. 22 As a creation of the statute it can, therefore, be
modified or amended by law.
It is also evident that there is no curtailment of the constitutional right of an accused
person when he is not given the opportunity to "cross-examine the witnesses presented
against him in the preliminary investigation before his arrest, this being a matter that
depends on the sound discretion of the Judge or investigating officer concerned."23
Speaking for the Court, Justice Tuason, in Bustos v. Lucero,
extensively, thus: t.hqw

24

discussed the matter

As applied to criminal law, substantive law is that which declares what acts
are crimes and prescribes the punishment for committing them, as
distinguished from the procedural law which provides or regulates the steps
by which one who commits a crime is to be punished. (22 C.J.S., 49.)
Preliminary investigation is eminently and essentially remedial; it is the first
step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence
which is 'the mode and manner of proving the competent facts and
circumstances on which a party relies to establish the fact in dispute in
judicial proceedings' is identified with and forms part of the method by
which, in private law, rights are enforced and redress obtained, and, in
criminal law, a law transgressor is punished. Criminal procedure refers to
pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La.,
462.) The entire rules of evidence have been incorporated into the Rules of
Court. We can not tear down section 11 of Rule 108 on constitutional grounds
without throwing out the whole code of evidence embodied in these Rules.
In Beazeil vs. Ohio, 269 U.S., 167, 70 Law. ed., 216, the United States
Supreme Court said: t.hqw

'Expressions are to be found in earlier judicial opinions to the

effect that the constitutional limitation may be transgressed by
alterations in the rules of evidence or procedure. See Calder Bull,
3 Dall 386, 390. 1 L. ed., 648, 650; Cummings vs. Missouri, 4
Wall. 277, 326, 18 L. ed., 356, 364; Kring Missouri, 107 U.S. 221,
228, 232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep. 443. And there
may be procedural changes which operate to deny to the
accused a defense available under the laws in force at the time
of the commission of his offense, or which otherwise affect him in
such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U.S., 221, 27 L.
ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 US 343;
42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now well settled
that statutory changes in the mode of trial or the rules of
evidence, which do not deprive the accused of a defense and
which operate only in a limited and unsubstantial manner to his
disadvantage, are not prohibited. A statute which, after
indictment, enlarges the class of persons who may be witnesses
at the trial, by removing the disqualification of persons convicted
of felony, is not an ex post facto law. Hopt vs. Utah, 110 U.S.,
575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202. 4 Am. Crime Rep 417.
Nor is a statute which changes the rules of evidence after the
indictment so as to render admissible against the accused
evidence previously held inadmissible, Thompson Missouri, 171
U.S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep. 922; or which changes
the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or
which abolishes a court for hearing criminal appeals, creating a
new one in its stead. See Duncan vs. Missouri, 152 U.S., 377,
382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570.'
Tested by this standard, we do not believe that the curtailment of the right of
an accused in a preliminary investigation to cross-examine the witness who
had given evidence for his arrest is of such importance as to offend against
the constitutional inhibition. As we have said in the beginning, preliminary
investigation is not an essential part of due process of law. It may be
suppressed entirely, and if this may be done, mere restriction of the privilege
formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition.
In rejecting the contention of the political offenders accused in the People's Court that
their constitutional right to equal protection of the laws was impaired because they were
denied preliminary examination and investigation, whereas the others who may be
accused of the same crimes in the Court of First Instance shall be entitled thereto, this
Court said: t.hqw

(2) Section 22 in denying preliminary investigation to persons accused before

the People's Court is justified by the conditions prevailing when the law was
enacted. In view of the great number of prisoners then under detention and
the length of time and amount of labor that would be consumed if so many
prisoners were allowed the right to have preliminary investigation,
considered with the necessity of disposing of these cases at the earliest
possible dates in the interest of the public and of the accused themselves, it
was not an unwise measure which dispensed with such investigation in such
cases. Preliminary investigation, it must be remembered, is not a
fundamental right guaranteed by the Constitution. For the rest, the
constitutional prohibition against discrimination among defendants placed in
the same situation and condition is not infringed. 25
It was realized that the procedure prescribed in Republic Act No. 5180 granting the
complainant and respondent in a preliminary investigation the right to cross-examine
each other and their witnesses was "time consuming and not conducive to the
expeditious administration of justice". Hence, it was found necessary in Presidential
Decree No. 77 to simplify the procedure of preliminary investigation to conform to its
summary character, by eliminating the cross-examination by the contending parties of
their respective witnesses which in the past had made the proceeding the occasion for
the full and exhaustive display of parties' evidence. The procedure prescribed in the
aforecited decrees appears justified by the necessity of disposing cases during martial
law, especially those affecting national security, at the earliest date. On the basis of the
aforestated settled principles, the curtailment of the right of an accused to crossexamine the witnesses against him in the preliminary investigation does not impair any
constitutional right. It may be relevant to note that recently in Litton, et al. v. Castillo, et
al., 26 this Court denied for lack of merit a petition challenging the validity of Presidential
Decree No. 77 issued on December 6, 1972, on the ground that aforesaid decree now
"forms part of the law of the land."
V
PERPETUATION OF TESTIMONY
Petitioner claims that the order of the Military Commission for the perpetuation of the
testimony of prosecution witnesses is void because no copy of the petition was
previously served on him. He asserts that, as a consequence, he was not given the
opportunity to contest the propriety of the taking of the deposition of the witnesses. It
must be noted that petitioner does not dispute respondents' claim that on March 14,
1975, he knew of the order allowing the taking of the deposition of prosecution witnesses
on March 31, to continue through April 1 to 4, 1975.
The provisions of Presidential Decree No. 328, dated October 31, 1973, for the
conditional examination of prosecution witnesses before trial, is similar to the provisions

of Section 7 of Rule 119 of the Revised Rules of Court. Presidential Decree No. 328
provides: t.hqw
Where, upon proper application, it shall satisfactorily appear to the military
tribunal before which a case is pending, that a witness for the prosecution or
the defense is too sick or infirm to appear at the trial, or has to leave the
Philippines with no definite date of returning thereto, or where delay in the
taking of its testimony may result in the failure of justice or adversely affect
national security, the witness may forthwith be examined and his deposition
immediately taken, such examination to be by question and answer, in the
presence of the other party, or even in the latter's absence provided
thatreasonable notice to attend the examination or the taking of the
deposition has been served upon him, and will be conducted in the same
manner as an examination, at the trial, in which latter event the failure or
refusal to attend the examination or the taking of the deposition shall be
considered a waiver. (Emphasis supplied.)
Section 7 of Rule 119 of the Revised Rules provides: t.hqw
Deposition of witness for the prosecution. Where, however, it shall
satisfactorily appear that the witness cannot procure bail, or is too sick or
infirm to appear at the trial, as directed by the order of the court, or has to
leave the Philippines with no definite date of returning thereto, he may
forthwith be conditionally examined or his deposition immediately taken.
Such examination or deposition must be by question and answer, in the
presence of the defendant or after reasonable notice to attend the
examination or the taking of the deposition has been served on him, and will
be conducted in the same manner as an examination at the trial. Failure or
refusal on the part of the defendant to attend the examination or the taking
of the deposition after notice hereinbefore provided, shall be considered a
waiver. The statement or deposition of the witness thus taken may be
admitted in behalf of or against the defendant. His testimony taken, the
witness must thereupon be discharged, if he has been detained.
The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of
Court, with the difference, among others, that the phrase "or after one hour notice" in
the old Rules of Court has been changed to "or after reasonable notice" in the Revised
Rules of Court.
In Elago v. People, 27 this Court, in rejecting the contention that no written motion was
filed by the prosecuting attorney for the taking of the depositions and that less than one
hour notice has been given the defendant, held that "the one-hour notice mentioned in
Section 7, Rule 115, of the Rules of Court, was intended by law mainly to give the
defendant time to attend the taking of a deposition and not to prepare for the taking
thereof because in reality there is no need for preparation. It is not a trial where the

defendant has to introduce his evidence. It is only taking down the statements of the
witnesses for the prosecution with opportunity on the part of the defendant to crossexamine them."
The thrust of Elago is that the order of the court authorizing the taking of the deposition
of the witnesses of the prosecution and fixing the date and time thereof is the one that
must be served on the accused within a reasonable time prior to that fixed for the
examination of the witnesses so that the accused may be present and cross-examine the
witness. On this point of the time given the defendant to attend the taking of the
deposition, Professor Wigmore has the following to say: t.hqw
The opportunity of cross-examination involves two elements:
(1) Notice to the opponent that the deposition is to be taken at the time and
place specified, and
(2) A sufficient interval of time to prepare for examination and to reach the
place.
xxx xxx xxx
(2) The requirements as to the interval of time are now everywhere regulated
by statute .... ; the rulings in regard to the sufficiency of time are thus so
dependent on the interpretation of the detailed prescriptions of the local
statutes that it would be impracticable to examine them here. But whether or
not the time allowed was supposedly insufficient or was precisely the time
required by statute, theactual attendance of the party obviate any objection
upon the ground of insufficiency, because then the party has actually had
that opportunity of cross-examination ... for the sole sake of which the notice
was required. 28
We, therefore, hold that the taking of the testimony or deposition was proper and valid.
VI
WAIVER OF PETITIONER'S PRESENCE
There is conflict among the authorities as to whether an accused can waive his right to
be present at his trial. Some courts have regarded the presence of the accused at his
trial for felony as a jurisdictional requirement, which cannot be waived. 29 Many others do
not accept this view. 30 In defense of the first view, it has been stated that the public has
an interest in the life and liberty of an accused and that which the law considers
essential in a trial cannot be waived by the accused. 31 In support of the latter view, it
has been argued that the right is essentially for the benefit of the accused, 32 and that
"since the accused, by pleading guilty, can waive any trial at all, he should be able to

waive any mere privilege on the trial that is designated only to aid him in shielding
himself from such result." 33
In this jurisdiction, this Court, in People v. Avancea, 34 traced the history of the
constitutional right of the accused to be present at his trial from U.S. v.
Karelsen 35 and U.S. v. Bello 36 Diaz v. United States 37 and People v. Francisco. 38 In the
first two cases, it was ruled that one whose life or liberty is involved in the prosecution
for felony must be personally present at every stage of the trial when his substantive
rights may be affected by the proceedings and that it is not within his power to waive the
right to be personally present. In Diaz v. United States and People v. Francisco, this rule
was modified. Upon the authority of the Diaz and Francisco cases, the Court laid down as
the law in this jurisdiction that: (1) in cases of felony, the accused has the right to be
present at every stage of the trial, inclusive of the arraignment and pronouncement of
the judgment; (2) where the offense is capital the right of the accused to be present at
every stage of the trial is indispensable and cannot be waived; (3) even in felonies not
capital, if the accused is in custody, his right to be present at every stage of the trial is
likewise indispensable and cannot be waived; (4) where the offense is not capital and the
accused is not in custody his presence is indispensable only: (a) at the arraignment; (b)
at the time the plea is taken, if it be one of guilt; and (c) at the pronouncement of
judgment. The Court looted the rationale of Diaz v. United States as basis of its ruling,
thus: t.hqw
... the court was called upon to pass on the question whether the provision in
section 5 of the Philippine Civil Government Act, securing to the accused in
all criminal prosecutions 'the right to be heard by himself and counsel,'
makes his presence indispensable at every stage of the trial, or invests him
with a right which he is always free to assert, but which he also may waive
by his voluntary act. After observing that an identical or similar provision is
found in the constitutions of the several states of the American Union, and
that its substantial equivalent is embodied in the 6th Amendment to the
Constitution of the United States; that it is the right which these
constitutional provisions secure to persons accused of crime in that country
that was carried here by the congressional enactment; and that, therefore,
according to a familiar rule, the prevailing course of decision there may and
should be accepted as determinative of the nature and measure of the right
here, Justice Van Devanter speaking for the court, said: 'As the offense in this
instance was a felony, we may put out of view the decisions dealing with this
right in cases of misdemeanor. In cases of felony our courts, with substantial
accord, have regarded it as extending to every stage of the trial, inclusive of
the empaneling of the jury and the reception of the verdict, and as being
scarcely less important to the accused than the right of trial itself. And with
like accord they have regarded an accused who is in custody and one who is
charged with a capital offense as incapable of waiving the right; the one,
because his presence or absence is not within his own control; and the other
because, in addition to being usually in custody, he is deemed to suffer the

constraint naturally incident to an apprehension of the lawful penalty that

would follow conviction. But, where the offense is not capital and the
accused is not in custody, the prevailing rule has been, that if, after the trial
has begun in his presence, he voluntarily absents himself, this does not
nullify what has been done or prevent the completion of the trial, but, on the
contrary, operates as a waiver of his right to be present, and leaves the court
free to proceed with the trial in like manner and with like effect as if he were
present.'39
In Avancea, the issue was whether the defendant charged with an offense which is not
capital had impliedly waived his right to be present at his trial, because of his failure to
appear in court at the trial of his case.
Under the present Constitution, however, trial even of a capital offense may proceed
notwithstanding the absence of the accused. It is now provided that "after arraignment,
trial may proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustified." 40
On the basis of the aforecited provision of the Constitution which allows trial of an
accused in absentia, the issue has been raised whether or not petitioner could waive his
right to be present at the perpetuation of testimony proceedings before respondent
Commission..
As a general rule, subject to certain exceptions, any constitutional or statutory right may
be waived if such waiver is not against public policy. The personal presence of the
accused from the beginning to the end of a trial for felony, involving his life and liberty,
has been considered necessary and vital to the proper conduct of his defense. The "trend
of modern authority is in favor of the doctrine that a party in a criminal case may waive
irregularities and rights, whether constitutional or statutory, very much the same as in a
civil case." 41
There are, for instance, certain rights secured to the individual by the fundamental
charter which may be the subject of waiver. The rights of an accused to defend himself in
person and by attorney, to be informed of the nature and cause of the accusation, to a
speedy and public trial, and to meet the witnesses face to face, as well as the right
against unreasonable searches and seizures, are rights guaranteed by the Constitution.
They are rights necessary either because of the requirements of due process to ensure a
fair and impartial trial, or of the need of protecting the individual from the exercise of
arbitrary power. And yet, there is no question that all of these rights may be
waived. 42 Considering the aforecited provisions of the Constitution and the absence of
any law specifically requiring his presence at all stages of his trial, there appears,
therefore, no logical reason why petitioner, although he is charged with a capital offense,
should be precluded from waiving his right to be present in the proceedings for the
perpetuation of testimony, since this right, like the others aforestated, was conferred
upon him for his protection and benefit.

It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court
(Deposition of witness for the prosecution) the "Failure or refusal on the part of the
defendant to attend the examination or the taking of the deposition after notice
hereinbefore provided, shall be considered a waiver" (Emphasis supplied.) Similarly,
Presidential Decree No. 328 expressly provides that " ... the failure or refusal to attend
the examination or the taking of the deposition shall be considered a waiver." (Emphasis
supplied).
It is for the foregoing reasons that the writer of this opinion voted with the six (6) Justices
who ruled on the full right of petitioner to waive his presence at said proceedings..
Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and
Aquino) are of the view that petitioner may waive his right to be present at all stages of
the proceedings while five (5) Justices (Castro, Makasiar, Esguerra, Concepcion Jr. and
Martin) are in agreement that he may so waive such right, except when he is to be
identified, the result is that the respondent Commission's Order requiring his presence at
all times during the proceedings before it should be modified, in the sense that
petitioner's presence shall be required only in the instance just indicated. The ruling
in People v. Avancea 43 is thus pro tanto modified.
Finally, it is insisted that even if said orders and decrees were valid as martial law
measures, they have ceased to be so upon the termination of the emergency. In Aquino,
et al. v. Enrile, et al., supra, We adverted to the fact that the communist rebellion which
impelled the proclamation of martial law has not abated. In the absence of any official
proclamation by the President of the cessation of the public emergency, We have no
basis to conclude that the rebellion and communist subversion which compelled the
declaration of martial law, no longer pose a danger to public safety.
It is important to note here that an accused being tried before a military tribunal enjoys
the specific constitutional safeguards pertaining to criminal trials. Thus, he is entitled to
be heard by himself and counsel, 44 to be informed of the nature and cause of the
accusation, 45 to meet the witnesses face to face, to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf, 46 and to be
exempt from being a witness against himself. As in trial before civil courts, the
presumption of innocence can only be overcome by evidence beyond reasonable doubt
of the guilt of the accused. 47 These tribunals, in general, are "bound to observe the
fundamental rules of law and principles of justice observed and expounded by the civil
judicature." 48 Section 11 of the Manual for Courts-Martial specifically provides that the
"rules of evidence generally recognized in the trial of criminal cases in the courts of the
Philippines shall be applied by courts-martial." 49 This is applicable to trials in the military
commission . 50 There is, therefore, no justification for petitioner's contention that such
military tribunals are concerned primarily with the conviction of an accused and that
proceedings therein involve the complete destruction and abolition of petitioner's
constitutional rights. This is not, however, to preclude the President from considering the

advisability of the transfer of these cases to the civil courts, as he has previously
announced.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions
for prohibition with preliminary injunction and setting aside the temporary restraining
order issued on April 8, 1975, with costs against petitioner.
Aquino, Concepcion, Jr. and Martin, JJ., concur.1wph1.t
Makalintal, C.J, took no part.

219. Olaguer v Military Commission

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-54558 May 22, 1987
EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS
LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-MACLANG,
TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO R. DE OCAMPO,
VICTORIANO C. AMADO and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION
NO. 34, and THE MINISTER OF NATIONAL DEFENSE, respondents.
No. L-69882 May 22, 1987
EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER
MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE
GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF
PRISONS, respondents.
Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.
Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang
Rene Saguisag for petitioner Mac Aceron.
Joaquin Misa for petitioner Ester Misa-Jimenez.
Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-Maclang.
Jaime Villanueua for petitioner Danilo R. de Ocampo.
Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo Olaguer
and Othoniel Jimenez.
Wigberto Tanada for petitioners Olaguer and Maclang

GANCAYCO, J.:

Filed with this Court are two Petitions wherein the fundamental question is whether or
not a military tribunal has the jurisdiction to try civilians while the civil courts are open
and functioning. The two Petitions have been consolidated inasmuch as the issues raised
therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez,
Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos
Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and Victoriano C.
Amado were arrested by the military authorities. They were all initially detained at Camp
Crame in Quezon City. They were subsequently transferred to the detention center at
Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention
at Camp Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities
sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa. All
of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the
recommendation of the respondent Judge Advocate General and the approval of the
respondent Minister of National Defense. 2 The case was designated as Criminal Case No.
MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the
Philippines 3 created the respondent Military Commission No 34 to try tile criminal case
filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed for
seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices;
(2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate
cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy
to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine
buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and
Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit
rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued.
In the course of the proceedings, particularly on August 19, 1980, the petitioners went to
this Court and filed the instant Petition for prohibition and habeas corpus." 6 They sought
to enjoin the respondent Military Commission No. 34 from proceeding with the trial of
their case. They likewise sought their release from detention by way of a writ of habeas
corpus. The thrust of their arguments is that military commissions have no jurisdiction to
try civilians for offenses alleged to have been committed during the period of martial
law. They also maintain that the proceedings before the respondent Military Commission
No. 34 are in gross violation of their constitutional right to due process of law.
On September 23, 1980, the respondents filed their Answer to the Petition. 7 On
November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion
filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be
considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated

July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents
filed a Rejoinder to the Reply submitted by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent Military
Commission No. 34 passed sentence convicting the petitioners and imposed upon them
the penalty of death by electrocution. Thus, on February 14, 1985, petitioners Olaguer,
Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant
Petition, this time for habeas corpus, certiorari, prohibition and mandamus. They also
sought the issuance of a writ of preliminary injunction. 12 The respondents named in the
Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission
No. 34, the Judge Advocate General, the Minister of National Defense and the Director of
the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking any further
action on the case against the petitioners, and from implementing the judgment of
conviction rendered by the respondent Military Commission No. 34 for the reason that
the same is null and void. The petitioners also seek the return of all property taken from
them by the respondents concerned. Their other arguments in the earlier Petition are
stressed anew.
On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September
12, 1985, this Court issued a temporary restraining order enjoining the respondents from
executing the Decision of the respondent Military Commission No. 34 14 On February 18,
1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due time, the
cases were submitted for decision.
In resolving these two Petitions, We have taken into account several supervening events
which have occurred hitherto, to wit
(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation
No. 2045 officially lifting martial law in the Philippines. The same
Proclamation revoked General Order No. 8 (creating military tribunals) and
directed that "the military tribunals created pursuant thereto are hereby
dissolved upon final determination of case's pending therein which may not
be transferred to the civil courts without irreparable prejudice to the state in
view of the rules on double jeopardy, or other circumstances which render
prosecution of the cases difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January,
1981. On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez
obtained provisional liberty on January 23, 1986. 16 The rest of the
petitioners have been released sometime before or after President Corazon
C. Aquino assumed office in February, 1986.

The sole issue in habeas corpus proceedings is detention. 17 When the release of the
persons in whose behalf the application for a writ of habeas corpus was filed is effected,
the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as
the herein petitioners have been released from their confinement in military detention
centers, the instant Petitions for the issuance of a writ of habeas corpus should be
dismissed for having become moot and academic.
We come now to the other matters raised in the two Petitions. The main issue raised by
the petitioners is whether or not military commissions or tribunals have the jurisdiction
to try civilians for offenses allegedly committed during martial law when civil courts are
open and functioning.
The petitioners maintain that military commissions or tribunals do not have such
jurisdiction and that the proceedings before the respondent Military Commission No. 34
are in gross violation of their constitutional right to due process of law. The respondents,
however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians for
offenses allegedly committed before, and more particularly during a period of martial
law, as well as the other issues raised by the petitioners, have been ruled upon by a
divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent
portions of the main opinion of the Court are as follows
We hold that the respondent Military Commission No. 2 has been lawfully constituted and
validly vested with jurisdiction to hear the cases against civilians, including the
petitioner.
l. The Court has previously declared that the proclamation of Martial Law ...
on September 21, 1972, ... is valid and constitutional and that its
continuance is justified by the danger posed to the public safety. 20
2. To preserve the safety of the nation in times of national peril, the President
of the Philippines necessarily possesses broad authority compatible with the
imperative requirements of the emergency. On the basis of this, he has
authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the
Philippines, to create military tribunals to try and decide cases "of military
personnel and such other cases as may be referred to them." In General
Order No. 12 ... , the military tribunals were vested with jurisdiction
"exclusive of the civil courts," among others, over crimes against public
order, violations of the Anti-Subversion Act, violations of the laws on
firearms, and other crimes which, in the face of the emergency, are directly
related to the quelling of the rebellion and preservation of the safety and
security of the Republic. ... These measures he had the authority to
promulgate, since this Court recognized that the incumbent President
(President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of

the new (1973) Constitution, had the authority to "promulgate

proclamations, orders and decrees during the period of martial law essential
to the security and preservation of the Republic, to the defense of the
political and social liberties of the people and to the institution of reforms to
prevent the resurgence of the rebellion or insurrection or secession or the
threat thereof ... " 21
3. Petitioner nevertheless insists that he being a civilian, his trial by military
commission deprives him of his right to due process, since in his view the
due process guaranteed by the Constitution to persons accused of "ordinary"
crimes means judicial process. This argument ignores the reality of the
rebellion and the existence of martial law. It is, of course, essential that in a
martial law situation, the martial law administrator must have ample and
sufficient means to quell the rebellion and restore civil order. Prompt and
effective trial and punishment of offenders have been considered as
necessary in a state of martial law, as a mere power of detention may be
wholly inadequate for the exigency. 22 " ... martial law ... creates an exception
to the general rule of exclusive subjection to the civil jurisdiction, and
renders offenses against the law of war, as well as those of a civil character,
triable, ... by military tribunals. 23 "Public danger warrants the substitution of
executive process for judicial process." 24 . ... "The immunity of civilians from
military jurisdiction must, however, give way in areas governed by martial
law. When it is absolutely imperative for public safety, legal processes can be
superseded and military tribunals authorized to exercise the jurisdiction
normally vested in courts. 25 . ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form
of tribunal in criminal cases. A military tribunal of competent jurisdiction,
accusation in due form, notice and opportunity to defend and trial before an
impartial tribunal, adequately meet the due process requirement. Due
process of law does not necessarily mean a judicial proceeding in the regular
courts. 26 ...
This ruling has been affirmed, although not unanimously, in at least six other cases, to
wit: Gumaua v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military
Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 and Buscayno v. Military
Commission Nos. 1, 2, 6 and 25. 32
These rulings notwithstanding, the petitioners anchor their argument on their prayer that
the ruling in Aquino, Jr. be appraised anew and abandoned or modified accordingly. After
a thorough deliberation on the matter, We find cogent basis for re-examining the same.

Some recent pronouncements of this Court could be considered as attempts to either

abandon or modify the ruling in Aquino, Jr.
In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the
Philippines and several other persons were charged with Serious Illegal Detention before
the Court of First Instance of Maguindanao sometime in October, 1982. The military
officer sought to effect the transfer of the case against him to the General Court Martial
for trial pursuant to the provisions of Presidential Decree No. 1850. The trial court
disallowed such transfer for the reason that the said Decree is unconstitutional inasmuch
as it violates the due process and equal protection clauses of the Constitution, as well as
the constitutional provisions on social justice, the speedy disposition of cases, the
republican form of government, the integrity and independence of the judiciary, and the
supremacy of civilian authority over the military,
When the matter was elevated to this Court by way of a Petition for certiorari, prohibition
and mandamus, the Court decided that a ruling on the constitutional issues raised was
not necessary. With the view that practical and procedural difficulties will result from the
transfer sought, this Court resolved to dismiss the Petition for lack of merit.
In Animas v. The Minister of National Defense, 34 a military officer and several civilians
were charged with murder alleged to have been committed sometime in November,
1971. All of the said accused were recommended for prosecution before a military
tribunal. in the course of the proceedings, the said accused went to this Court on a
Petition for certiorari and challenged the jurisdiction of the military tribunal over their
case. The petitioners contended that General Order No. 59 upon which the jurisdiction of
the military tribunal is anchored refers only to the crime of illegal possession of firearms
and explosives in relation to other crimes committed with a political complexion. They
stressed that the alleged murder was devoid of any political complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the
criminal proceedings to the civil courts after noting that with martial law having been
lifted in the country in 1981, all cases pending before the military tribunals should, as a
general rule, be transferred to the civil courts. The Court was also of the view that the
crime alleged to have been committed did not have any political complexion. We quote
the pertinent portions of the Decision of the Court, to wit
Inspite or because of the ambiguous nature of ... civilian takeover of
jurisdiction was concerned and notwithstanding the shilly-shallying and
vacillation characteristic of its implementation, this Court relied on the
enunciated policy of normalization in upholding the primacy of civil courts.
This policy meant that as many cases as possible involving civilians being
tried by military tribunals as could be transferred to civil courts should be
turned over immediately. In case of doubt, the presumption was in favor of
civil courts always trying civilian accused.

xxx xxx xxx

The crime for which the petitioners were charged was committed ... long
before the proclamation of martial law. ... Now that it is already late 1986,
and martial law is a thing of the past, hopefully never more to return, there is
no more reason why a murder committed in 1971 should still be retained, at
this time, by a military tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio
Teehankee 35 and Madame Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they
hold that military commissions or tribunals have no jurisdiction to try civilians for alleged
offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the accused stands
to lose either his life or his liberty), the accused shall be entitled to, among others, a
trial. 37 The trial contemplated by the due process clause of the Constitution, in relation
to the Charter as a whole, is a trial by judicial process, not by executive or military
process. Military commissions or tribunals, by whatever name they are called, are not
courts within the Philippine judicial system. As explained by Justice Teehankee in his
separate dissenting opinion... Civilians like (the) petitioner placed on trial for civil offenses under general
law are entitled to trial by judicial process, not by executive or military
process.
Judicial power is vested by the Constitution exclusively in the Supreme Court
and in such inferior courts as are duly established by law. Judicial power
exists only in the courts, which have "exclusive power to hear and determine
those matters which affect the life or liberty or property of a citizen. 38
Since we are not enemy-occupied territory nor are we under a military
government and even on the premise that martial law continues in force, the
military tribunals cannot try and exercise jurisdiction over civilians for civil
offenses committed by them which are properly cognizable by the civil
courts that have remained open and have been regularly functioning. 39 ...
And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the
assertion of military authority over civilians cannot rest on the President's
power as Commander-in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army
veterans (estimated to number more than 22.5 million) could not be
rendered "helpless before some latter-day revival of old military charges"
and subjected to military trials for offenses committed while they were in the

military service prior to their discharge, that "the presiding officer at a court
martial is not a judge whose objectivity and independence are protected by
tenure and undiminished salary and nurtured by the judicial tradition, but is
a military law officer. Substantially different rules of evidence and procedure
apply in military trials. Apart from these differences, the suggestion of the
possibility of influence on the actions of the court martial by the officer who
convenes it, selects its members and the counsel on both sides, and who
usually has direct command authority over its members is a pervasive one in
military law, despite strenuous efforts to eliminate the danger."
The late Justice Black ... added that (A) Court-Martial is not yet an
independent instrument of justice but remains to a significant degree a
specialized part of the over-all mechanism by which military discipline is
preserved," and that ex-servicemen should be given "the benefits of a
civilian court trial when they are actually civilians ... Free countries of the
world have tried to restrict military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining discipline among troops in active
service.
Moreover, military tribunals pertain to the Executive Department of the Government and
are simply instrumentalities of the executive power, provided by the legislature for the
President as Commander-in-Chief to aid him in properly commanding the army and navy
and enforcing discipline therein, and utilized under his orders or those of his authorized
military representatives. 41 Following the principle of separation of powers underlying the
existing constitutional organization of the Government of the Philippines, the power and
the duty of interpreting the laws as when an individual should be considered to have
violated the law) is primarily a function of the judiciary. 42 It is not, and it cannot be the
function of the Executive Department, through the military authorities. And as long as
the civil courts in the land remain open and are regularly functioning, as they do so
today and as they did during the period of martial law in the country, military tribunals
cannot try and exercise jurisdiction over civilians for offenses committed by them and
which are properly cognizable by the civil courts. 43 To have it otherwise would be a
violation of the constitutional right to due process of the civilian concerned.
In addition to this pronouncement, We take note of the observation made by the Solicitor
General to the effect that the death penalty imposed upon the petitioners by the
respondent Military Commission No. 34 appears to have been rendered too hastily to the
prejudice to the petitioners, and in complete disregard of their constitutional right to
adduce evidence on their behalf. We quote the pertinent portions of the Manifestation
submitted by the Solicitor General, to wit
Prior to the session of December 4, 1984, when the respondent Commission
rendered its sentence, petitioners have requested the prosecution to provide
them with copies of the complete record of trial, including the evidences
presented against them, but the prosecution dillydallied and failed to provide

them with the document requested. According to petitioners, they needed

the documents to adequately prepare for their defense.
But a few days before December 4, 1984 the prosecution suddenly furnished
them with certain transcripts of the proceedings which were not complete.
Petitioner Othoniel Jimenez was scheduled to start with the presentation of
his evidence on said date and he requested that his first witness be served
with subpoena. The other petitioners, as agreed upon, were to present their
evidence after the first one, Othoniel Jimenez, has finished presenting his
evidence. But on that fateful day, December 4, 1984, the witness requested
to be served with subpoena was not around, because as shown by the
records, he was not even served with the requested subpoena. But in spite of
that, respondent Military Commission proceeded to ask each one of the
petitioners if they are ready to present their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because the
prosecution, which performs the duties and functions of clerk of court, failed
to subpoena his witness, and that the other petitioners were not ready
because it was not yet their turn to do so, the Commission abruptly decided
that petitioners are deemed to have waived the presentation of evidence in
their behalf, and considered the case submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and
the Commission rendered its sentence finding petitioners guilty of all the
charges against them and imposing upon them the penalty of death by
electrocution. 44
Thus, even assuming arguendo that the respondent Military Commission No. 34 does
have the jurisdiction to try the petitioners, the Commission should be deemed ousted of
its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in
disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a
deprivation of a constitutional right is shown to exist, the tribunal that rendered the
judgment in question is deemed ousted of jurisdiction. 45
Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting
martial law in the Philippines and abolishing all military tribunals created pursuant to the
national emergency effectively divests the respondent Military Commission No. 34 (and
all military tribunals for that matter) of its supposed authority to try civilians, including
the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the
jurisdiction to try civilians as long as the period of national emergency (brought about by
public disorder and similar causes) lasts. Undoubtedly, Proclamation No. 2045 is an
acknowledgment on the part of the Executive Department of the Government that the
national emergency no longer exists. Thereafter, following the theory relied upon in the

main opinion, all military tribunals should henceforth be considered functus officio in
their relationship with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein should
eventually be transferred to the civil courts for proper disposition. The principle of double
jeopardy would not be an obstacle to such transfer because an indispensable element of
double jeopardy is that the first tribunal which tried the case must be of competent
jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the required
jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land are open
and functioning, military tribunals cannot try and exercise jurisdiction over civilians for
offenses committed by them. Whether or not martial law has been proclaimed
throughout the country or over a part thereof is of no moment. The imprimatur for this
observation is found in Section 18, Article VII of the 1987 Constitution, to wit
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. (Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the Filipino
people towards the restoration of the vital role of the judiciary in a free country-that of
the guardian of the Constitution and the dispenser of justice without fear or favor.
No longer should military tribunals or commissions exercise jurisdiction over civilians for
offenses allegedly committed by them when the civil courts are open and functioning. No
longer may the exclusive judicial power of the civil courts, beginning with the Supreme
Court down to the lower courts 47 be appropriate by any military body or tribunal, or even
diluted under the guise of a state of martial law, national security and other similar
labels.
At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of
Mr. Justice Gutierrez inAnimas v. The Minister of National Defense , 48 viz
The jurisdiction given to military tribunals over common crimes and
civilian(s) accused at a time when all civil courts were fully operational and
freely functioning constitutes one of the saddest chapters in the history of
the Philippine judiciary.
The downgrading of judicial prestige caused by the glorification of military
tribunals, the instability and insecurity felt by many members of the judiciary
due to various causes both real and imagined, and the many judicial
problems spawned by extended authoritarian rule which effectively eroded

judicial independence and self-respect will require plenty of time and

determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to
them is only a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to
say
I only wish to add that the great significance of our judgment in this case is
that we reestablish and reinstate the fundamental principle based on civilian
supremacy over the military as urged in vain in my dissent in the case
of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians
placed on trial for offenses under general law are entitled to trial by judicial
process, not by executive or military process. Judicial power is vested by the
Constitution exclusively in the Supreme Court and in such inferior courts as
are duly established by law. Military commissions, or tribunals, are not courts
and do not form part of the judicial system. Since we are not enemyoccupied territory nor are we under a military government and even on the
premise that martial law continues in force, the military tribunals cannot try
and exercise jurisdiction over civilians for civil offenses committed by them
which are properly cognizable by the civil courts that have remained open
and have been regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process is
best exemplified in the sham military trial of the martyred former Senator
Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex parte
investigation by the Chief prosecution staff of the JAGO of his right to be
informed of the charges against him and of his right to counsel as expressly
recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of
his vested statutory right to a preliminary investigation of the subversion
charges against him before the proper court of first instance as required
under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other
charges against him before the proper civilian officials and to confront and
cross-examine the witnesses against him under R.A. 5180; (3) of the right to
be tried by judicial process, by the regular independent courts of justice, with
all the specific constitutional, statutory and procedural safeguards embodied
in the judicial process and presided over not by military officers; and (4) of
the right to appeal to the regular appellate courts and to judicial review by
this Court in the event of conviction and imposition of a sentence of death or
life imprisonment which the charges carry and wherein a qualified majority of
ten (10) votes for affirmance of the death penalty is required. In fine, he was
denied due process of law as guaranteed under the Bill of Rights which

further ordains that "No person shall be held to answer for a criminal offense
without due process of law."Worse, his trial by a military tribunal created by
the then President and composed of the said President's own military
subordinates without tenure and of non-lawyers (except the law member)
and of whose decision the President is the final reviewing authority as
Commander-in-Chief of the Armed Forces deprived him of a basic
constitutional right to be heard by a fair and impartial tribunal, considering
that the said President had publicly declared the evidence against petitioner
"not only strong (but) overwhelming" and thereby prejudged and
predetermined his guilt, and none of his military subordinates could be
expected to go against their Commander-in-Chief's declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish
past, when time-tested doctrines, to borrow a phrase from the then Chief
Justice, "shrivelled in the effulgence of the overpowering rays of martial
rule. 49
As stated earlier, We have been asked to re-examine a previous ruling of the Court with a
view towards abandoning or modifying the same. We do so now but not without careful
reflection and deliberation on Our part. Certainly, the rule of stare decisis is entitled to
respect because stability in jurisprudence is desirable. Nonetheless, reverence for
precedent, simply as precedent, cannot prevail when constitutionalism and the public
interest demand otherwise. Thus, a doctrine which should be abandoned or modified
should be abandoned or modified accordingly. After all, more important than anything
else is that this Court should be right. 50
Accordingly, it is Our considered opinion, and We so hold, that a military commission or
tribunal cannot try and exercise jurisdiction, even during the period of martial law, over
civilians for offenses allegedly committed by them as long as the civil courts are open
and functioning, and that any judgment rendered by such body relating to a civilian is
null and void for lack of jurisdiction on the part of the military tribunal concerned. 51 For
the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 52 and
all decided cases affirming the same, in so far as they are inconsistent with this
pronouncement, should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for
having become moot and academic. The Petitions for certiorari and prohibition are
hereby GRANTED. The creation of the respondent Military Commission No. 34 to try
civilians like the petitioners is hereby declared unconstitutional and all its proceedings
are deemed null and void. The temporary restraining order issued against the
respondents enjoining them from executing the Decision of the respondent Military
Commission No. 34 is hereby made permanent and the said respondents are
permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the
petitioners. The sentence rendered by the respondent Military Commission No. 34
imposing the death penalty on the petitioners is hereby vacated for being null and void,

and all the items or properties taken from the petitioners in relation to the said criminal
case should be returned to them immediately. No pronouncement as to costs.
SO ORDERED.
Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin,
Sarmiento and Cortes, JJ., concur.
Padilla, J., took no part.

220. Guazon v De Villa

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80508 January 30, 1990
EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA,
QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA
JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA
HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA
COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS
GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA
LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA
PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL
VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA,
ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO SESPENE,
ROSA MARTIN and JAIME BONGAT, petitioners,

vs.
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN.
RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS
GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and
police officers represented by public respondents from conducting "Areal Target Zonings"
or "Saturation Drives" in Metro Manila.
The forty one (41) petitioners state that they are all of legal age, bona fide residents of
Metro Manila and taxpayers and leaders in their respective communities. They maintain
that they have a common or general interest in the preservation of the rule of law,
protection of their human rights and the reign of peace and order in their communities.
They claim to represent "the citizens of Metro Manila who have similar interests and are
so numerous that it is impracticable to bring them all before this Court."
The public respondents, represented by the Solicitor General, oppose the petition
contending inter alia that petitioners lack standing to file the instant petition for they are
not the proper parties to institute the action.
According to the petitioners, the following "saturation drives" were conducted in Metro
Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo,
Manila.
2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San
Sebastian Street, Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.
4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach
up to Happy Land, Magsaysay Village, Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street,
Tondo, Manila.
6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.

9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.

10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay
City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or saturation drives" are in critical
areas pinpointed by the military and police as places where the subversives are hiding.
The arrests range from seven (7) persons during the July 20 saturation drive in
Bangkusay, Tondo to one thousand five hundred (1,500) allegedly apprehended on
November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that
the saturation drives follow a common pattern of human rights abuses. In all these
drives, it is alleged that the following were committed:
1. Having no specific target house in mind, in the dead of the night or early
morning hours, police and military units without any search warrant or
warrant of arrest cordon an area of more than one residence and sometimes
whole barangay or areas of barangay in Metro Manila. Most of them are in
civilian clothes and without nameplates or identification cards.
2. These raiders rudely rouse residents from their sleep by banging on the
walls and windows of their homes, shouting, kicking their doors open
(destroying some in the process), and then ordering the residents within to
come out of their respective residences.
3. The residents at the point of high-powered guns are herded like cows, the
men are ordered to strip down to their briefs and examined for tattoo marks
and other imagined marks.
4. While the examination of the bodies of the men are being conducted by
the raiders, some of the members of the raiding team force their way into
each and every house within the cordoned off area and then proceed to
conduct search of the said houses without civilian witnesses from the
neighborhood.
5. In many instances, many residents have complained that the raiders
ransack their homes, tossing about the residents' belongings without total
regard for their value. In several instances, walls are destroyed, ceilings are
damaged in the raiders' illegal effort to 'fish' for incriminating evidence.
6. Some victims of these illegal operations have complained with increasing
frequency that their money and valuables have disappeared after the said
operations.

7. All men and some women who respond to these illegal and unwelcome
intrusions are arrested on the spot and hauled off to waiting vehicles that
take them to detention centers where they are interrogated and 'verified.'
These arrests are all conducted without any warrants of arrest duly issued by
a judge, nor under the conditions that will authorize warrantless arrest. Some
hooded men are used to fingerpoint suspected subversives.
8. In some instances, arrested persons are released after the expiration of
the period wherein they can be legally detained without any charge at all. In
other instances, some arrested persons are released without charge after a
few days of arbitrary detention.
9. The raiders almost always brandish their weapons and point them at the
residents during these illegal operations.
10. Many have also reported incidents of on-the-spotbeatings, maulings and
maltreatment.
11. Those who are detained for further 'verification' by the raiders are
subjected to mental and physical torture to extract confessions and tactical
information. (Rollo, pp. 2-4)
The public respondents stress two points in their Comment which was also adopted as
their Memorandum after the petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And second,
they allege that the accusations of the petitioners about a deliberate disregard for
human rights are total lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite Article
VII, Section 17 of the Constitution which provides:
The President shall have control of all the executive departments, bureaus
and offices. He shall ensure that the laws be faithfully executed. (Emphasis
supplied )
They also cite Section 18 of the same Article which provides:
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. ...
There can be no question that under ordinary circumstances, the police action of the
nature described by the petitioners would be illegal and blantantly violative of the
express guarantees of the Bill of Rights. If the military and the police must conduct
concerted campaigns to flush out and catch criminal elements, such drives must be

consistent with the constitutional and statutory rights of all the people affected by such
actions.
There is, of course, nothing in the Constitution which denies the authority of the Chief
Executive, invoked by the Solicitor General, to order police actions to stop unabated
criminality, rising lawlessness, and alarming communist activities. The Constitution
grants to Government the power to seek and cripple subversive movements which would
bring down constituted authority and substitute a regime where individual liberties are
suppressed as a matter of policy in the name of security of the State. However, all police
actions are governed by the limitations of the Bill of Rights. The Government cannot
adopt the same reprehensible methods of authoritarian systems both of the right and of
the left, the enlargement of whose spheres of influence it is trying hard to suppress. Our
democratic institutions may still be fragile but they are not in the least bit strengthened
through violations of the constitutional protections which are their distinguishing
features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:
One of the most precious rights of the citizen in a free society is the right to
be left alone in the privacy of his own house. That right has ancient roots,
dating back through the mists of history to the mighty English kings in their
fortresses of power. Even then, the lowly subject had his own castle where he
was monarch of all he surveyed. This was his humble cottage from which he
could bar his sovereign lord and all the forces of the Crown.
That right has endured through the ages albeit only in a few libertarian
regimes. Their number, regrettably, continues to dwindle against the
onslaughts of authoritarianism. We are among the fortunate few, able again
to enjoy this right after the ordeal of the past despotism. We must cherish
and protect it all the more now because it is like a prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:
SEC. 3. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall not be violated, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, 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.
xxx xxx xxx

Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation
v. Court of Appeals(164 SCRA 655; 660- 661 [1988]):
This constitutional right protects a citizen against wanton and unreasonable
invasion of his privacy and liberty as to his person, papers and effects. We
have explained in the case of People vs. Burgos(144 SCRA 1)
citing Villanueva v. Querubin (48 SCRA 345) why the right is so important:
It is deference to one's personality that lies at the core of this right, but it
could be also looked upon as a recognition of a constitutionally protected
area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v.
United States, 385 US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the choice of who shall
be welcome but likewise in the kind of objects he wants around him. There
the state, however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life. (Cf. Schmerber v. California,
384 US 757 [1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]).
In the same vein, Landynski in his authoritative work (Search and Seizure
and the Supreme Court [1966]), could fitly characterize constitutional right
as the embodiment of a spiritual concept: the belief that to value the privacy
of home and person and to afford its constitutional protection against the
long reach of government is no less than to value human dignity, and that
his privacy must not be disturbed except in case of overriding social need,
and then only under stringent procedural safeguards. (ibid, p. 74.)
The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96
L. Ed. 183 [1952]) emphasizes clearly that police actions should not be characterized by
methods that offend a sense of justice. The court ruled:
Applying these general considerations to the circumstances of the present
case, we are compelled to conclude that the proceedings by which this
conviction was obtained do more than offend some fastidious squeamishness
or private sentimentalism about combatting crime too energetically. This is
conduct that shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents this course of proceeding by
agents of government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw to permit
of constitutional differentiation.

It is significant that it is not the police action perse which is impermissible and which
should be prohibited. Rather, it is the procedure used or in the words of the court,
methods which "offend even hardened sensibilities." InBreithaupt v. Abram (352 US 432,
1 L. Ed. 2nd 448 [1957]), the same court validated the use of evidence, in this case blood
samples involuntarily taken from the petitioner, where there was nothing brutal or
offensive in the taking. The Court stated:
Basically the distinction rests on the fact that there is nothing 'brutal' or
'offensive' in the taking of a sample of blood when done, as in this case,
under the protective eye of a physician. To be sure, the driver here was
unconscious when the blood was taken, but the absence of conscious
consent, without more, does not necessarily render the taking a violation of a
constitutional light; and certainly the rest was administered here would not
be considered offensive by even the most delicate. Furthermore, due process
is not measured by the yardstick of personal reaction or the sphygmogram of
the most sensitive person, but by that whole community sense of 'decency
and fairness that has been woven by common experience into the fabric of
acceptable conduct....
The individual's right to immunity from such invasion of his body was considered as "far
outweighed by the value of its deterrent effect" on the evil sought to be avoided by the
police action.
It is clear, therefore, that the nature of the affirmative relief hinges closely on the
determination of the exact facts surrounding a particular case.
The violations of human rights alleged by the petitioners are serious. If an orderly
procedure ascertains their truth, not only a writ of prohibition but criminal prosecutions
would immediately issue as a matter of course. A persistent pattern of wholesale and
gross abuse of civil liberties, as alleged in the petition, has no place in civilized society.
On the other hand, according to the respondents, the statements made by the
petitioners are a complete lie.
The Solicitor General argues:
This a complete lie.
Just the contrary, they had been conducted with due regard to human rights.
Not only that, they were intelligently and carefully planned months ahead of
the actual operation. They were executed in coordination with barangay
officials who pleaded with their constituents to submit themselves voluntarily
for character and personal verification. Local and foreign correspondents,
who had joined these operations, witnessed and recorded the events that
transpired relative thereto. (After Operation Reports: November 5, 1987,

Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14).
That is why in all the drives so far conducted, the alleged victims who
numbered thousands had not themselves complained.
In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo,
President Aquino branded all accusations of deliberate disregard for human
rights as 'total lies'. Here are excerpts from her strongest speech yet in
support of the military:
All accusations of a deliberate disregard for human rights have been shownup to be total lies.
...To our soldiers, let me say go out and fight, fight with every assurance that
I will stand by you through thick and thin to share the blame, defend your
actions, mourn the losses and enjoy with you the final victory that I am
certain will be ours.
You and I will see this through together.
I've sworn to defend and uphold the Constitution.
We have wasted enough time answering their barkings for it is still a long
way to lasting peace. . . . The dangers and hardships to our men in the field
are great enough as it is without having them distracted by tills worthless
carping at their backs.
Our counter-insurgency policy remains the same: economic development to
pull out the roots-and military operations to slash the growth of the
insurgency.
The answer to terror is force now.
Only feats of arms can buy us the time needed to make our economic and
social initiatives bear fruit. . . Now that the extreme Right has been
defeated, I expect greater vigor in the prosecution of the war against the
communist insurgency, even as we continue to watch our backs against
attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15;
emphasis supplied)
Viewed in the light of President Aquino's observation on the matter, it can be
said that petitioners misrepresent as human rights violations the military and
police's zealous vigilance over the people's right to live in peace and safety.
(Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth. Everything before us
consists of allegations. According to the petitioners, more than 3,407 persons were

arrested in the saturation drives covered by the petition. No estimates are given for the
drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun Valley
Drive near the Manila International Airport area. Not one of the several thousand persons
treated in the illegal and inhuman manner described by the petitioners appears as a
petitioner or has come before a trial court to present the kind of evidence admissible in
courts of justice. Moreover, there must have been tens of thousands of nearby residents
who were inconvenienced in addition to the several thousand allegedly arrested. None of
those arrested has apparently been charged and none of those affected has apparently
complained.
A particularly intriguing aspect of the Solicitor General's comments is the statement that
local and foreign co-respondents actually joined the saturation drives and witnessed and
recorded the events. In other words, the activities sought to be completely proscribed
were in full view of media. The sight of hooded men allegedly being used to fingerpoint
suspected subversives would have been good television copy. If true, this was probably
effected away from the ubiquitous eye of the TV cameras or, as the Solicitor General
contends, the allegation is a "complete lie."
The latest attempt to stage a coup d'etat where several thousand members of the Armed
Forces of the Philippines sought to overthrow the present Government introduces
another aspect of the problem and illustrates quite clearly why those directly affected by
human rights violations should be the ones to institute court actions and why evidence of
what actually transpired should first be developed before petitions are filed with this
Court.
Where there is large scale mutiny or actual rebellion, the police or military may go in
force to the combat areas, enter affected residences or buildings, round up suspected
rebels and otherwise quell the mutiny or rebellion without having to secure search
warrants and without violating the Bill of Rights. This is exactly what happened in the
White Plains Subdivision and the commercial center of Makati during the first week of
December, 1989.
The areal target zonings in this petition were intended to flush out subversives and
criminal elements particularly because of the blatant assassinations of public officers and
police officials by elements supposedly coddled by the communities where the "drives"
were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that there
was no rebellion or criminal activity similar to that of the attempted coup d' etats. There
appears to have been no impediment to securing search warrants or warrants of arrest
before any houses were searched or individuals roused from sleep were arrested. There
is no strong showing that the objectives sought to be attained by the "areal zoning"
could not be achieved even as the rights of squatter and low income families are fully
protected.

Where a violation of human rights specifically guaranteed by the Constitution is involved,

it is the duty of the court to stop the transgression and state where even the awesome
power of the state may not encroach upon the rights of the individual. It is the duty of
the court to take remedial action even in cases such as the present petition where the
petitioners do not complain that they were victims of the police actions, where no names
of any of the thousands of alleged victims are given, and where the prayer is a general
one to stop all police "saturation drives," as long as the Court is convinced that the event
actually happened.
The Court believes it highly probable that some violations were actually committed. This
is so inspite of the alleged pleas of barangay officials for the thousands of residents "to
submit themselves voluntarily for character and personal verification." We cannot
imagine police actions of the magnitude described in the petitions and admitted by the
respondents, being undertaken without some undisciplined soldiers and policemen
committing certain abuses. However, the remedy is not to stop all police
actions, including the essential and legitimate ones. We see nothing wrong in police
making their presence visibly felt in troubled areas. Police cannot respond to riots or
violent demonstrations if they do not move in sufficient numbers. A show of force is
sometimes necessary as long as the rights of people are protected and not violated. A
blanket prohibition such as that sought by the petitioners would limit all police actions to
one on one confrontations where search warrants and warrants of arrests against specific
individuals are easily procured. Anarchy may reign if the military and the police decide to
sit down in their offices because all concerted drives where a show of force is present are
totally prohibited.
The remedy is not an original action for prohibition brought through a taxpayers' suit.
Where not one victim complains and not one violator is properly charged, the problem is
not initially for the Supreme Court. It is basically one for the executive departments and
for trial courts. Well meaning citizens with only second hand knowledge of the events
cannot keep on indiscriminately tossing problems of the executive, the military, and the
police to the Supreme Court as if we are the repository of all remedies for all evils. The
rules of constitutional litigation have been evolved for an orderly procedure in the
vindication of rights. They should be followed. If our policy makers sustain the contention
of the military and the police that occasional saturation drives are essential to maintain
the stability of government and to insure peace and order, clear policy guidelines on the
behavior of soldiers and policemen must not only be evolved, they should also be
enforced. A method of pinpointing human rights abuses and identifying violators is
necessary.
The problem is appropriate for the Commission on Human Rights. A high level
conference should bring together the heads of the Department of Justice, Department of
National Defense and the operating heads of affected agencies and institutions to devise
procedures for the prevention of abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman
whom we can order prosecuted. In the absence of clear facts ascertained through an
orderly procedure, no permanent relief can be given at this time. Further investigation of
the petitioners' charges and a hard look by administration officials at the policy
implications of the prayed for blanket prohibition are also warranted.
In the meantime and in the face of a prima facie showing that some abuses were
probably committed and could be committed during future police actions, we have to
temporarily restrain the alleged banging on walls, the kicking in of doors, the herding of
half-naked men to assembly areas for examination of tattoo marks, the violation of
residences even if these are humble shanties of squatters, and the other alleged acts
which are shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila,
Malabon, and Pasay City where the petitioners may present evidence supporting their
allegations and where specific erring parties may be pinpointed and prosecuted.
Copies of this decision are likewise forwarded to the Commission on Human Rights, the
Secretary of Justice, the Secretary of National Defense, and the Commanding General
PC-INP for the drawing up and enforcement of clear guidelines to govern police actions
intended to abate riots and civil disturbances, flush out criminal elements, and subdue
terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as
committed during the police actions are ENJOINED until such time as permanent rules to
govern such actions are promulgated.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes,
Medialdea and Regalado, JJ., concur.
Grio-Aquino, J., I join JJ. Cruz, Padilla and Sarmiento's dissents.

221. IBP v Zamora

EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.
ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines

(the Marines) to join the Philippine National Police (the PNP) in visibility patrols around
the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the
PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention
and suppression. The Secretary of National Defense, the Chief of Staff of the Armed
Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior
and Local Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI)
which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of
the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of
the AFP and the PNP Chief. [3] In the Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols.[4] The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is necessary.
[5]
Invoking his powers as Commander-in-Chief under Section 18, Article VII of the
Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate
with each other for the proper deployment and utilization of the Marines to assist the
PNP in preventing or suppressing criminal or lawless violence. [6] Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the situation
shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-above

the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are welltrained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and
to preserve the internal security of the state against insurgents and other serious threat
to national security, although the primary responsibility over Internal Security Operations
still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of highprofile crimes perpetrated by organized crime syndicates operating in Metro Manila. This
concept requires the military and police to work cohesively and unify efforts to ensure a
focused, effective and holistic approach in addressing crime prevention. Along this line,
the role of the military and police aside from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility
patrols, local Police Units are responsible for the maintenance of peace and order in their
locality.
c. To ensure the effective implementation of this project, a provisional Task Force
TULUNGAN shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa
(SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN
ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK;
HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A
CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE
XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY
BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian
character of the PNP.
The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of

standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[12]

The IBP has not sufficiently complied with the requisites of standing in this
case.
Legal standing or locus standi has been defined as a personal and substantial interest
in the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. [13] The term interest means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest. [14] The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.
[15]

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility
to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the administration of

justice is alien to, and cannot be affected by the deployment of the Marines. It should
also be noted that the interest of the National President of the IBP who signed the
petition, is his alone, absent a formal board resolution authorizing him to file the present
action. To be sure, members of the BAR, those in the judiciary included, have varying
opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the
National President to file the petition, has not shown any specific injury which it has
suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any form of injury as a
result of the operation of the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury not
personal in character, it is likewise too vague, highly speculative and uncertain to satisfy
the requirement of standing. Since petitioner has not successfully established a direct
and personal injury as a consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This Court, however,
does not categorically rule that the IBP has absolutely no standing to raise constitutional
issues now or in the future. The IBP must, by way of allegations and proof, satisfy this
Court that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion
to take cognizance of a suit which does not satisfy the requirement of legal standing
when paramount interest is involved.[16] In not a few cases, the Court has adopted a
liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people. [17] Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure.[18] In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather
than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the President as stated in
Section 18, Article VII of the Constitution, specifically, the power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated

provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine] deployment.
[19]

The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and
promotion of the general welfare. [20] For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt
of the military is not brought upon the citizenry, a point discussed in the latter part of
this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commanderin-chief the enumeration of powers that follow cannot be said to exclude the Presidents
exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.

We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates to
rule on are political questions. The reason is that political questions are concerned with
issues dependent upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the separation of powers,
the courts will not normally interfere with the workings of another co-equal branch unless
the case shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the legislative or executive
branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given

to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.[29] Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion. [30] A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom.This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own.However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the armed
forces, it is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden as there
is no evidence to support the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that grave abuse
was committed because the power to call was exercised in such a manner as to violate
the constitutional provision on civilian supremacy over the military. In the performance of
this Courts duty of purposeful hesitation [32] before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution, which
embodies the powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the

privilege of the writ ofhabeas corpus, or place the Philippines or any part thereof under
martial law.
xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the
calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for

their revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. [33] That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary
to the President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing
martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject
to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest discretion in
using the power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public

safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full discretion and wide latitude
in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed forces
is not easily quantifiable and cannot be objectively established since matters considered
for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may
use to judge necessity, information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon which
the President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in
his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI

2000. Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling
of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes permissible
use of military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority belonging to
the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures. [38] It is their responsibility to direct and
manage the deployment of the Marines.[39] It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to these soldiers. [40] In
view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP does
not unmake the civilian character of the police force. Neither does it amount to an
insidious incursion of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed
to a civilian post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP,
and not with the military. Such being the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungan since he does not exercise any authority
or control over the same.Since none of the Marines was incorporated or enlisted as
members of the PNP, there can be no appointment to civilian position to speak of. Hence,
the deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various

forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students; [52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use
of military force for domestic purposes has persisted, [60] and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory[64] George
Washington Law Review, pp. 404-433 (1986), which discusses the four divergent
standards for assessing acceptable involvement of military personnel in civil law
enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in
nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient.(emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of
Annex A. These soldiers, second, also have no power to prohibit or condemn. In No.

9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition. And last, these soldiers apply no coercive force. The materials or
equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and
defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine
Marines constitutes no impermissible use of military power for civilian law
enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima,
Santiago, and De Leon, Jr., JJ., concur.

Pardo,

Buena,

Bellosillo, J., on official leave.

Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

Gonzaga-Reyes,

Ynares-

222. Kulayan v Tan

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 187298

July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN

AWADI, and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO
SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT.
BIENVENIDO G. LATAG, in their capacity as officers of the Phil. Marines and
Phil. National Police, respectively, Respondents.
DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross
(ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. 1 Andres
Notter, a Swiss national and head of the ICRC in Zamboanga City, Eugenio Vagni, an
Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino engineer, were
purportedly inspecting a water and sanitation project for the Sulu Provincial Jail when
inspecting a water and sanitation project for the Sulu Provincial Jail when they were
seized by three armed men who were later confirmed to be members of the Abu Sayyaf
Group (ASG).2 The leader of the alleged kidnappers was identified as Raden Abu, a
former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad, one of
the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National
Police (PNP), which then organized a parallel local group known as the Local Crisis
Committee.3 The local group, later renamed Sulu Crisis Management Committee,
convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial
Governor of Sulu. Its armed forces component was headed by respondents General

Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was
headed by respondent Police Superintendent Bienvenido G. Latag, the Police Deputy
Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM). 4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male
civilians coming from different municipalities, who were redeployed to surrounding areas
of Patikul.5 The organization of the CEF was embodied in a "Memorandum of
Understanding"6 entered into
between three parties: the provincial government of Sulu, represented by Governor Tan;
the Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine
National Police, represented by P/SUPT. Latag. The Whereas clauses of the Memorandum
alluded to the extraordinary situation in Sulu, and the willingness of civilian supporters of
the municipal mayors to offer their services in order that "the early and safe rescue of
the hostages may be achieved."7
This Memorandum, which was labeled secret on its all pages, also outlined the
responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the
activation of the CEF;
2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to
this agreement;
3) The Provincial Government shall ensure that there will be no unilateral action(s)
by the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in military
operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance
of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for
in the course of operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local
Government, announced to the media that government troops had cornered some one
hundred and twenty (120) Abu Sayyaf members along with the three (3)
hostages.9 However, the ASG made
contact with the authorities and demanded that the military pull its troops back from the
jungle area.10 The government troops yielded and went back to their barracks; the
Philippine Marines withdrew to their camp, while police and civilian forces pulled back
from the terrorists stronghold by ten (10) to fifteen (15) kilometers. Threatening that
one of the hostages will be beheaded, the ASG further demanded the evacuation of the
military camps and bases in the different barangays in Jolo. 11 The authorities were given
no later than 2:00 oclock in the afternoon of 31 March 2009 to comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation
1-09), declaring a state of emergency in the province of Sulu.13 It cited the kidnapping
incident as a ground for the said declaration, describing it as a terrorist act pursuant to
the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A.
7160), which bestows on the Provincial Governor the power to carry out emergency
measures during man-made and natural disasters and calamities, and to call upon the
appropriate national law enforcement agencies to suppress disorder and lawless
violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and
other actions necessary to ensure public safety. The pertinent portion of the
proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR
MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE
WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN
EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines as
may be issued by proper authorities;
3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to
ensure public safety.

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was booked,
and interviewed about his relationship to Musin, Jaiton, and Julamin, who were all his
deceased relatives. Upon admitting that he was indeed related to the three, he was
detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul
Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong
Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also
arrested.16 The affidavit17 of the apprehending officer alleged that they were suspected
ASG supporters and were being arrested under Proclamation 1-09. The following day, 2
April 2009, the hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of
the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a
State of Emergency in the Province of Sulu."18These Guidelines suspended all Permits to
Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed
civilians to seek exemption from the gun ban only by applying to the Office of the
Governor and obtaining the appropriate identification cards. The said guidelines also
allowed general searches and seizures in designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi,
Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present
Petition for Certiorari and Prohibition,19claiming that Proclamation 1-09 was issued with
grave abuse of discretion amounting to lack or excess of jurisdiction, as it threatened
fundamental freedoms guaranteed under Article III of the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued
ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of the
Constitution, which grants the President sole authority to exercise emergency powers
and calling-out powers as the chief executive of the Republic and commander-in-chief of
the armed forces.20 Additionally, petitioners claim that the Provincial Governor is not
authorized by any law to create civilian armed forces under his command, nor regulate
and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on
hierarchy of courts when they filed the instant petition directly in the court of last resort,
even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed
concurrent jurisdiction with the

Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent
Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim,
and P/SUPT. Bienvenido Latag did not file their respective Comments.1wphi1
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra
vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local
Government Code, which empowers the Provincial Governor to carry out emergency
measures during calamities and disasters, and to call upon the appropriate national law
enforcement agencies to suppress disorder, riot, lawless violence, rebellion or
sedition.22Furthermore, the Sangguniang Panlalawigan of Sulu authorized the declaration
of a state of emergency as evidenced by Resolution No. 4, Series of 2009 issued on 31
March 2009 during its regular session.23
The threshold issue in the present case is whether or not Section 465, in relation to
Section 16, of the Local Government Code authorizes the respondent governor to declare
a state of emergency, and exercise the powers enumerated under Proclamation 1-09,
specifically the conduct of general searches and seizures. Subsumed herein is the
secondary question of whether or not the provincial governor is similarly clothed with
authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of
Courts
We first dispose of respondents invocation of the doctrine of hierarchy of courts which
allegedly prevents judicial review by this Court in the present case, citing for this specific
purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v.
Yuipco.24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the
competence of the CA or the RTC, it is in either of these courts and not in the Supreme
Court, that the specific action for the issuance of such writ must be sought unless special
and important laws are clearly and specifically set forth in the petition. The reason for
this is that this Court is a court of last resort and must so remain if it is to perform the
functions assigned to it by the Constitution and immemorial tradition. It cannot be
burdened with deciding cases in the first instance.25
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court
stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional questions of

transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition for
mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant
case.27
The instant case stems from a petition for certiorari and prohibition, over which the
Supreme Court possesses original jurisdiction.28 More crucially, this case involves acts of
a public official which pertain to restrictive custody, and is thus impressed with
transcendental public importance that would warrant the relaxation of the general rule.
The Court would be remiss in its constitutional duties were it to dismiss the present
petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public
importance involved in cases that concern restrictive custody, because judicial review in
these cases serves as "a manifestation of the crucial defense of civilians in police power
cases due to the diminution of their basic liberties under the guise of a state of
emergency."30 Otherwise, the importance of the high tribunal as the court of last resort
would be put to naught, considering the nature of "emergency" cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing of the claim
that the issue had become moot and academic, the Court also cited transcendental
public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements)
ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng
madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang
maturuan ang kapulisan tungkol dito.
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; second, the exceptional
character of the situation and the paramount public interest is involved; third, when [the]
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.
There is no question that the issues being raised affect the public interest, involving as
they do the peoples 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. And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under
the foregoing exceptions. Every bad, unusual incident where police officers figure in
generates public interest and people watch what will be done or not done to them. Lack
of disciplinary steps taken against them erode public confidence in the police institution.
As petitioners themselves assert, the restrictive custody of policemen under
investigation is an existing practice, hence, the issue is bound to crop up every now and
then. The matter is capable of repetition or susceptible of recurrence. It better be
resolved now for the education and guidance of all concerned.31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental
public importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of the
Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior,32 it has already been established that there is
one repository of executive powers, and that is the President of the Republic. This means
that when Section 1, Article VII of the Constitution speaks of executive power, it is
granted to the President and no one else.33 As emphasized by Justice Jose P. Laurel, in his
ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight,
and that is the establishment of a single, not plural, Executive. The first section of Article
VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President of
the Philippines." This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency
powers as provided under Section 23, Article VI, of the Constitution, as well as what
became known as the calling-out powers under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president
Springing from the well-entrenched constitutional precept of One President is the notion
that there are certain acts which, by their very nature, may only be performed by the
president as the Head of the State. One of these acts or prerogatives is the bundle of
Commander-in-Chief powers to which the "calling-out" powers constitutes a portion. The

Presidents Emergency Powers, on the other hand, is balanced only by the legislative act
of Congress, as embodied in the second paragraph of Section 23, Article 6 of the
Constitution:
Article 6, Sec 23(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.35
Article 7, 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. 36
The power to declare a state of martial law is subject to the Supreme Courts authority to
review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is
of lesser gravity than the power to declare martial law, is bestowed upon the President
alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of
the Chief Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers by
any other person. Such, for instance, is his power to suspend the writ of habeas corpus
and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making the
civilian president the nations supreme military leader. The net effect of Article II, Section
3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head of
the armed forces. The Constitution does not require that the President must be
possessed of military training and talents, but as Commander-in-Chief, he has the power
to direct military operations and to determine military strategy. Normally, he would be

expected to delegate the actual command of the armed forces to military experts; but
the ultimate power is his.40 As Commander-in-Chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual.41
In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power.43 (Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the Presidents
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification.44
That the power to call upon the armed forces is discretionary on the president is clear
from the deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx

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MR. REGALADO. That does not require any concurrence by the legislature nor is it subject
to judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in
his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion.45(Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental law.
There are certain presidential powers which arise out of exceptional circumstances, and
if exercised, would involve the suspension of fundamental freedoms, or at least call for
the supersedence of executive prerogatives over those exercised by co-equal branches
of government. The declaration of martial law, the suspension of the writ of habeas
corpus, and the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that demands the
exclusive exercise by the President of the constitutionally vested power. The list is by no
means exclusive, but there must be a showing that the executive power in question is of
similargravitas and exceptional import.47
In addition to being the commander-in-chief of the armed forces, the President also acts
as the leader of the countrys police forces, under the mandate of Section 17, Article VII
of the Constitution, which provides that, "The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed." During the deliberations of the Constitutional Commission on the framing of
this provision, Fr. Bernas defended the retention of the word "control," employing the
same rationale of singularity of the office of the president, as the only Executive under
the presidential form of government.48
Regarding the countrys police force, Section 6, Article XVI of the Constitution states that:
"The State shall establish and maintain one police force, which shall be national in scope
and civilian in character, to be administered and controlled by a national police

commission. The authority of local executives over the police units in their jurisdiction
shall be provided by law."49
A local chief executive, such as the provincial governor, exercises operational supervision
over the police,50 and may exercise control only in day-to-day operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or
by law full control of the police by the local chief executive and local executives, the
mayors. By our experience, this has spawned warlordism, bossism and sanctuaries for
vices and abuses. If the national government does not have a mechanism to supervise
these 1,500 legally, technically separate police forces, plus 61 city police forces,
fragmented police system, we will have a lot of difficulty in presenting a modern
professional police force. So that a certain amount of supervision and control will have to
be exercised by the national government.
For example, if a local government, a town cannot handle its peace and order problems
or police problems, such as riots, conflagrations or organized crime, the national
government may come in, especially if requested by the local executives. Under that
situation, if they come in under such an extraordinary situation, they will be in control.
But if the day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in complete
operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.
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Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual
duties being performed by the ordinary policemen, will be under the supervision of the
local executives?
Mr. Natividad: Yes, Madam President.
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Mr. de los Reyes: But in exceptional cases, even the operational control can be taken
over by the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local
governments.51 (Emphases supplied)
Furthermore according to the framers, it is still the President who is authorized to
exercise supervision and control over the police, through the National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-inChief of all the armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not
suppose they come under the Commander-in-Chief powers of the President of the
Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the supervision and
control of the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that
the President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the
President.52
In the discussions of the Constitutional Commission regarding the above provision it is
clear that the framers never intended for local chief executives to exercise unbridled
control over the police in emergency situations.This is without prejudice to their
authority over police units in their jurisdiction as provided by law, and their prerogative
to seek assistance from the police in day to day situations, as contemplated by the
Constitutional Commission. But as a civilian agency of the government, the police,
through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
President of the power of executive control.53
iii. The provincial governor does not possess the same calling-out powers as the
President
Given the foregoing, respondent provincial governor is not endowed with the power to
call upon the armed forces at his own bidding. In issuing the assailed proclamation,
Governor Tan exceeded his authority when he declared a state of emergency and called
upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out

powers contemplated under the Constitution is exclusive to the President. An exercise by

another official, even if he is the local chief executive, is ultra vires, and may not be
justified by the invocation of Section 465 of the Local Government Code, as will be
discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal case of
David v. Arroyo, which dealt squarely with the issue of the declaration of a state of
emergency, does it limit the said authority to the President alone. Respondents contend
that the ruling in David expressly limits the authority to declare a national emergency, a
condition which covers the entire country, and does not include emergency situations in
local government units.54 This claim is belied by the clear intent of the framers that in all
situations involving threats to security, such as lawless violence, invasion or rebellion,
even in localized areas, it is still the President who possesses the sole authority to
exercise calling-out powers. As reflected in the Journal of the Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in
lieu of "invasion or rebellion." Mr. Sumulong stated that the committee could not accept
the amendment because under the first section of Section 15, the President may call out
and make use of the armed forces to prevent or suppress not only lawless violence but
even invasion or rebellion without declaring martial law. He observed that by deleting
"invasion or rebellion" and substituting PUBLIC DISORDER, the President would have to
declare martial law before he can make use of the armed forces to prevent or suppress
lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter
situation where there is some lawless violence in a small portion of the country or public
disorder in another at which times, the armed forces can be called to prevent or
suppress these incidents. He noted that the Commander-in-Chief can do so in a minor
degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence
which provides for "invasion or rebellion." He maintained that the proposed amendment
does not mean that under such circumstances, the President cannot call on the armed
forces to prevent or suppress the same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under
Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers enumerated
under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the Local
Government Code, which purportedly allows the governor to carry out emergency
measures and call upon the appropriate national law enforcement agencies for
assistance. But a closer look at the said proclamation shows that there is no provision in

the Local Government Code nor in any law on which the broad and unwarranted powers
granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters,"57 as being violative of the
constitutional proscription on general search warrants and general seizures. Petitioners
rightly assert that this alone would be sufficient to render the proclamation void, as
general searches and seizures are proscribed, for being violative of the rights enshrined
in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or 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.58
In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "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
the jurisdiction on military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ."59
We find, and so hold, that there is nothing in the Local Government Code which justifies
the acts sanctioned under the said Proclamation. Not even Section 465 of the said Code,
in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
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(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code,
the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and
activities of the provincial government, and in this connection, shall:
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(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the
exercise of the appropriate corporate powers provided for under Section 22 of this Code,

implement all approved policies, programs, projects, services and activities of the
province and, in addition to the foregoing, shall:
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(vi) Call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition or to apprehend violators of the law when
public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation or
the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants. (Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the
said provision expressly refers to calamities and disasters, whether man-made or
natural. The governor, as local chief executive of the province, is certainly empowered to
enact and implement emergency measures during these occurrences. But the
kidnapping incident in the case at bar cannot be considered as a calamity or a disaster.
Respondents cannot find any legal mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of a
"national law enforcement agency," to which the National Police Commission
(NAPOLCOM) and its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and
defend the Republic against all enemies, foreign and domestic. Its aim is also to secure
the integrity of the national territory.60
Second, there was no evidence or even an allegation on record that the local police
forces were inadequate to cope with the situation or apprehend the violators. If they
were inadequate, the recourse of the provincial governor was to ask the assistance of the
Secretary of Interior and Local Government, or such other authorized officials, for the
assistance of national law enforcement agencies.

The Local Government Code does not involve the diminution of central powers inherently
vested in the National Government, especially not the prerogatives solely granted by the
Constitution to the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature.1wphi1The Code is concerned only with powers that would
make the delivery of basic services more effective to the constituents,61 and should not
be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of
powers is a step towards the autonomy of local government units (LGUs), and is actually
an experiment whose success heavily relies on the power of taxation of the LGUs. The
underpinnings of the Code can be found in Section 5, Article II of the 1973 Constitution,
which allowed LGUs to create their own sources of revenue.62 During the interpellation
made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that "Decentralization
is an administrative concept and the process of shifting and delegating power from a
central point to subordinate levels to promote independence, responsibility, and quicker
decision-making. (I)t does not involve any transfer of final authority from the national
to field levels, nor diminution of central office powers and responsibilities. Certain
government agencies, including the police force, are exempted from the decentralization
process because their functions are not inherent in local government units."63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly constituted authority shall
be dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not
consistent with the citizen armed force established in this Constitution, shall be dissolved
or, where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the National
Government."
Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed
citizens groups, as shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force
operating under the cloak, under the mantle of legality is creating a lot of problems

precisely by being able to operate as an independent private army for many regional
warlords. And at the same time, this I think has been the thrust, the intent of many of
the discussions and objections to the paramilitary units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of political warlords and
other armed torces not recognized by constituted authority which shall be dismantled
and dissolved. In my trips to the provinces, I heard of many abuses committed by the
CHDF (Civilian Home Defense Forces), specially in Escalante, Negros Occidental. But I do
not know whether a particular CHDF is approved or authorized by competent authority. If
it is not authorized, then the CHDF will have to be dismantled. If some CHDFs, say in
other provinces, are authorized by constituted authority, by the Armed Forces of the
Philippines, through the Chief of Staff or the Minister of National Defense, if they are
recognized and authorized, then they will not be dismantled. But I cannot give a
categorical answer to any specific CHDF unit, only the principle that if they are armed
forces which are not authorized, then they should be dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the creation of the
Civilian Emergency Force (CEF) in the present case, is also invalid.
WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding
respondents to desist from further proceedings m implementing Proclamation No. 1,
Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines
are hereby declared NULL and VOID for having been issued in grave abuse of discretion,
amounting to lack or excess of jurisdiction.
SO ORDERED.
MARIA LOURDES P. A. S