RESIDENT MARINE MAMMALS vs.

REYES
Petitioners in G.R. No. 180771, collectively referred to as
the "Resident Marine Mammals" in the petition, are the
toothed whales, dolphins, porpoises, and other cetacean
species, which inhabit the waters in and around the Taon
Strait. They are joined by Gloria Estenzo Ramos (Ramos)
and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal
guardians and as friends (to be collectively known as "the
Stewards") who allegedly empathize with, and seek the
protection of, the aforementioned marine species. Also
impleaded as an unwilling co-petitioner is former
President Gloria Macapagal-Arroyo, for her express
declaration and undertaking in the ASEAN Charter to
protect the Taon Strait, among others.
Petitioners in G.R. No. 181527 are the Central Visayas
Fisherfolk Development Center (FIDEC), a non-stock, nonprofit, non-governmental organization, established for the
welfare of the marginal fisherfolk in Region VII; and Cerilo
D. Engarcial (Engarcial), Ramon Yanong (Yanong) and
Francisco Labid (Labid), in their personal capacities and
as representatives of the subsistence fisherfolk of the
municipalities of Aloguinsan and Pinamungajan, Cebu.
Named as respondents in both petitions are the late
Angelo T. Reyes, as then Secretary of the Department of
Energy (DOE); Jose L. Atienza, as then Secretary of the
DENR; Leonardo R. Sibbaluca, as then DENR-Regional
Director for Region VII and Chairman of the Taon Strait
Protected Seascape Management Board; Japan Petroleum
Exploration Co., Ltd. (JAPEX), a company organized and
existing under the laws of Japan with a Philippine branch
office; and Supply Oilfield Services, Inc. (SOS), as the
alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as
additional public respondents: Alan C. Arranguez
(Arranguez) and Antonio Labios (Labios), in their
capacities as then Director of the EMB, Region VII and
then Regional Director of the DOE, Region VII,
respectively.
On June 13, 2002, the Government of the Philippines,
acting through the DOE, entered into a Geophysical
Survey and Exploration Contract-102 (GSEC-102)
with JAPEX. This contract involved geological and
geophysical studies of the Taon Strait. The studies
included surface geology, sample analysis, and
reprocessing of seismic and magnetic data. JAPEX,
assisted by DOE, also conducted geophysical and satellite
surveys, as well as oil and gas sampling in Taon Strait.
On December 21, 2004, DOE and JAPEX formally
converted GSEC-102 into SC-46 for the exploration,
development,
and
production
of
petroleum
resources in a block covering approximately 2,850
square kilometers offshore the Taon Strait.
xxx

On March 6, 2007, the EMB of DENR Region VII granted an

ECC to the DOE and JAPEX for the offshore oil and gas
exploration project in Taon Strait. Months later, on
November 16, 2007, JAPEX began to drill an exploratory
well, with a depth of 3,150 meters, near Pinamungajan
town in the western Cebu Province. This drilling lasted
until February 8, 2008.
It was in view of the foregoing state of affairs that
petitioners applied to this Court for redress, via two
separate original petitions both dated December 17,
2007, wherein they commonly seek that respondents be
enjoined from implementing SC-46 for, among others,
violation of the 1987 Constitution.
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil
exploration activities in the Taon Strait, petitioners
Resident Marine Mammals and Stewards aver that a study
made after the seismic survey showed that the fish catch
was reduced drastically by 50 to 70 percent. They claim
that before the seismic survey, the average harvest per
day would be from 15 to 20 kilos; but after the activity,
the fisherfolk could only catch an average of 1 to 2 kilos a
day. They attribute this "reduced fish catch" to the
destruction of the "payao" also known as the "fish
aggregating device" or "artificial reef."31Petitioners
Resident Marine Mammals and Stewards also impute the
incidences of "fish kill"32observed by some of the local
fisherfolk to the seismic survey. And they further allege
that the ECC obtained by private respondent JAPEX is
invalid because public consultations and discussions with
the affected stakeholders, a pre-requisite to the issuance
of the ECC, were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms
petitioners Resident Marine Mammals and Stewards'
allegations of reduced fish catch and lack of public
consultations or discussions with the fisherfolk and other
stakeholders prior to the issuance of the ECC. Moreover, it
alleges that during the seismic surveys and drilling, it was
barred from entering and fishing within a 7-kilometer
radius from the point where the oilrig was located, an
area greater than the 1.5-kilometer radius "exclusion
zone" stated in the IEE.33 It also agrees in the allegation
that public respondents DENR and EMB abused their
discretion when they issued an ECC to public respondent
DOE and private respondent JAPEX without ensuring the
strict compliance with the procedural and substantive
requirements
under
the
Environmental
Impact
Assessment system, the Fisheries Code, and their
implementing rules and regulations.34 It further claims
that despite several requests for copies of all the
documents pertaining to the project in Taflon Strait, only
copies of the PAMB-Taon Strait Resolution and the ECC
were given to the fisherfolk.
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General,
contend that petitioners Resident Marine Mammals and

Stewards have no legal standing to file the present

petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in the petitions;
that the ECC was issued in accordance with existing laws
and regulations; that public respondents may not be
compelled by mandamus to furnish petitioners copies of
all documents relating to SC-46; and that all the
petitioners failed to show that they are entitled to
injunctive relief. They further contend that the issues
raised in these petitions have been rendered moot and
academic by the fact that SC-46 had been mutually
terminated by the parties thereto effective June 21, 2008.

ISSUES
Procedural Issue: Locus Standi of the Resident Marine
Mammals and Stewards, petitioners in G.R. No. 180771;
and
Main Issue: Legality of Sendee Contract No. 46.
DISCUSSION
Procedural Issues Locus Standi of Petitioners
Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards,
"claim" that they have the legal standing to file this
action since they stand to be benefited or injured by the
judgment in this suit.40 Citing Oposa v. Factoran, Jr., they
also assert their right to sue for the faithful performance
of international and municipal environmental laws created
in their favor and for their benefit. In this regard, they
propound that they have the right to demand that they be
accorded the benefits granted to them in multilateral
international instruments that the Philippine Government
had signed, under the concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be
no question of their right to represent the Resident Marine
Mammals as they have stakes in the case as forerunners
of a campaign to build awareness among the affected
residents of Taon Strait and as stewards of the
environment since the primary steward, the Government,
had failed in its duty to protect the environment pursuant
to the public trust doctrine.
xxx
The issue of whether or not animals or even inanimate
objects should be given legal standing in actions before
courts of law is not new in the field of animal rights and
environmental law. Petitioners Resident Marine Mammals
and Stewards cited the 1972 United States case Sierra
Club v. Rogers C.B. Morton, wherein Justice William O.
Douglas, dissenting to the conventional thought on legal
standing, opined:
The critical question of "standing" would be simplified and
also put neatly in focus if we fashioned a federal rule that
allowed environmental issues to be litigated before
federal agencies or federal courts in the name of the

inanimate object about to be despoiled, defaced, or

invaded by roads and bulldozers and where injury is the
subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A
ship has a legal personality, a fiction found useful for
maritime purposes. The corporation sole - a creature of
ecclesiastical law - is an acceptable adversary and large
fortunes ride on its cases. The ordinary corporation is a
"person" for purposes of the adjudicatory processes,
whether it represents proprietary, spiritual, aesthetic, or
charitable causes.
So it should be as respects valleys, alpine meadows,
rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive
pressures of modern technology and modem life. The
river, for example, is the living symbol of all the life it
sustains or nourishesfish, aquatic insects, water ouzels,
otter, fisher, deer, elk, bear, and all other animals,
including man, who are dependent on it or who enjoy it
for its sight, its sound, or its life. The river as plaintiff
speaks for the ecological unit of life that is part of it.
Those people who have a meaningful relation to that
body of waterwhether it be a fisherman, a canoeist, a
zoologist, or a loggermust be able to speak for the
values which the river represents and which are
threatened with destruction.(Citations omitted.)
The primary reason animal rights advocates and
environmentalists seek to give animals and inanimate
objects standing is due to the need to comply with the
strict requirements in bringing a suit to court. Our own
1997 Rules of Court demand that parties to a suit be
either natural or juridical persons, or entities authorized
by law. It further necessitates the action to be brought in
the name of the real party-in-interest, even if filed by a
representative, x x x
It had been suggested by animal rights advocates and
environmentalists that not only natural and juridical
persons should be given legal standing because of the
difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions
in representation of these animals or inanimate objects.
For this reason, many environmental cases have been
dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of
the case. However, in our jurisdiction, locus standi in
environmental cases has been given a more liberalized
approach. While developments in Philippine legal theory
and jurisprudence have not progressed as far as Justice
Douglas's paradigm of legal standing for inanimate
objects, the current trend moves towards simplification of
procedures and facilitating court access in environmental
cases.
Recently, the Court passed the landmark Rules of
Procedure for Environmental Cases, which allow for a
"citizen suit," and permit any Filipino citizen to file

an action before our courts for violations of our

environmental laws:
SEC. 5. Citizen suit. - Any Filipino citizen in
representation of others, including minors or
generations yet unborn, may file an action to
enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue
an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all
interested parties to manifest their interest to intervene
in the case within fifteen (15) days from notice thereof.
The plaintiff may publish the order once in a newspaper
of a general circulation in the Philippines or furnish all
affected
barangays
copies
of
said
order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003
shall
be
governed
by
their
respective
provisions. (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the
Annotations to the Rules of Procedure for Environmental
Cases, commented:
Citizen suit. To further encourage the protection of the
environment, the Rules enable litigants enforcing
environmental rights to file their cases as citizen suits.
This provision liberalizes standing for all cases filed
enforcing environmental laws and collapses the
traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first
enunciated in Oposa v. Factoran, insofar as it refers to
minors and generations yet unborn. (Emphasis supplied,
citation omitted.)
Although this petition was filed in 2007, years before the
effectivity of the Rules of Procedure for Environmental
Cases, it has been consistently held that rules of
procedure "may be retroactively applied to actions
pending and undetermined at the time of their passage
and will not violate any right of a person who may feel
that he is adversely affected, inasmuch as there is no
vested
rights
in
rules
of
procedure."
xxx
Moreover, even before the Rules of Procedure for
Environmental Cases became effective, this Court had
already taken a permissive position on the issue of locus
standi in environmental cases. InOposa, we allowed the
suit to be brought in the name of generations yet unborn
"based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is
concerned."56 Furthermore, we said that the right to a
balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is
assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from
impairing the environment.

In light of the foregoing, the need to give the Resident

Marine
Mammals
legal
standing
has
been
eliminated by our Rules, which allow any Filipino
citizen, as a steward of nature, to bring a suit to
enforce our environmental laws. It is worth noting
here that the Stewards are joined as real parties in
the Petition and not just in representation of the
named cetacean species. The Stewards, Ramos and
Eisma-Osorio, having shown in their petition that
there may be possible violations of laws concerning
the habitat of the Resident Marine Mammals, are
therefore declared to possess the legal standing to
file this petition.
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987
Constitution
The petitioners insist that SC-46 is null and void for
having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:
Section 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural
resources shall be under the full control and supervision
of the State. The State may directly undertake such
activities, or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided
by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and
lagoons.

The President may enter into agreements with

foreign-owned
corporations
involving
either
technical or financial assistance for large-scale
exploration, development, and utilization of
minerals, petroleum, and other mineral oils
according to the general terms and conditions
provided by law, based on real contributions to the
economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical
resources.

(1) The service contract shall be crafted in accordance

with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a
certain uniformity in provisions and avoid the possible
insertion of terms disadvantageous to the country.

The President shall notify the Congress of every

contract entered into in accordance with this
provision,
within
thirty
days
from
its
execution. (Emphases ours.)

(3) Within thirty days of the executed agreement, the

President shall report it to Congress to give that branch of
government an opportunity to look over the agreement
and interpose timely objections, if any.

This Court has previously settled the issue of whether

service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the
words "service contracts" in the 1987 Constitution did not
amount to a ban on them per se. In fact, in that decision,
we quoted in length, portions of the deliberations of the
members of the Constitutional Commission (ConCom) to
show that in deliberating on paragraph 4, Section 2,
Article XII, they were actually referring to service
contracts as understood in the 1973 Constitution, albeit
with safety measures to eliminate or minimize the abuses
prevalent during the martial law regime, to wit:

Adhering to the aforementioned guidelines, this

Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987
Constitution.

xxx
Agreements Involving Technical Or Financial
Assistance Are Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the
phrase agreements involving either technical or financial
assistance, referred to in paragraph 4, are in fact service
contracts. But unlike those of the 1973 variety, the new
ones are between foreign corporations acting as
contractors on the one hand; and on the other, the
government as principal or "owner" of the works. In the
new service contracts, the foreign contractors provide
capital, technology and technical know-how, and
managerial expertise in the creation and operation of
large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB), actively
exercises control and supervision over the entire
operation.68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we
established that paragraph 4, with the safeguards
in place, is the exception to paragraph 1, Section 2
of Article XII. The following are the safeguards this Court
enumerated
in La
Bugal:chanroblesvirtuallawlibrary

Such service contracts may be entered into only with

respect to minerals, petroleum and other mineral oils. The
grant thereof is subject to several safeguards, among
which
are
these
requirements:

(2) The President shall be the signatory for the

government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure
that it conforms to law and can withstand public scrutiny.

1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation,
and utilization of indigenous petroleum in the Philippines
are governed by Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972. This was
enacted by then President Ferdinand Marcos to promote
the discovery and production of indigenous petroleum
through the utilization of government and/or local or
foreign private resources to yield the maximum benefit to
the Filipino people and the revenues to the Philippine
Government.
Contrary to the petitioners' argument, Presidential Decree
No. 87, although enacted in 1972, before the adoption of
the 1987 Constitution, remains to be a valid law unless
otherwise repealed x x x
This Court could not simply assume that while
Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. As we held
in Villarea v. The Commission on Audit,71 "[i]mplied
repeals are not lightly presumed." It is a settled rule that
when laws are in conflict with one another, every effort
must be exerted to reconcile them. x x x
Consequently, we find no merit in petitioners' contention
that SC-46 is prohibited on the ground that there is no
general law prescribing the standard or uniform terms,
conditions, and requirements for service contracts
involving oil exploration and extraction.
But note must be made at this point that while
Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration
and extraction may be authorized, as will be discussed
below, the exploitation and utilization of this energy
resource in the present case may be allowed only through
a law passed by Congress, since the Taon Strait is a
NIPAS area.

2. President was not the signatory to SC-46 and

the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is
sufficient to satisfy the requirement of a general law, the
absence of the two other conditions, that the President be
a signatory to SC-46, and that Congress be notified of
such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have
conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987 Constitution.
The
Civil
Code
provides:chanroblesvirtuallawlibrary
ARTICLE 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.
(Italics ours.)

While the requirements in executing service contracts in

paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality,
take on a much bigger role. As we have explained in La
Bugal, they are the safeguards put in place by the
framers of the Constitution to "eliminate or minimize the
abuses prevalent during the martial law regime." Thus,
they are not just mere formalities, which will only render a
contract unenforceable but not void, if not complied with.
They are requirements placed, not just in an ordinary
statute, but in the fundamental law, the non-observance
of which will nullify the contract. Elucidating on the
concept of a "constitution," this Court, in Manila Prince
Hotel v. Government Service Insurance System, held:

Paragraph 4, Section 2, Article XII of the 1987

Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC46 appeared to have been entered into and signed
only by the DOE through its then Secretary, Vicente
S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither
shown nor alleged that Congress was subsequently
notified of the execution of such contract.

A constitution is a system of fundamental laws for the

governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined
as the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain
fixed principles on which government is founded. The
fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in
accordance with which all private rights must be
determined and all public authority administered. Under
the doctrine of constitutional supremacy, if a law
or contract violates any norm of the constitution
that law or contract whether promulgated by the
legislative or by the executive branch or entered
into by private persons for private purposes is null
and void and without any force and effect.
Thus,since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Emphasis ours.)

Public respondents' implied argument that based on the

"alter ego principle," their acts are also that of then
President Macapagal-Arroyo's, cannot apply in this case.
In Joson v. Torres, we explained the concept of the alter
ego principle or the doctrine of qualified political agency
and its limit in this wise:

As this Court has held in La Bugal, our Constitution

requires that the President himself be the signatory of
service agreements with foreign-owned corporations
involving the exploration, development, and utilization of
our minerals, petroleum, and other mineral oils. This
power
cannot
be
taken
lightly.

In Heirs of San Miguel v. Court of Appeals,76 this Court

held
that:chanroblesvirtuallawlibrary
It is basic that the law is deemed written into every
contract. Although a contract is the law between the
parties, the provisions of positive law which regulate
contracts are deemed written therein and shall limit and
govern the relations between the parties, x x x. (Citations
omitted.)

Under this doctrine, which recognizes the establishment

of a single executive, 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 or 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, are, unless disapproved or reprobated by the
Chief Executive presumptively the acts of the Chief
Executive. (Emphasis ours, citation omitted.)

In this case, the public respondents have failed to show

that the President had any participation in SC-46. Their
argument that their acts are actually the acts of then
President Macapagal-Arroyo, absent proof of her
disapproval, must fail as the requirement that the
President herself enter into these kinds of contracts is
embodied not just in any ordinary statute, but in the
Constitution itself. These service contracts involving the
exploitation, development, and utilization of our natural
resources are of paramount interest to the present and
future generations. Hence, safeguards were put in place
to insure that the guidelines set by law are meticulously
observed and likewise to eradicate the corruption that
may easily penetrate departments and agencies by
ensuring that the President has authorized or approved of
these
service
contracts
herself.

Even under the provisions of Presidential Decree No. 87, it

is required that the Petroleum Board, now the DOE, obtain
the President's approval for the execution of any contract
under said statute, as shown in the following provision:
SECTION 5. Execution of contract authorized in this Act. Every contract herein authorized shall, subject to the
approval of the President, be executed by the Petroleum
Board created in this Act, after due public notice prequalification and public bidding or concluded through
negotiations. In case bids are requested or if requested
no bid is submitted or the bids submitted are rejected by
the Petroleum Board for being disadvantageous to the
Government, the contract may be concluded through
negotiation.
In opening contract areas and in selecting the best offer
for petroleum operations, any of the following alternative
procedures may be resorted to by the Petroleum Board,
subject to prior approval of the President [.]
Even if we were inclined to relax the requirement in La
Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it
must be shown that the government agency or
subordinate official has been authorized by the President
to enter into such service contract for the government.
Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None
of these circumstances is evident in the case at bar.

VALMONTE vs. DE VILLA

National Capital Region District Command (NCRDC) was
activated pursuant to Letter of Instruction 02/87 of the
Philippine General Headquarters, AFP, with the mission of
conducting security operations within its area of
responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive
to the social, economic and political development of the
National Capital Region. As part of its duty to maintain
peace and order, the NCRDC installed checkpoints in
various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said
checkpoints, the residents of Valenzuela are worried of
being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the
military manning the checkpoints, considering that their
cars and vehicles are being subjected to regular searches
and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. x x x
Petitioners further contend that the said checkpoints give
the respondents a blanket authority to make searches
and/or seizures without search warrant or court order in
violation of the Constitution; and, instances have

occurred where a citizen, while not killed, had been

harassed.
Petitioners' concern for their safety and apprehension at
being harassed by the military manning the checkpoints
are not sufficient grounds to declare the checkpoints as
per se illegal. No proof has been presented before the
Court to show that, in the course of their routine checks,
the military indeed committed specific violations of
petitioners' right against unlawful search and seizure or
other rights.
In a case filed by the same petitioner organization, Union
of Lawyers and Advocates for People's Right (ULAP) vs.
Integrated National Police, it was held that individual
petitioners who do not allege that any of their rights were
violated are not qualified to bring the action, as real
parties in interest.
RULING:
The constitutional right against unreasonable
searches and seizures is a personal right invocable
only by those whose rights have been infringed, or
threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in
any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.
Petitioner Valmonte's general allegation to the
effect that he had been stopped and searched
without a search warrant by the military manning
the checkpoints, without more, i.e., without stating
the details of the incidents which amount to a
violation of his right against unlawful search and
seizure, is not sufficient to enable the Court to
determine whether there was a violation of
Valmonte's right against unlawful search and
seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case.
Where, for example, the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public
fair grounds, or simply looks into a vehicle, or flashes a
light therein, these do not constitute unreasonable
search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the
NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints
may also be regarded as measures to thwart plots to
destabilize the government, in the interest of public
security. In this connection, the Court may take judicial
notice of the shift to urban centers and their suburbs of

the insurgency movement, so clearly reflected in the

increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness
and violence in such urban centers, not all of which are
reported in media, most likely brought about by
deteriorating economic conditions which all sum up to
what one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the
state to protect its existence and promote public
welfare and an individual's right against a
warrantless search which is however
reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is
susceptible of abuse by the men in uniform, in the same
manner that all governmental power is susceptible of
abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price
we pay for an orderly society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in
Metro Manila were temporarily lifted and a review and
refinement of the rules in the conduct of the police and
military manning the checkpoints was ordered by the
National Capital Regional Command Chief and the
Metropolitan Police Director.

at the house of his associate named "Neneth." [6] "Jun" led

the police team to "Neneth's" house nearby at Daang
Bakal.
The team found the door of "Neneth's" house open and a
woman inside. "Jun" identified the woman as his
associate. SPO1
Badua
asked
"Neneth"
about
the P1,600.00 as PO3 Manlangit looked over "Neneth's"
house. Standing by the door, PO3 Manlangit noticed a
carton box under the dining table. He saw that one of the
box's flaps was open and inside the box was something
wrapped in plastic. The plastic wrapper and its contents
appeared similar to themarijuana earlier "sold" to him by
"Jun." His suspicion aroused, PO3 Manlangit entered
"Neneth's" house and took hold of the box. He peeked
inside the box and found that it contained ten (10) bricks
of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua
recovered the marked bills from "Neneth." The policemen
arrested "Neneth." They took "Neneth" and "Jun,"
together with the box, its contents and the marked bills
and turned them over to the investigator at headquarters.
It was only then that the police learned that "Jun" is
Florencio Doria y Bolado while "Neneth" is Violeta Gaddao
y Catama. The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks recovered
from "Neneth's" house were examined at the PNP Crime
Laboratory. The bricks, eleven (11) in all, were found to
be dried marijuana fruiting tops of various weights
totalling 7,641.08 grams.
xxx

PEOPLE vs. DORIA

On December 7, 1995, accused-appellants Florencio Doria
y Bolado and Violeta Gaddao y Catama @ "Neneth" were
charged with violation of Section 4, in relation to Section
21 of the Dangerous Drugs Act of 1972.
The prosecution contends the offense was committed as
follows: In November 1995, members of the North
Metropolitan District, Philippine National Police (PNP)
Narcotics Command (Narcom), received information from
two (2)civilian informants (CI) that one "Jun" was engaged
in illegal drug activities in Mandaluyong City. The Narcom
agents decided to entrap and arrest "Jun" in a buy-bust
operation. x x x
At 7:20 of the same morning, "Jun" appeared and the CI
introduced PO3 Manlangit as interested in buying one (1)
kilo of marijuana. PO3 Manlangit handed "Jun" the marked
bills worth P1,600.00. "Jun" instructed PO3 Manlangit to
wait for him at the corner of Shaw Boulevard and Jacinto
Street while he got the marijuana from his associate. [5] An
hour later, "Jun" appeared at the agreed place where PO3
Manlangit, the CI and the rest of the team were waiting.
"Jun" took out from his bag an object wrapped in plastic
and gave it to PO3 Manlangit. PO3 Manlangit forthwith
arrested "Jun" as SPO1 Badua rushed to help in the arrest.
They frisked "Jun" but did not find the marked bills on
him. Upon inquiry, "Jun" revealed that he left the money

After trial, the Regional Trial Court, Branch 156, Pasig

City convicted the accused-appellants. The trial court
found the existence of an "organized/syndicated crime
group" and sentenced both accused-appellants to death
and pay a fine of P500,000.00 each.
The assigned errors involve two principal
issues: (1) the validity of the buy-bust operation in
the apprehension of accused-appellant Doria; and
(2) the validity of the warrantless arrest of
accused-appellant Gaddao, the search of her
person and house, and the admissibility of the
pieces of evidence obtained therefrom.
RULING:
Accused-appellants were caught by the police in a
buy-bust operation. A buy-bust operation is a form of
entrapment employed by peace officers as an effective
way of apprehending a criminal in the act of the
commission of an offense. Entrapment has received
judicial sanction when undertaken with due regard to
constitutional and legal safeguards.
xxx
In the American jurisdiction, the term "entrapment"
has a generally negative meaning because it is
understood as the inducement of one to commit a crime

not contemplated by him, for the mere purpose of

instituting a criminal prosecution against him x x x
It is recognized that in every arrest, there is a certain
amount
of
entrapment
used
to
outwit
the
persons violating or about to violate the law. Not every
deception is forbidden. The type of entrapment the law
forbids is the inducing of another to violate the law, the
"seduction" of an otherwise innocent person into a
criminal career. Where the criminal intent originates
in the mind of the entrapping person and the
accused is lured into the commission of the offense
charged in order to prosecute him, there is
entrapment and no conviction may be had. Where,
however, the criminal intent originates in the mind
of the accused and the criminal offense is
completed, the fact that a person acting as a decoy
for the state, or public officials furnished the
accused an opportunity for commission of the
offense, or that the accused is aided in the
commission of the crime in order to secure the
evidence necessary to prosecute him, there is no
entrapment
and
the
accused
must
be
convicted. The law tolerates the use of decoys and other
artifices to catch a criminal.
Entrapment is recognized as a valid defense that can
be raised by an accused and partakes of the nature of a
confession and avoidance. It is a positive defense.
Initially, an accused has the burden of providing sufficient
evidence that the government induced him to commit the
offense. Once established, the burden shifts to the
government to show otherwise. When entrapment is
raised as a defense, American federal courts and a
majority of state courts use the "subjective" or "origin of
intent" test laid down in Sorrells v. United States] to
determine whether entrapment actually occurred. The
focus of the inquiry is on the accused's predisposition to
commit the offense charged, his state of mind and
inclination before his initial exposure to government
agents. All relevant facts such as the accused's mental
and character traits, his past offenses, activities, his
eagerness in committing the crime, his reputation, etc.,
are considered to assess his state of mind before the
crime. The predisposition test emphasizes the accused's
propensity to commit the offense rather than the officer's
misconduct and reflects an attempt to draw a line
between a "trap for the unwary innocent and the trap for
the unwary criminal." If the accused was found to
have been ready and willing to commit the offense
at any favorable opportunity, the entrapment
defense will fail even if a police agent used an
unduly
persuasive
inducement. Some
states,
however, have adopted the "objective" test. This test was
first authoritatively laid down in the case of Grossman v.
State rendered by the Supreme Court of Alaska. Several
other states have subsequently adopted the test by
judicial pronouncement or legislation. Here, the court
considers the nature of the police activity involved and
the propriety of police conduct. The inquiry is focused
on the inducements used by government agents,

on police conduct, not on the accused and his

predisposition to commit the crime. For the goal of
the
defense
is
to
deter
unlawful
police
conduct. The test of entrapment is whether the
conduct of the law enforcement agent was likely to
induce a normally law-abiding person, other than
one who is ready and willing, to commit the
offense; for purposes of this test, it is presumed
that a law-abiding person would normally resist the
temptation to commit a crime that is presented by
the simple opportunity to act unlawfully. Official
conduct that merely offers such an opportunity is
permissible, but overbearing conduct, such as badgering,
cajoling or importuning, or appeals to sentiments such as
pity, sympathy, friendship or pleas of desperate illness,
are not. Proponents of this test believe that courts must
refuse to convict an entrapped accused not because his
conduct falls outside the legal norm but rather because,
even if his guilt has been established, the methods
employed on behalf of the government to bring about the
crime "cannot be countenanced." To some extent, this
reflects the notion that the courts should not become
tainted
by
condoning
law
enforcement
improprieties. Hence, the transactions leading up to the
offense, the interaction between the accused and law
enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the
difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's
conduct would be on a normal person.
xxx
As early as 1910, this Court has examined the
conduct of law enforcers while apprehending the accused
caught in flagrante delicto. x x
It was also in the same case of People v. Lua Chu
and Uy Se Tieng we first laid down the distinction
between
entrapment
vis-a-vis
instigation
or
inducement. Quoting 16 Corpus Juris, we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said
that the practice of entrapping persons into crime for the
purpose of instituting criminal prosecutions is to be
deplored, and while instigation, as distinguished from
mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being
criminal or punishable, the general rule is that it is no
defense to the perpetrator of a crime that facilities
for its commission were purposely placed in his
way, or that the criminal act was done at the
'decoy solicitation' of persons seeking to expose
the criminal, or that detectives feigning complicity
in the act were present and apparently assisting in
its commission. Especially is this true in that class of
cases where the offense is one of a kind habitually
committed, and the solicitation merely furnishes evidence
of a course of conduct. Mere deception by the detective
will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the
detective. The fact that an agent of an owner acts as a

supposed confederate of a thief is no defense to the latter

in a prosecution for larceny, provided the original design
was formed independently of such agent; and where a
person approached by the thief as his confederate
notifies the owner or the public authorities, and, being
authorised by them to do so, assists the thief in carrying
out the plan, the larceny is nevertheless committed. It is
generally held that it is no defense to a prosecution for an
illegal sale of liquor that the purchase was made by a
'spotter,' detective, or hired informer; but there are cases
holding the contrary."

procedures in apprehending drug offenders. Antinarcotics laws, like anti-gambling laws are regulatory
statutes. They are rules of convenience designed to
secure a more orderly regulation of the affairs of society,
and
their
violation
gives
rise
to
crimes mala
prohibita. They are not the traditional type of criminal law
such as the law of murder, rape, theft, arson, etc. that
deal with crimes mala in se or those inherently wrongful
and immoral. x x x

The distinction above-quoted was reiterated in two (2)

decisions of the Court of Appeals. In People v. Galicia, the
appellate court declared that "there is a wide difference
between entrapment and instigation." The instigator
practically induces the would-be accused into the
commission of the offense and himself becomes a coprincipal. In entrapment, ways and means are resorted to
by the peace officer for the purpose of trapping and
capturing the lawbreaker in the execution of his criminal
plan. In People v. Tan Tiong, the Court of Appeals further
declared that "entrapment is no bar to the prosecution
and conviction of the lawbreaker."

It is thus imperative that the presumption, juris

tantum, of regularity in the performance of official
duty by law enforcement agents raised by the
Solicitor
General
be
applied
with
studied
restraint. This presumption should not by itself
prevail over the presumption of innocence and the
constitutionally-protected
rights
of
the
individual. It is the duty of courts to preserve the purity
of their own temple from the prostitution of the criminal
law through lawless enforcement. Courts should not allow
themselves to be used as an instrument of abuse and
injustice lest an innocent person be made to suffer the
unusually severe penalties for drug offenses.

The pronouncement of the Court of Appeals

in People v. Galicia was affirmed by this Court in People v.
Tiu Ua. Entrapment, we further held, is not contrary to
public policy. It is instigation that is deemed contrary to
public policy and illegal.
It can thus be seen that the concept of entrapment
in the American jurisdiction is similar to instigation or
inducement in Philippine jurisprudence. Entrapment in the
Philippines is not a defense available to the accused. It is
instigation that is a defense and is considered an
absolutory cause. To determine whether there is
entrapment or instigation, our courts have mainly
examined the conduct of the apprehending
officers, not the predisposition of the accused to
commit the crime. The "objective" test first applied
in United States v. Phelps has been followed in a series of
similar cases. Nevertheless, adopting the "objective"
approach has not precluded us from likewise applying the
"subjective" test. In People v. Boholst, we applied both
tests by examining the conduct of the police officers in a
buy-bust operation and admitting evidence of the
accused's membership with the notorious and dreaded
Sigue-Sigue Sputnik Gang. We also considered accused's
previous convictions of other crimes and held that his
opprobrious past and membership with the dreaded gang
strengthened
the
state's
evidence
against
him. Conversely, the evidence that the accused did not
sell or smoke marijuana and did not have any criminal
record was likewise admitted in People v. Yutuc thereby
sustaining his defense that led to his acquittal.
The distinction between entrapment and instigation
has proven to be very material in anti-narcotics
operations. In recent years, it has become common
practice for law enforcement officers and agents to
engage in buy-bust operations and other entrapment

xxx

We therefore stress that the "objective" test in buybust operations demands that the details of the purported
transaction must be clearly and adequately shown. This
must start from the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise
or payment of the consideration until the consummation
of the sale by the delivery of the illegal drug subject of
the sale. The manner by which the initial contact was
made, whether or not through an informant, the offer to
purchase the drug, the payment of the "buy-bust" money,
and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject
of strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an offense.
Criminals must be caught but not at all cost. At the same
time, however, examining the conduct of the police
should not disable courts into ignoring the accused's
predisposition to commit the crime. If there is
overwhelming
evidence
of
habitual
delinquency,
recidivism or plain criminal proclivity, then this must also
be considered. Courts should look at all factors to
determine the predisposition of an accused to commit an
offense in so far as they are relevant to determine the
validity of the defense of inducement.
In the case at bar, the evidence shows that it was
the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting,
the informant was accompanied by PO3 Manlangit who
posed as the buyer of marijuana. PO3 Manlangit handed
the marked money to accused-appellant Doria as
advance payment for one (1) kilo of marijuana. Accusedappellant Doria was apprehended when he later returned
and handed the brick of marijuana to PO3 Manlangit.

PO3 Manlangit testified in a frank, spontaneous,

straighforward and categorical manner and his credibility
was not crumpled on cross-examination by defense
counsel. Moreover, PO3 Manlangit's testimony was
corroborated on its material points by SPO1 Badua, his
back-up security. The non-presentation of the confidential
informant is not fatal to the prosecution. Informants are
usually not presented in court because of the need to
hide their identity and preserve their invaluable service to
the police. It is well-settled that except when the
appellant vehemently denies selling prohibited
drugs and there are material inconsistencies in the
testimonies of the arresting officers, or there are
reasons to believe that the arresting officers had
motives to testify falsely against the appellant, or
that only the informant was the poseur-buyer who
actually witnessed the entire transaction, the
testimony of the informant may be dispensed with
as it will merely be corroborative of the
apprehending
officers'
eyewitness
testimonies. There is no need to present the informant
in court where the sale was actually witnessed and
adequately proved by prosecution witnesses.
The inconsistencies in PO3 Manlangit's and SPO1
Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the
veracity and weight of the prosecution evidence. The
source of the money for the buy-bust operation is not a
critical fact in the case at bar. It is enough that the
prosecution proved that money was paid to accusedappellant Doria in consideration of which he sold and
delivered the marijuana.
Contrary to accused-appellant Doria's claim, the one
kilo of marijuana "sold" by him to PO3 Manlangit was
actually identified by PO3 Manlangit himself before the
trial court. After appellants' apprehension, the Narcom
agents placed this one (1) brick of marijuana recovered
from appellant Doria inside the carton box lumping it
together with the ten (10) bricks inside. This is why the
carton box contained eleven (11) bricks of marijuana
when brought before the trial court. The one (1) brick
recovered from appellant Doria and each of the ten (10)
bricks, however, were identified and marked in court. x x
x
We also reject appellant's submission that the fact
that PO3 Manlangit and his team waited for almost one
hour for appellant Doria to give them the one kilo of
marijuana
after
he
"paid" P1,600.00
strains
credulity. Appellant cannot capitalize on the circumstance
that the money and the marijuana in the case at bar did
not change hands under the usual "kaliwaan"
system. There is no rule of law which requires that
in "buy-bust" operations there must be a
simultaneous exchange of the marked money and
the prohibited drug between the poseur-buyer and
the pusher. Again, the decisive fact is that the poseurbuyer received the marijuana from the accused-appellant.

We also hold that the warrantless arrest of

accused-appellant Doria is not unlawful. Warrantless
arrests are allowed in three instances as provided by
Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure, to wit:
"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 in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner
who escaped from a penal establishment or place
where he is serving final judgment or temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
x x x."
Under Section 5 (a), as above-quoted, a person
may be arrested without a warrant if he "has
committed, is actually committing, or is attempting
to commit an offense." Appellant Doria was caught
in the act of committing an offense. When an
accused is apprehended in flagrante delicto as a
result of a buy-bust operation, the police are not
only authorized but duty-bound to arrest him even
without a warrant.
The warrantless arrest of appellant Gaddao, the
search of her person and residence, and the seizure of
the box of marijuana and marked bills are different
matters.
Our Constitution proscribes search and seizure
without a judicial warrant and any evidence obtained
without such warrant is inadmissible for any purpose in
any proceeding. The rule is, however, not absolute.
Search and seizure may be made without a warrant
and the evidence obtained therefrom may be
admissible in the following instances: (1) search
incident to a lawful arrest; (2) search of a moving
motor vehicle; (3) search in violation of customs
laws; (4) seizure of evidence in plain view; (5)
when the accused himself waives his right against
unreasonable searches and seizures.
The prosecution admits that appellant Gaddao was
arrested without a warrant of arrest and the search and
seizure of the box of marijuana and the marked bills were
likewise made without a search warrant. It is claimed,
however, that the warrants were not necessary because

the arrest was made in "hot pursuit" and the search was
an incident to her lawful arrest.

correctly found that the box of marijuana was in plain

view, making its warrantless seizure valid.

To be lawful, the warrantless arrest of appellant

Gaddao must fall under any of the three (3) instances
enumerated in Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure as aforequoted. The direct testimony
of PO3 Manlangit, the arresting officer, however shows
otherwise x x x

Objects falling in plain view of an officer who has a

right to be in the position to have that view are subject to
seizure even without a search warrant and may be
introduced in evidence. The "plain view" doctrine applies
when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which
he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to
seizure. The law enforcement officer must lawfully make
an initial intrusion or properly be in a position from which
he can particularly view the area. In the course of such
lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be
open to eye and hand and its discovery inadvertent.

Accused-appellant Gaddao was not caught redhanded during the buy-bust operation to give ground for
her arrest under Section 5 (a) of Rule 113. She was not
committing any crime. Contrary to the finding of the trial
court, there was no occasion at all for appellant Gaddao
to flee from the policemen to justify her arrest in "hot
pursuit." In fact, she was going about her daily chores
when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be
justified under the second instance of Rule 113. "Personal
knowledge" of facts in arrests without warrant under
Section 5 (b) of Rule 113 must be based upon "probable
cause" which means an "actual belief or reasonable
grounds of suspicion." The grounds of suspicion are
reasonable when, in the absence of actual belief of
the arresting officers, the suspicion that the person
to be arrested is probably guilty of committing the
offense, is based on actual facts , i.e., supported by
circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the
peace officers making the arrest.
Accused-appellant Gaddao was arrested solely on
the basis of the alleged identification made by her coaccused. PO3 Manlangit, however, declared in his direct
examination that appellant Doria named his co-accused
in response to his (PO3 Manlangit's) query as to where
the marked money was. Appellant Doria did not point to
appellant Gaddao as his associate in the drug business,
but as the person with whom he left the marked bills. This
identification does not necessarily lead to the conclusion
that appellant Gaddao conspired with her co-accused in
pushing drugs. Appellant Doria may have left the money
in her house, with or without her knowledge, with or
without any conspiracy. Save for accused-appellant
Doria's word, the Narcom agents had no reasonable
grounds to believe that she was engaged in drug
pushing. If there is no showing that the person who
effected the warrantless arrest had, in his own right,
knowledge of facts implicating the person arrested to the
perpetration of a criminal offense, the arrest is legally
objectionable.
Since the warrantless arrest of accusedappellant Gaddao was illegal, it follows that the
search of her person and home and the subsequent
seizure of the marked bills and marijuana cannot
be deemed legal as an incident to her arrest. This
brings us to the question of whether the trial court

It is clear that an object is in plain view if the

object itself is plainly exposed to sight. The difficulty
arises
when
the
object
is
inside
a
closed
container. Where the object seized was inside a
closed package, the object itself is not in plain
view and therefore cannot be seized without a
warrant. However, if the package proclaims its
contents, whether by its distinctive configuration,
its transparency, or if its contents are obvious to
an observer, then the contents are in plain view
and may be seized. In other words, if the package
is such that an experienced observer could infer
from its appearance that it contains the prohibited
article, then the article is deemed in plain view. It
must be immediately apparent to the police that
the items that they observe may be evidence of a
crime, contraband or otherwise subject to seizure.
xxx
PO3 Manlangit and the police team were at appellant
Gaddao's house because they were led there by appellant
Doria. The Narcom agents testified that they had no
information on appellant Gaddao until appellant Doria
named her and led them to her. Standing by the door of
appellant Gaddao's house, PO3 Manlangit had a view of
the interior of said house. Two and a half meters away
was the dining table and underneath it was a carton
box. The box was partially open and revealed something
wrapped in plastic.
In his direct examination, PO3 Manlangit said that he
was sure that the contents of the box were marijuana
because he himself checked and marked the said
contents. On cross-examination, however, he admitted
that he merely presumed the contents to be marijuana
because it had the same plastic wrapping as the "buybust marijuana." A close scrutiny of the records reveals
that the plastic wrapper was not colorless and
transparent as to clearly manifest its contents to a
viewer. Each of the ten (10) bricks of marijuana in
the box was individually wrapped in old newspaper

and placed inside plastic bags-- white, pink or blue

in color. PO3 Manlangit himself admitted on crossexamination that the contents of the box could be
items other than marijuana. He did not know
exactly what the box contained that he had to ask
appellant Gaddao about its contents.[134] It was not
immediately apparent to PO3 Manlangit that the
content of the box was marijuana. The marijuana was
not in plain view and its seizure without the requisite
search warrant was in violation of the law and the
Constitution. It was fruit of the poisonous tree and should
have been excluded and never considered by the trial
court.
The fact that the box containing about six (6) kilos of
marijuana was found in the house of accused-appellant
Gaddao does not justify a finding that she herself is guilty
of the crime charged. Apropos is our ruling in People v.
Aminnudin, viz:
xxx

TAADA, et al. vs. ANGARA

Petitioners argue mainly (1) that the WTO requires
the Philippines to place nationals and products of
member-countries on the same footing as Filipinos and
local products and (2) that the WTO intrudes, limits
and/or impairs the constitutional powers of both Congress
and the Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled
by Filipinos x x x (to) give preference to qualified Filipinos
(and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution
prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it
prescribe Philippine integration into a global economy
that is liberalized, deregulated and privatized?
I.

THE FACTS

Petitioners Senators Taada, et al. questioned the

constitutionality of the concurrence by the Philippine
Senate of the Presidents ratification of the international
Agreement establishing the World Trade Organization
(WTO). They argued that the WTO Agreement violates
the mandate of the 1987 Constitution to develop a selfreliant and independent national economy effectively
controlled by Filipinos . . . (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods.
Further, they contended that the national treatment
and parity provisions of the WTO Agreement place
nationals and products of member countries on the same
footing as Filipinos and local products, in contravention
of the Filipino First policy of our Constitution, and render

meaningless the phrase effectively controlled by

Filipinos.
II.

THE ISSUE

Does the 1987 Constitution prohibit our country from

participating in worldwide trade liberalization and
economic globalization and from integrating into a global
economy that is liberalized, deregulated and privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained the
concurrence of the Philippine Senate of the Presidents
ratification of the Agreement establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our
country from participating in worldwide trade
liberalization and economic globalization and from
integrating into a global economy that is
liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution
to allow the Senate to ratify the Philippine concurrence in
the WTO Agreement.
[W]hile the Constitution indeed mandates a bias in favor
of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange
with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises
only against foreign competition and trade practices that
are unfair. In other words, the Constitution did not intend
to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of
the Philippine economy. While the Constitution does not
encourage the unlimited entry of foreign goods, services
and investments into the country, it does not prohibit
them either.In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign
competition that
is unfair.

xxx

xxx

xxx

[T]he constitutional policy of a self-reliant and

independent national economy does not necessarily rule
out the entry of foreign investments, goods and services.
It contemplates neither economic seclusion nor
mendicancy in the international community. As
explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the
freedom from undue foreign control of the national

economy, especially in such strategic industries as in the

development of natural resources and public utilities.
The WTO reliance on most favored nation, national
treatment, and trade without discrimination cannot be
struck down as unconstitutional as in fact they are rules
of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on
equality and reciprocity, the fundamental law
encourages industries that are competitive in both
domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development
of robust industries that can compete with the best in the
foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to
compete internationally. And given a free trade
environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a
policy of laissez faire.
xxx

xxx

xxx

It is true, as alleged by petitioners, that broad

constitutional principles require the State to develop an
independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods.
But it is equally true that such principles while serving
as judicial and legislative guides are not in themselves
sources of causes of action. Moreover, there are other
equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a trade
policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of
equality and reciprocity and the promotion of industries
which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said treaty.
So too, the alleged impairment of sovereignty in the
exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of
international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation
and amity with all nations.
That the Senate, after deliberation and voting, voluntarily
and overwhelmingly gave its consent to the WTO
Agreement thereby making it a part of the law of the
land is a legitimate exercise of its sovereign duty and
power. We find no patent and gross arbitrariness or
despotism by reason of passion or personal hostility in
such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97.
But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do
so would constitute grave abuse in the exercise of our
own judicial power and duty. Ineludibly, what the Senate
did was a valid exercise of its authority. As to whether

such exercise was wise, beneficial or viable is outside the

realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to
whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a
matter that our people should determine in electing their
policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political
desire of a member.
xxx
Sovereignty Limited by International Law and
Treaties
This Court notes and appreciates the ferocity and
passion by which petitioners stressed their arguments on
this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of
nations. Unquestionably, the Constitution did not envision
a hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies,
the Constitution adopts the generally accepted principles
of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom,
cooperation and amity, with all nations." By the
doctrine of incorporation, the country is bound by
generally accepted principles of international law,
which are considered to be automatically part of
our own laws. One of the oldest and most fundamental
rules in international law is pacta sunt servanda -international agreements must be performed in
good faith. A treaty engagement is not a mere
moral obligation but creates a legally binding
obligation on the parties x x x. A state which has
contracted valid international obligations is bound
to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations undertaken.
By their inherent nature, treaties really limit or
restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted
by or derived from a convention or pact. After all, states,
like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot
in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed

by the very nature of membership in the family of nations

and (2) limitations imposed by treaty stipulations. As
aptly put by John F.Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations
as one of its 51 charter members, it consented to restrict
its sovereign rights under the concept of sovereignty as
auto-limitation. x x x
xxx
In the foregoing treaties, the Philippines has
effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police
power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of
the other contracting states in granting the same
privilege and immunities to the Philippines, its officials
and its citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But
unless anarchy in international relations is preferred as an
alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade
treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute
resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries,
by subjecting power relations to some form of legal
ordering. In addition, smaller countries typically stand to
gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide
access to a larger set of potential new trading relationship
than in case of the larger country gaining enhanced
success to the smaller countrys market.[48]
The point is that, as shown by the foregoing treaties,
a portion of sovereignty may be waived without violating
the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of x x x cooperation and amity with
all nations.
Fifth Issue: Concurrence Only in the WTO
Agreement and Not in Other Documents Contained
in the Final Act
Petitioners allege that the Senate concurrence in the
WTO Agreement and its annexes -- but not in the other
documents referred to in the Final Act, namely the
Ministerial
Declaration
and
Decisions
and
the
Understanding on Commitments in Financial Services -- is

defective and insufficient and thus constitutes abuse of

discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a
rejection of the Final Act, which in turn was the document
signed by Secretary Navarro, in representation of the
Republic upon authority of the President. They contend
that the second letter of the President to the
Senate which enumerated what constitutes the Final Act
should have been the subject of concurrence of the
Senate.
A final act, sometimes called protocol de clture, is
an instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference. It is not the treaty itself. It is rather a
summary of the proceedings of a protracted conference
which may have taken place over several years.

SENATE vs. ERMITA

The present consolidated petitions for certiorari and
prohibition proffer that the President has abused such
power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and
offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
= Committee of the Senate as a whole issued invitations
to various officials of the Executive Department for
them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project
of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan
Ponce Enrile urging the Senate to investigate the
alleged overpricing and other unlawful provisions
of the contract covering the North Rail Project.
President issued E.O. 464, "Ensuring Observance of
the Principle of Separation of Powers, Adherence
to the Rule on Executive Privilege and Respect for
the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," which,
pursuant to Section 6 thereof, took effect immediately.
The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before

Congress. In accordance with Article VI, Section 22 of
the Constitution and to implement the Constitutional
provisions on the separation of powers between co-equal
branches of the government, all heads of departments of
the Executive Branch of the government shall secure the
consent of the President prior to appearing before either
House of Congress.
When the security of the State or the public interest so
requires and the President so states in writing, the
appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive
Privilege.
(a) Nature and Scope. - The rule of confidentiality based
on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under
the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees
shall not use or divulge confidential or classified
information officially known to them by reason of their
office and not made available to the public to prejudice
the public interest.
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order, including:

Senior officials of executive departments who in the

judgment of the department heads are covered by the
executive privilege;
Generals and flag officers of the Armed Forces of the
Philippines and such other officers who in the judgment of
the Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in
the judgment of the Chief of the PNP are covered by the
executive privilege;
Senior national security officials who in the judgment of
the National Security Adviser are covered by the
executive privilege; and
Such other officers as may be determined by the
President.
SECTION 3. Appearance of Other Public Officials Before
Congress. All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the
observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect
for the rights of public officials appearing in inquiries in
aid of legislation. (Emphasis and underscoring supplied)

Conversations and correspondence between the President

and the public official covered by this executive order
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995;
Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);

Senate President Drilon received from Executive

Secretary Ermita a copy of E.O. 464, and another
letter informing him "that officials of the Executive
Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same
without the consent of the President, pursuant to [E.O.
464]" and that "said officials have not secured the
required consent from the President."

Military, diplomatic and other national security matters

which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).

Despite the communications received from Executive

Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.

Information between inter-government agencies prior to

the conclusion of treaties and executive agreements
(Chavez v. Presidential Commission on Good Government,
G.R. No. 130716, 9 December 1998);

For defying President Arroyos order barring military

personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to
face court martial proceedings.

Discussion in close-door Cabinet meetings (Chavez v.

Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);

1. Whether E.O. 464 contravenes the power

of inquiry vested in Congress;

Matters affecting national security and public order

(Chavez v. Public Estates Authority, G.R. No. 133250, 9
July 2002).

2. Whether E.O. 464 violates the right of the

people to information on matters of public
concern; and

(b) Who are covered. The following are covered by this

executive order:

3. Whether respondents have committed

grave abuse of discretion when they

implemented E.O. 464 prior to its

publication in a newspaper of general
circulation.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of
executive officials before Congress, deprives Congress of
the information in the possession of these officials. To
resolve the question of whether such withholding of
information violates the Constitution, consideration of the
general power of Congress to obtain information,
otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in
Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives
or any of its respective committees may conduct inquiries
in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
(Underscoring supplied)
That this power of inquiry is broad enough to cover
officials of the executive branch may be deduced
from the same case. The power of inquiry, the
Court therein ruled, is co-extensive with the power
to legislate. The matters which may be a proper subject
of legislation and those which may be a proper subject of
investigation are one. It follows that the operation of
government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to
the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved
government agencies created by Congress and officers
whose positions it is within the power of Congress to
regulate or even abolish."
Since Congress has authority to inquire into the
operations of the executive branch, it would be
incongruous to hold that the power of inquiry does
not extend to executive officials who are the most
familiar with and informed on executive
operations.

such a result as occurred in Bengzon is to indicate in its

invitations to the public officials concerned, or to any
person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement
in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for
speculation on the part of the person invited on whether
the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial
safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be
done in accordance with the Senate or Houses
duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry
conducted without duly published rules of
procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such
inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in
the Bill of Rights.
These abuses are, of course, remediable before the
courts, upon the proper suit filed by the persons affected,
even if they belong to the executive branch. Nonetheless,
there may be exceptional circumstances, none appearing
to obtain at present, wherein a clear pattern of abuse of
the legislative power of inquiry might be established,
resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of
Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall
these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are
still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege."
Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive
privilege is crucial for determining the constitutionality of
E.O. 464.
Executive privilege

xxx

That a type of information is recognized as privileged

does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining
the validity of a claim of privilege, the question that must
be asked is not only whether the requested information
falls within one of the traditional privileges, but also
whether that privilege should be honored in a given
procedural setting.71

For one, as noted in Bengzon v. Senate Blue Ribbon

Committee, the inquiry itself might not properly be in aid
of legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid

In this jurisdiction, the doctrine of executive privilege was

recognized by this Court in Almonte v. Vasquez. Almonte
used the term in reference to the same privilege subject
of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of

his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the
privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him
must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately.
These are the considerations justifying a presumptive
privilege for Presidential communications. The privilege is
fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
xxx
In Chavez v. PCGG,79 the Court held that this jurisdiction
recognizes the common law holding that there is a
"governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and
other national security matters." The same case held that
closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority, the Court
ruled that the right to information does not extend to
matters recognized as "privileged information under the
separation of powers," by which the Court meant
Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held
that information on military and diplomatic secrets and
those affecting national security, and information on
investigations of crimes by law enforcement agencies
before the prosecution of the accused were exempted
from the right to information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts,
or the public, is recognized only in relation to certain
types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information
by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive
secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the
officials covered by them to secure the consent of the
President prior to appearing before Congress. There are

significant differences between the two provisions,

however, which constrain this Court to discuss the validity
of these provisions separately.
Section 1 specifically applies to department heads. It
does not, unlike Section 3, require a prior determination
by any official whether they are covered by E.O. 464. The
President herself has, through the challenged order, made
the determination that they are. Further, unlike also
Section 3, the coverage of department heads under
Section 1 is not made to depend on the department
heads possession of any information which might be
covered by executive privilege. In fact, in marked contrast
to Section 3 vis--vis Section 2, there is no reference to
executive privilege at all. Rather, the required prior
consent under Section 1 is grounded on Article VI, Section
22 of the Constitution on what has been referred to as the
question hour.
SECTION 22. The heads of departments may upon their
own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House
shall provide, appear before and be heard by such House
on any matter pertaining to their departments. Written
questions shall be submitted to the President of the
Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance.
Interpellations shall not be limited to written questions,
but may cover matters related thereto. When the security
of the State or the public interest so requires and the
President so states in writing, the appearance shall be
conducted in executive session.
Determining the validity of Section 1 thus requires
an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the
question hour must be interpreted vis--vis Section
21 which provides for the power of either House of
Congress to "conduct inquiries in aid of
legislation."
In the context of a parliamentary system of government,
the "question hour" has a definite meaning. It is a
period of confrontation initiated by Parliament to
hold the Prime Minister and the other ministers
accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain
as the question period. There was a specific provision for
a question hour in the 1973 Constitution 86 which made
the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system
established by that Constitution, where the ministers are
also members of the legislature and are directly
accountable to it.
The framers of the 1987 Constitution removed the
mandatory nature of such appearance during the
question hour in the present Constitution so as to
conform more fully to a system of separation of
powers. To that extent, the question hour, as it is

presently understood in this jurisdiction, departs from the

question period of the parliamentary system. That
department heads may not be required to appear
in a question hour does not, however, mean that
the legislature is rendered powerless to elicit
information from them in all circumstances. In fact,
in light of the absence of a mandatory question
period, the need to enforce Congress right to
executive information in the performance of its
legislative function becomes more imperative. As
Schwartz observes:
xxx
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered
as pertaining to the same power of Congress. One
specifically relates to the power to conduct inquiries in aid
of legislation, the aim of which is to elicit information that
may be used for legislation, while the other pertains to
the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress
oversight function.
When Congress merely seeks to be informed on
how department heads are implementing the
statutes which it has issued, its right to such
information is not as imperative as that of the
President to whom, as Chief Executive, such
department heads must give a report of their
performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers,
states that Congress may only request their appearance.
Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.
In fine, the oversight function of Congress may be
facilitated by compulsory process only to the extent that
it is performed in pursuit of legislation. This is consistent
with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the
appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis
in the principle of separation of powers. While the
executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of
Congress to legislate by refusing to comply with its
demands for information.
When Congress exercises its power of inquiry, the
only way for department heads to exempt
themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact
that they are department heads. Only one
executive official may be exempted from this power
the President on whom executive power is

vested, hence, beyond the reach of Congress

except through the power of impeachment. It is
based on her being the highest official of the
executive branch, and the due respect accorded to
a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are
also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body;
hence, each member thereof is exempt on the basis not
only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the
judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral
argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section
22, Article VI of the Constitution, the Court now proceeds
to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to
Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of
legislation, must be construed as limited in its
application to appearances of department heads in
the question hour contemplated in the provision of
said Section 22 of Article VI. The reading is
dictated by the basic rule of construction that
issuances must be interpreted, as much as
possible, in a way that will render it constitutional.
The requirement then to secure presidential
consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its
face. For under Section 22, Article VI of the
Constitution, the appearance of department heads
in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to
appearances of department heads in inquiries in
aid of legislation. Congress is not bound in such
instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the
President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials
enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior
officials of executive departments, all officers of the AFP
and the PNP, and all senior national security officials who,
in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser),
are "covered by the executive privilege."

The enumeration also includes such other officers as may

be determined by the President. Given the title of Section
2 "Nature, Scope and Coverage of Executive Privilege"
, it is evident that under the rule of ejusdem generis,
the determination by the President under this provision is
intended to be based on a similar finding of coverage
under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464
virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive
privilege, as discussed above, is properly invoked in
relation to specific categories of information and not to
categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with
the nature, scope and coverage of executive privilege,
the reference to persons being "covered by the executive
privilege" may be read as an abbreviated way of saying
that the person is in possession of information which is, in
the judgment of the head of office concerned, privileged
as defined in Section 2(a). The Court shall thus proceed
on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or
by the President that an official is "covered by the
executive privilege," such official is subjected to the
requirement that he first secure the consent of the
President prior to appearing before Congress. This
requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President.
The proviso allowing the President to give its consent
means nothing more than that the President may reverse
a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that
such official is in possession of information that is covered
by executive privilege. This determination then becomes
the basis for the officials not showing up in the legislative
investigation.
In view thereof, whenever an official invokes E.O.
464 to justify his failure to be present, such
invocation must be construed as a declaration to
Congress that the President, or a head of office
authorized by the President, has determined that
the requested information is privileged, and that
the President has not reversed such determination.
Such declaration, however, even without
mentioning the term "executive privilege,"
amounts to an implied claim that the information is
being withheld by the executive branch, by
authority of the President, on the basis of
executive privilege. Verily, there is an implied claim
of privilege.

While there is no Philippine case that directly addresses

the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that
certain information in the possession of the executive
may validly be claimed as privileged even against
Congress. Thus, the case holds:
There is no claim by PEA that the information demanded
by petitioner is privileged information rooted in the
separation of powers. The information does not cover
Presidential conversations, correspondences, or
discussions during closed-door Cabinet meetings which,
like internal-deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of
information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure
by interested parties, is essential to protect the
independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. This
is not the situation in the instant case. (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be
dismissed outright as invalid by the mere fact that
it sanctions claims of executive privilege. This
Court must look further and assess the claim of
privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed
on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it,
there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive
Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While
Section 2(a) enumerates the types of information that are
covered by the privilege under the challenged order,
Congress is left to speculate as to which among them is
being referred to by the executive. The enumeration is
not even intended to be comprehensive, but a mere
statement of what is included in the phrase "confidential
or classified information between the President and the
public officers covered by this executive order."
Certainly, Congress has the right to know why the
executive considers the requested information privileged.
It does not suffice to merely declare that the President, or
an authorized head of office, has determined that it is so,
and that the President has not overturned that
determination. Such declaration leaves Congress in the
dark on how the requested information could be classified
as privileged. That the message is couched in terms that,
on first impression, do not seem like a claim of privilege

only makes it more pernicious. It threatens to make

Congress doubly blind to the question of why the
executive branch is not providing it with the information
that it has requested.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be
clearly asserted.
The claim of privilege under Section 3 of E.O. 464 in
relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise
and certain reasons for the claim, it merely invokes E.O.
464, coupled with an announcement that the President
has not given her consent. It is woefully insufficient for
Congress to determine whether the withholding of
information is justified under the circumstances of each
case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.
No infirmity, however, can be imputed to Section
2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b),
on what is covered by executive privilege. It does
not purport to be conclusive on the other branches
of government. It may thus be construed as a mere
expression of opinion by the President regarding
the nature and scope of executive privilege.
Petitioners, however, assert as another ground for
invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section
2(b). Petitioner Senate of the Philippines, in particular,
cites the case of the United States where, so it claims,
only the President can assert executive privilege to
withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides
that, once the head of office determines that a certain
information is privileged, such determination is presumed
to bear the Presidents authority and has the effect of
prohibiting the official from appearing before Congress,
subject only to the express pronouncement of the
President that it is allowing the appearance of such
official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to
the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with
respect to information the confidential nature of
which is crucial to the fulfillment of the unique role
and responsibilities of the executive branch,105 or
in those instances where exemption from
disclosure is necessary to the discharge of highly
important executive responsibilities.106 The

doctrine of executive privilege is thus premised on

the fact that certain informations must, as a
matter of necessity, be kept confidential in pursuit
of the public interest. The privilege being, by
definition, an exemption from the obligation to
disclose information, in this case to Congress, the
necessity must be of such high degree as to
outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the privilege,
the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course
authorize the Executive Secretary to invoke the privilege
on her behalf, in which case the Executive Secretary must
state that the authority is "By order of the President,"
which means that he personally consulted with her. The
privilege being an extraordinary power, it must be
wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize
her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant
case where the authorization is not explicit but by mere
silence. Section 3, in relation to Section 2(b), is further
invalid on this score.
It follows, therefore, that when an official is being
summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the President
or the Executive Secretary of the possible need for
invoking the privilege. This is necessary in order to
provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls
for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer
bound to respect the failure of the official to appear
before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the
rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by
Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be
respected."
In light of the above discussion of Section 3, it is clear
that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be
invalidated. That such authorization is partly motivated
by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.
Right to Information

E.O 464 is concerned only with the demands of Congress

for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for
information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry,
but the right of the people to information.
There are, it bears noting, clear distinctions between the
right of Congress to information which underlies the
power of inquiry and the right of the people to
information on matters of public concern. For one, the
demand of a citizen for the production of documents
pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum issued
by Congress. Neither does the right to information grant a
citizen the power to exact testimony from government
officials. These powers belong only to Congress and not to
an individual citizen.
Thus, while Congress is composed of representatives
elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its power
of inquiry, the people are exercising their right to
information.
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives
the people of information which, being presumed to be in
aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to
information which they can use in formulating their own
opinions on the matter before Congress opinions which
they can then communicate to their representatives and
other government officials through the various legal
means allowed by their freedom of expression. Thus holds
Valmonte v. Belmonte:
It is in the interest of the State that the channels for free
political discussion be maintained to the end that the
government may perceive and be responsive to the
peoples will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues and
have access to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information
as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the
legislatures power of inquiry.
MANALO vs. SISTOZA

In this special civil action for Prohibition under Rule

65 of the Revised Rules of Court, petitioners question the
constitutionality
and
legality
of
the
permanent
appointments issued by former President Corazon C.
Aquino to the respondent senior officers of the Philippine
National Police who were promoted to the ranks of Chief
Superintendent and Director without their appointments
submitted to the Commission on Appointments for
confirmation under Section 16, Article VII of the 1987
Constitution and Republic Act 6975 otherwise known as
the Local Government Act of 1990. Impleaded in the case
is the former Secretary of Budget and Management
Salvador M. Enriquez III, who approved and effected the
disbursements for the salaries and other emoluments of
subject police officers.
Without their names submitted to the Commission on
Appointments for confirmation, the said police officers
took their oath of office and assumed their respective
positions. Thereafter, the Department of Budget and
Management, under the then Secretary Salvador M.
Enriquez III, authorized disbursements for their salaries
and other emoluments.
On October 21, 1992, the petitioner brought before
this Court this present original petition for prohibition, as
a taxpayer suit, to assail the legality of subject
appointments and disbursements made therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and
discharging the functions attached thereto, despite their
invalid appointments, in view of the failure to secure the
required confirmation of the Commission on
Appointments as required by the Constitution and the
law, are acting without or in excess of their jurisdiction or
with grave abuse of discretion, considering that :
A. Republic Act 6975 is a valid law that duly requires
confirmation of the appointments of officers from the rank
of senior superintendent and higher by the Commission
on Appointments;
B. The Philippine National Police is akin to the Armed
Forces where the Constitution specifically requires
confirmation by the Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
disbursements in favor of respondent officers despite the
unconstitutionality and illegality of their appointments is
acting without or in excess of his jurisdiction or with grave
abuse of discretion.
RULING:
The power to make appointments is vested in
the Chief Executive by Section 16, Article VII of the
Constitution, which provides:

Section 16. The President shall nominate and, with

the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts,
or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
The aforecited provision of the Constitution has been
the subject of several cases on the issue of the restrictive
function of the Commission on Appointments with respect
to the appointing power of the President. This court
touched upon the historical antecedent of the said
provision in the case of Sarmiento III vs. Mison[5] in which
it was ratiocinated upon that Section 16 of Article
VII of the 1987 Constitution requiring confirmation
by the Commission on Appointments of certain
appointments
issued
by
the
President
contemplates a system of checks and balances
between the executive and legislative branches of
government. Experience showed that when almost all
presidential appointments required the consent of the
Commission on Appointments, as was the case under the
1935 Constitution, the commission became a venue of
horse-trading and similar malpractices. [6] On the other
hand, placing absolute power to make appointments in
the President with hardly any check by the legislature, as
what happened under 1973 Constitution, leads to abuse
of such power. Thus was perceived the need to establish
a middle ground between the 1935 and 1973
Constitutions. The framers of the 1987 Constitution
deemed it imperative to subject certain high positions in
the government to the power of confirmation of the
Commission on Appointments and to allow other positions
within the exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in
the leading case of Sarmiento III vs. Mison [7], and in the
subsequent cases of Bautista vs. Salonga [8], Quintos-Deles
vs. Constitutional Commission[9], and Calderon vs.
Carale[10]; under Section 16, Article VII, of the
Constitution, there are four groups of officers of the
government to be appointed by the President:

First, the heads of the executive departments,

ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by
law to appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
It is well-settled that only presidential
appointments belonging to the first group require
the
confirmation
by
the
Commission
on
Appointments. The appointments of respondent
officers who are not within the first category, need
not be confirmed by
the Commission on
Appointments. As held in the case of Tarrosa vs.
Singson[11], Congress cannot by law expand the power of
confirmation of the Commission on Appointments and
require
confirmation
of
appointments
of
other
government officials not mentioned in the first sentence
of Section 16 of Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26
and 31 of Republic Act 6975 which empower the
Commission on Appointments to confirm the
appointments
of
public
officials
whose
appointments are not required by the Constitution
to be confirmed. But the unconstitutionality of the
aforesaid sections notwithstanding, the rest of Republic
Act 6975 stands. It is well-settled that when provisions of
law declared void are severable from the main statute
and the removal of the unconstitutional provisions would
not affect the validity and enforceability of the other
provisions, the statute remains valid without its voided
sections.[12]
It is petitioners submission that the Philippine
National Police is akin to the Armed Forces of the
Philippines and therefore, the appointments of police
officers whose rank is equal to that of colonel or naval
captain require confirmation by the Commission on
Appointments.
This
contention
is
equally
untenable. The
Philippine National Police is separate and distinct
from the Armed Forces of the Philippines. The
Constitution,
no
less,
sets
forth
the
distinction. Under Section 4 of Article XVI of the 1987
Constitution,
The Armed Forces of the Philippines shall be composed of
a citizen armed force which shall undergo military training

and service, as may be provided by law. It shall keep a

regular force necessary for the security of the State.

Facts:
52 party-list groups and organizations filed
separate petitions with the SC in an effort to reverse
various resolutions by the Comelec disqualifying them
from the May 2013 party-list race. The Comelec, in its
assailed resolutions issued in October, November and
December of 2012, ruled, among others, that these partylist groups and organizations failed to represent a
marginalized
and
underrepresented
sector,
their
nominees did not come from a marginalized and
underrepresented
sector,
and/or
some
of
the
organizations or groups were not truly representative of
the sector they intend to represent in Congress.

On the other hand, Section 6 of the same Article of

the Constitution ordains 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.
To so distinguish the police force from the armed
forces, Congress enacted Republic Act 6975 which states
in part:

Issue:
Whether COMELEC committed grave abuse of
discretion in disqualifying petitioners from participating in
the May 2013 party-list election.

Section 2. Declaration of policy - It is hereby declared to

be the policy of the State to promote peace and order,
ensure public safety and further strengthen local
government capability aimed towards the effective
delivery of the basic services to the citizenry through the
establishment of a highly efficient and competent police
force that is national in scope and civilian in
character. xxx
The policy force shall be organized, trained and equipped
primarily for the performance of police functions. Its
national scope and civilian character shall be
paramount. No element of the police force shall be
military nor shall any position thereof be occupied by
active members of the Armed Forces of the Philippines.
Thereunder, the police force is different from
and independent of the armed forces and the ranks
in the military are not similar to those in the
Philippine National Police. Thus, directors and chief
superintendents of the PNP, such as the herein
respondent police officers, do not fall under the
first category of presidential appointees requiring
the
confirmation
by
the
Commission
on
Appointments.
In view of the foregoing disquisition and conclusion,
the respondent former Secretary Salvador M. Enriquez III
of the Department of Budget and Management, did not
act with grave abuse of discretion in authorizing and
effecting disbursements for the salaries and other
emoluments of the respondent police officers whose
appointments are valid.

Ruling:
NO. COMELEC merely followed the guidelines set
in the cases of Ang Bagong Bayani and BANAT. However,
cases were remanded back to the COMELEC because
petitioners may now possibly qualify to participate in the
coming 13 May 2013 party-list elections under the new
parameters prescribed by this Court.
In determining who may participate in the partylist elections, the COMELEC shall adhere to the following
parameters:
1.

Three different groups may participate in the party-list

system: (1) national parties or organizations, (2) regional
parties or organizations, and (3) sectoral parties or
organizations.

2.

National parties or organizations and regional parties or

organizations do not need to organize along sectoral lines
and do not need to represent any "marginalized and
underrepresented" sector.

3.

Political parties can participate in party-list elections

provided they register under the party-list system and do
not field candidates in legislative district elections. A
political party, whether major or not, that fields
candidates in legislative district elections can participate
in party-list elections only through its sectoral wing that
can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party,
and is linked to a political party through a coalition.

4.

Sectoral parties or organizations may either be

"marginalized and underrepresented" or lacking in "welldefined political constituencies." It is enough that their
principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
workers. The sectors that lack "well-defined political
constituencies" include professionals, the elderly, women,
and the youth.

5.

A majority of the members of sectoral parties or

organizations that represent the "marginalized and

ATONG PAGLAUM, INC., represented by its

President, Mr. Alan Igot v. COMMISSION ON
ELECTIONS
G.R. No. 203766, April 2, 2013, Carpio, J.
Sectoral parties or organizations may either be
"marginalized and underrepresented" or lacking in "welldefined political constituencies." It is enough that their
principal advocacy pertains to the special interest and
concerns of their sector.

underrepresented" must belong to the "marginalized and

underrepresented" sector they represent. Similarly, a
majority of the members of sectoral parties or
organizations
that
lack
"well-defined
political
constituencies" must belong to the sector they represent.
The nominees of sectoral parties or organizations that
represent the "marginalized and underrepresented," or
that represent those who lack "well-defined political
constituencies," either must belong to their respective
sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional
parties or organizations must be bona-fide members of
such parties or organizations.
6.

1.

2.

RULING:
1.

National, regional, and sectoral parties or organizations

shall not be disqualified if some of their nominees are
disqualified, provided that they have at least one
nominee who remains qualified.

MA. J. ANGELINA G. MATIBAG v. ALFREDO L.

BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO
A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE
GUZMAN
G.R. NO. 149036, APRIL 2, 2002, J. CARPIO

FACTS:

Petitioner Ma. J. Angelina G. Matibag filed the

instant petition questioning the appointments Matibag
claims that the ad interim appointments of Benipayo,
Borra and Tuason violate the prohibitions on temporary
appointments and reappointments of its Chairman and
members.
Issues:

NO. An ad interim appointment is a permanent

appointment because it takes effect immediately and can
no longer be withdrawn by the President once the
appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on
Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment
permanent in character by making it effective until
disapproved by the Commission on Appointments or until
the next adjournment of Congress. Thus, the ad interim
appointment remains effective until such disapproval or
next adjournment, signifying that it can no longer be
withdrawn or revoked by the President. The fear that the
President can withdraw or revoke at any time and for any
reason an ad interim appointment is utterly without basis.
In the instant case, the President did in fact
appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the
Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during
the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes vs. Yorac and
Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista. The ad interim appointments of Benipayo, Borra
and Tuason are expressly allowed by the Constitution
which authorizes the President, during the recess of
Congress, to make appointments that take effect
immediately.

An ad interim appointment is a permanent

appointment because it takes effect immediately and can
no longer be withdrawn by the President once the
appointee has qualified into office. In order to determine
whether the renewal of an ad interim appointment
violates the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution we must distinguish
those which weredisapproved from those which were bypassed, for the by-passed reappointment is valid and
allowed while the disapproved is not and can no longer
be renewed.

On March 22, 2001, President Gloria Macapagal

Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman, and Borra and Tuason as COMELEC
Commissioners, each for a term of seven years and all
expiring on February 2, 2008. However, the Commission
on Appointments did not act on said appointments.
Consequently, On June 1, 2001, President Arroyo renewed
the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of
seven years, expiring on February 2, 2008. Congress
adjourned before the Commission on Appointments could
act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad interim
appointments of Benipayo, Borra and Tuason to the same
positions.

Whether the assumption of office by Benipayo, Borra and

Tuason on the basis of the ad interim appointments
issued by the President amounts to a temporary
appointment prohibited by Section 1 (2), Article IX-C of
the Constitution.
Whether the renewal of their ad interim appointments
and subsequent assumption of office to the same
positions violate the prohibition on reappointment under
Section 1 (2), Article IX-C of the Constitution.

2.

NO. We must distinguish those which were disapproved

from those which were by-passed. An ad interim
appointee
disapproved
by
the
Commission
on
Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its
checking power on the appointing authority of the
President. On the contrary a by-passed ad interim
appointment can be revived by a new ad interim
appointment because there is no final disapproval under
Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving
beyond the fixed term of seven years.
The ad interim appointments and subsequent
renewals of appointments of Benipayo, Borra and Tuason
do not violate the prohibition on reappointments because
there were no previous appointments that were confirmed
by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of
appointments will also not breach the seven-year term
limit because all the appointments and renewals of
appointments of Benipayo, Borra and Tuason are for a
fixed term expiring on February 2, 2008. Any delay in
their confirmation will not extend the expiry date of their

terms of office. The continuing renewal of the ad interim

appointment of these three respondents, for so long as
their terms of office expire on February 2, 2008, does not
violate the prohibition on reappointments in Section 1 (2),
Article IX-C of the Constitution.

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:
The IBP has not sufficiently complied with the
requisites of standing in this case.

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs. HON. RONALDO B. ZAMORA, GEN.
PANFILO M. LACSON, GEN. EDGAR B.
AGLIPAY,
and
GEN.
ANGELO
REYES,respondents.
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 (the
LOI) which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be
conducted. 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. 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.

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.
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.
The President did not commit grave abuse of discretion in calling out the Marines.

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.
As framed by the parties, the underlying issues are
the scope of presidential powers and limits, and the
extent of judicial review. x x x 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. 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
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 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.
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. 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.[] Moreover, the jurisdiction to
delimit constitutional boundaries has been given to this
Court. 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. 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.
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 of habeas 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:

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. 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 x x x

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 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-inChief 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... 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 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. x x x
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.
xxx

DAVID vs. ARROYO

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?
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
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. 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.
For their part, petitioners cited the events
that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President
announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People
Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the
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.

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.
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 theDaily 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.
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-inChief power has reached its distilled point from the
indulgent days of Barcelon v. Baker70 and Montenegro v.
Castaneda71 to
the
volatile
era
of Lansang
v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line
defining political questions, particularly those questions
in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government.75Barcelon 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 or justiciable question. 78 Then came GarciaPadilla 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
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,
Article VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion
Second provision:
and to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me
personally or upon my direction;
Third provision:
as provided in Section 17, Article XII of the Constitution
do hereby declare a State of National Emergency.
First Provision: Calling-out Power
The first provision pertains to the 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.

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.

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.

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 in Sanlakas was Section 4, Chapter 2, Book II of the
Revised Administrative Code of 1987, which provides:

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.

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.

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.

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.

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

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
Police118 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-inChief, 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.

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.

xxx
This is an area that needs delineation.
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.

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:

Can President Arroyo enforce obedience to all decrees

and laws through the military?

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.

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.

(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.

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?

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
restrictions as the Congress may prescribe.

such

(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 x x
x
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 privately-

owned public utility or business affected with public

interest. Nor can he determine when such exceptional
circumstances
have
ceased.
Likewise, without
legislation, the President has no power to point out the
types of businesses affected with public interest that
should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State
under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.
c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly,
that which pertains to security, is that military necessity
and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of
conflict, many rights are curtailed and trampled upon.
Here, the right against unreasonable search and
seizure;
the
right
against
warrantless
arrest; and the freedom of speech, of expression, of
the press, and of assembly under the Bill of Rights
suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate direct
injury.
In G.R. No. 171396, petitioners David and Llamas
alleged that, on February 24, 2006, they were arrested
without warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I. The arresting officers
cited PP 1017 as basis of the arrest.
In G.R.
No.
171409,
petitioners
Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February
25, 2006, the CIDG operatives raided and ransacked
without warrant their office. Three policemen were
assigned to guard their office as a possible source of
destabilization. Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLUKMU 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
misabused135 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 implemen tor
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.138This is logical. x x x
President Arroyo issued G.O. No. 5 to carry into effect the
provisions of PP 1017. General orders are acts and
commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the
Philippines. They are internal rules issued by the
executive officer to his subordinates precisely for
the proper and efficient administration of law. Such
rules and regulations create no relation except between
the official who issues them and the official who receives
them.139 They are based on and are the product of, a
relationship in which power is their source, and
obedience, their object.140 For these reasons, one
requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
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.
xxx
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 Account144 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. 880145 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 x.
Neither of the two (2) exceptions mentioned above
justifies petitioner Davids warrantless arrest. During the
inquest
for
the
charges
of
inciting
to
sedition and violation of BP 880, all that the arresting
officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective Oust
Gloria Now and their erroneous assumption that
petitioner
David
was
the
leader
of
the

rally.146 Consequently, the Inquest Prosecutor ordered his

immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing
the subject t-shirt and even if he was wearing it, such fact
is insufficient to charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence
for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the
rally.147
But what made it doubly worse for petitioners David et
al. is that not only was their right against warrantless
arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.
Assembly means a right on the part of the citizens to
meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the
case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the
government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the
use of such place, and not for the assembly itself, may be
validly required.
The ringing truth here is that petitioner David, et al. were
arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned
from circumstances, the charges of inciting to
sedition and violation
of
BP
880 were
mere
afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers conduct.
In De Jonge v. Oregon, 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 the Daily Tribune except the
security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily
Tribune offices.

Thereafter, a wave of warning came from government

officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was meant to show a
strong presence, to tell media outlets not to
connive or do anything that would help the rebels
in bringing down this government. Director General
Lomibao further stated that if they do not follow the
standards and the standards are if they would
contribute to instability in the government, or if
they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 we will recommend
a takeover.
National
Telecommunications
Commissioner Ronald Solis urged television and radio
networks to cooperate with the government for the
duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules
set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on
Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection
with one specific offence to be determined personally by
the judge after examination under oath or affirmation of
the
complainant
and
the
witnesses
he
may
produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of
the lawful occupant thereof or any member of his
family or in the absence of the latter, in the presence of
two (2) witnesses of sufficient age and discretion residing
in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime,
unless the property is on the person or in the place
ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night.
All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of
the press. The best gauge of a free and democratic
society rests in the degree of freedom enjoyed by its
media. In the Burgos v. Chief of Staff152 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

growth of the citizenry.

enlightenment

and

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 antigovernment 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,

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-inChief 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.

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

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
governed.158

of

the

government

to

the