David v.

Arroyo
G.R. No. 171396
489 SCRA 161
May 3, 2006
The Executive Branch Presidential Proclamation 1017 Take Care Clause Take Over Power
Calling Out Power
Bill of Rights Freedom of Speech Overbreadth
Facts:
In February 2006, due to the escape of some Magdalo members and the discovery of a
plan (Oplan Hackle I) to assassinate the president, then president Gloria Macapagal-Arroyo
(GMA) issued Presidential Proclamation 1017 (PP1017) and is to be implemented by General
Order No. 5 (GO 5). The said law was aimed to suppress lawlessness and the connivance of
extremists to bring down the government.
Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time
revoked all permits issued for rallies and other public organization/meeting. Notwithstanding the
cancellation of their rally permit, Kilusang Mayo Uno (KMU) head Randolf David proceeded to
rally which led to his arrest.
Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by the
CIDG and they seized and confiscated anti-GMA articles and write ups. Later still, another
known anti-GMA news agency (Malaya) was raided and seized. On the same day, Beltran of
Anakpawis, was also arrested. His arrest was however grounded on a warrant of arrest issued
way back in 1985 for his actions against Marcos. His supporters cannot visit him in jail because
of the current imposition of PP 1017 and GO 5.
In March, GMA issued PP 1021 which declared that the state of national emergency
ceased to exist. David and some opposition Congressmen averred that PP1017 is unconstitutional
for it has no factual basis and it cannot be validly declared by the president for such power is
reposed in Congress. Also such declaration is actually a declaration of martial law. OlivaresCacho also averred that the emergency contemplated in the Constitution are those of natural
calamities and that such is an overbreadth. Petitioners claim that PP 1017 is an overbreadth

because it encroaches upon protected and unprotected rights. The Sol-Gen argued that the issue
has become moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of
PP 1021. The Sol-Gen averred that PP 1017 is within the presidents calling out power, take care
power and take over power.
ISSUE:
Whether or not PP 1017 and GO 5 is constitutional.
HELD:
PP 1017 and its implementing GO are partly constitutional and partly unconstitutional.
The issue cannot be considered as moot and academic by reason of the lifting of the questioned
PP. It is still in fact operative because there are parties still affected due to the alleged violation of
the said PP. Hence, the SC can take cognition of the case at bar. The SC ruled that PP 1017 is
constitutional in part and at the same time some provisions of which are unconstitutional. The SC
ruled in the following way;
Resolution by the SC on the Factual Basis of its declaration
The petitioners were not able to prove that GMA has no factual basis in issuing PP 1017 and GO
5. 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, GMA
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.
Resolution by the SC on the Overbreadth Theory

First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their
faces statutes in free speech cases. The 7 consolidated cases at bar are not primarily freedom of
speech cases. Also, 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. 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. 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. Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct,
not free speech, which is manifestly subject to state regulation.
Resolution by the SC on the Calling Out Power Doctrine
On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC 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. The SC ruled that GMA has validly declared PP 1017 for the Constitution 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. 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. And such criterion has
been met.
Resolution by the SC on the Take Care Doctrine
Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be
faithfully executed.) the president declared PP 1017. David et al averred that PP 1017 however
violated Sec 1, Art 6 of the Constitution for it arrogated legislative power to the President. Such

power is vested 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. The SC
noted that such provision is similar to the power that granted former President Marcos legislative
powers (as provided in PP 1081). The SC ruled that the assailed PP 1017 is unconstitutional
insofar as it grants GMA the authority to promulgate decrees. Legislative power is peculiarly
within the province of the Legislature. Sec 1, Article 6 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 GMA[s exercise of legislative power by issuing decrees. The president
can only take care of the carrying out of laws but cannot create or enact laws.
Resolution by the SC on the Take Over Power Doctrine
The president cannot validly order the taking over of private corporations or institutions such as
the Daily Tribune without any authority from Congress. On the other hand, the word emergency
contemplated in the constitution is not limited to natural calamities but rather it also includes
rebellion. The SC made a distinction; the president can declare the state of national emergency
but her exercise of emergency powers does not come automatically after it for such exercise
needs authority from Congress. The authority from Congress must be based on the following:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.
Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration
The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a
valid exercise of the calling out power of the president by the president.