G.R. No.

L-5279 October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner,

vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.

Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for
petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco
Carreon for respondents.

BENGZON, J.:

The petitioning colleges and universities request that Act No. 2706 as amended by Act No.
3075 and Commonwealth Act No. 180 be declared unconstitutional, because: A. They
deprive owners of schools and colleges as well as teachers and parents of liberty and
property without due process of law; B. They deprive parents of their natural rights and duty
to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary
of Education unlimited power and discretion to prescribe rules and standards constitute an
unlawful delegation of legislative power.

A printed memorandum explaining their position in extenso is attached to the record.

The Government's legal representative submitted a mimeographed memorandum

contending that, (1) the matter constitutes no justiciable controversy exhibiting unavoidable
necessity of deciding the constitutional questions; (2) petitioners are in estoppel to challenge
the validity of the said acts; and (3) the Acts are constitutionally valid.

Petitioners submitted a lengthy reply to the above arguments.

Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of
private schools and colleges obligatory for the Secretary of Public Instruction." Under its
provisions, the Department of Education has, for the past 37 years, supervised and regulated
all private schools in this country apparently without audible protest, nay, with the general
acquiescence of the general public and the parties concerned.

It should be understandable, then, that this Court should be doubly reluctant to consider
petitioner's demand for avoidance of the law aforesaid, specially where, as respondents
assert, petitioners suffered no wrongnor allege anyfrom the enforcement of the criticized
statute.

It must be evident to any one that the power to declare a legislative enactment void is
one which the judge, conscious of the fallability of the human judgment, will shrink
from exercising in any case where he can conscientiously and with due regard to
duty and official oath decline the responsibility. (Cooley Constitutional Limitations, 8th
Ed., Vol. I, p. 332.)
 When a law has been long treated as constitutional and important rights have
become dependent thereon, the Court may refuse to consider an attack on its
validity. (C. J. S. 16, p. 204.)

As a general rule, the constitutionality of a statute will be passed on only if, and to the
extent that, it is directly and necessarily involved in a justiciable controversy and is
essential to the protection of the rights of the parties concerned. (16 C. J. S., p. 207.)

In support of their first proposition petitioners contend that the right of a citizen to own and
operate a school is guaranteed by the Constitution, and any law requiring previous
governmental approval or permit before such person could exercise said right, amounts to
censorship of previous restraint, a practice abhorent to our system of law and government.
Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that
before a private school may be opened to the public it must first obtain a permit from the
Secretary of Education. The Solicitor General on the other hand points out that none of the
petitioners has cause to present this issue, because all of them have permits to operate and
are actually operating by virtue of their permits.1 And they do not assert that the respondent
Secretary of Education has threatened to revoke their permits. They have suffered no wrong
under the terms of lawand, naturally need no relief in the form they now seek to obtain.

It is an established principle that to entitle a private individual immediately in danger

of sustaining a direct injury as the result of that action and it is not sufficient that he
has merely a general to invoke the judicial power to determine the validity of
executive or legislative action he must show that he has sustained or is interest
common to all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)

Courts will not pass upon the constitutionality of a law upon the complaint of one who
fails to show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405;
Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp., 323 U. S. 316-
325.)

The power of courts to declare a law unconstitutional arises only when the interests
of litigant require the use of that judicial authority for their protection against actual
interference, a hypothetical threat being insufficient. (United Public
Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)

Bona fide suit.Judicial power is limited to the decision of actual cases and
controversies. The authority to pass on the validity of statutes is incidental to the
decision of such cases where conflicting claims under the Constitution and under a
legislative act assailed as contrary to the Constitution are raised. It is legitimate only
in the last resort, and as necessity in the determination of real, earnest, and vital
controversy between litigants. (Taada and Fernando, Constitution of the Philippines,
p. 1138.)

Mere apprehension that the Secretary of Education might under the law withdraw the permit
of one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex
rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)

And action, like this, is brought for a positive purpose, nay, to obtain actual and positive
relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate
mere academic questions to satisfy scholarly interest therein, however intellectually solid the
problem may be. This is specially true where the issues "reach constitutional dimensions, for
then there comes into play regard for the court's duty to avoid decision of constitutional
issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep.,
May 23, 1995, Law Ed., Vol. 99, p. 511.)

The above notwithstanding, in view of the several decisions of the United States Supreme
Court quoted by petitioners, apparently outlawing censorship of the kind objected to by them,
we have decided to look into the matter, lest they may allege we refuse to act even in the
face of clear violation of fundamental personal rights of liberty and property.

Petitioners complain that before opening a school the owner must secure a permit from the
Secretary of Education. Such requirement was not originally included in Act No. 2706. It was
introduced by Commonwealth Act No. 180 approved in 1936. Why?

In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of
Educational Survey to make a study and survey of education in the Philippines and of all
educational institutions, facilities and agencies thereof. A Board chairmaned by Dr. Paul
Munroe, Columbia University, assisted by a staff of carefully selected technical members
performed the task, made a five-month thorough and impartial examination of the local
educational system, and submitted a report with recommendations, printed as a book of 671
pages. The following paragraphs are taken from such report:

PRIVATE-ADVENTURE SCHOOLS

There is no law or regulation in the Philippine Islands today to prevent a person,

however disqualified by ignorance, greed, or even immoral character, from opening a
school to teach the young. It it true that in order to post over the door "Recognized by
the Government," a private adventure school must first be inspected by the proper
Government official, but a refusal to grant such recognition does not by any means
result in such a school ceasing to exist. As a matter of fact, there are more such
unrecognized private schools than of the recognized variety. How many, no one
knows, as the Division of Private Schools keeps records only of the recognized type.

Conclusion.An unprejudiced consideration of the fact presented under the caption

Private Adventure Schools leads but to one conclusion, viz.: the great majority of
them from primary grade to university are money-making devices for the profit of
those who organize and administer them. The people whose children and youth
attend them are not getting what they pay for. It is obvious that the system
constitutes a great evil. That it should be permitted to exist with almost no
supervision is indefensible. The suggestion has been made with the reference to the
private institutions of university grade that some board of control be organized under
legislative control to supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to bring about the
needed reforms.

Recommendations.The Commission recommends that legislation be enacted to

prohibit the opening of any school by an individual or organization without the
permission of the Secretary of Public Instruction. That before granting such
permission the Secretary assure himself that such school measures up to proper
standards in the following respects, and that the continued existence of the school be
dependent upon its continuing to conform to these conditions:
 (1) The location and construction of the buildings, the lighting and ventilation of the
rooms, the nature of the lavatories, closets, water supply, school furniture and
apparatus, and methods of cleaning shall be such as to insure hygienic conditions for
both pupils and teachers.

(2) The library and laboratory facilities shall be adequate to the needs of instruction in
the subjects taught.

(3) The classes shall not show an excessive number of pupils per teacher. The
Commission recommends 40 as a maximum.

(4) The teachers shall meet qualifications equal to those of teachers in the public
schools of the same grade.

xxx xxx xxx

In view of these findings and recommendations, can there be any doubt that the Government
in the exercise of its police power to correct "a great evil" could validly establish the "previous
permit" system objected to by petitioners? This is what differentiates our law from the other
statutes declared invalid in other jurisdictions. And if any doubt still exists, recourse may now
be had to the provision of our Constitution that "All educational institutions shall be under the
supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate
establishments or business occupations implies the power to require a permit or license. (53
C. J. S. 4.)

What goes for the "previous permit" naturally goes for the power to revoke such permit on
account of violation of rules or regulations of the Department.

II. This brings us to the petitioners' third proposition that the questioned statutes "conferring
on the Secretary of Education unlimited power and discretion to prescribe rules and
standards constitute an unlawful delegation of legislative power."

This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:

It shall be the duty of the Secretary of Public Instruction to maintain a general

standard of efficiency in all private schools and colleges of the Philippines so that the
same shall furnish adequate instruction to the public, in accordance with the class
and grade of instruction given in them, and for this purpose said Secretary or his duly
authorized representative shall have authority to advise, inspect, and regulate said
schools and colleges in order to determine the efficiency of instruction given in the
same,

"Nowhere in this Act" petitioners argue "can one find any description, either general or
specific, of what constitutes a 'general standard of efficiency.' Nowhere in this Act is there
any indication of any basis or condition to ascertain what is 'adequate instruction to the
public.' Nowhere in this Act is there any statement of conditions, acts, or factors, which the
Secretary of Education must take into account to determine the 'efficiency of instruction.'"

The attack on this score is also extended to section 6 which provides:

 The Department of Education shall from time to time prepare and publish in pamphlet
form the minimum standards required of primary, intermediate, and high schools, and
colleges granting the degrees of Bachelor of Arts, Bachelor of Science, or any other
academic degree. It shall also from time to time prepare and publish in pamphlet
form the minimum standards required of law, medical, dental, pharmaceutical,
engineering, agricultural and other medical or vocational schools or colleges giving
instruction of a technical, vocational or professional character.

Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the
Secretary of Education or his department. The Secretary of Education is given the power to
fix the standard. In plain language, the statute turns over to the Secretary of Education the
exclusive authority of the legislature to formulate standard. . . .."

It is quite clear the two sections empower and require the Secretary of Education to
prescribe rules fixing minimum standards of adequate and efficient instruction to be observed
by all such private schools and colleges as may be permitted to operate. The petitioners
contend that as the legislature has not fixed the standards, "the provision is extremely vague,
indefinite and uncertain"and for that reason constitutionality objectionable. The best
answer is that despite such alleged vagueness the Secretary of Education has fixed
standards to ensure adequate and efficient instruction, as shown by the memoranda fixing or
revising curricula, the school calendars, entrance and final examinations, admission and
accreditation of students etc.; and the system of private education has, in general, been
satisfactorily in operation for 37 years. Which only shows that the Legislature did and could,
validly rely upon the educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum requirements of adequate
instruction as the basis of government recognition of any private school.

At any rate, petitioners do not show how these standards have injured any of them or
interfered with their operation. Wherefore, no reason exists for them to assail the validity of
the power nor the exercise of the power by the Secretary of Education.

True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical
and capricious" and that such discretionary power has produced arrogant inspectors who
"bully heads and teachers of private schools." Nevertheless, their remedy is to challenge
those regulations specifically, and/or to ring those inspectors to book, in proper
administrative or judicial proceedingsnot to invalidate the law. For it needs no argument, to
show that abuse by the officials entrusted with the execution of a statute does not per
se demonstrate the unconstitutionality of such statute.

Anyway, we find the defendants' position to be sufficiently sustained by the decision

in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the
Director of Agriculture to "designate standards for the commercial grades of abaca, maguey
and sisal" against vigorous attacks on the ground of invalid delegation of legislative power.

Indeed "adequate and efficient instruction" should be considered sufficient, in the same way
as "public welfare" "necessary in the interest of law and order" "public interest" and "justice
and equity and substantial merits of the case" have been held sufficient as legislative
standards justifying delegation of authority to regulate. (See Taada and Fernando,
Constitution of the Philippines, p. 793, citing Philippine cases.)

On this phase of the litigation we conclude that there has been no undue delegation of
legislative power.
In this connection, and to support their position that the law and the Secretary of Education
have transcended the governmental power of supervision and regulation, the petitioners
appended a list of circulars and memoranda issued by the said Department. However they
failed to indicate which of such official documents was constitutionally objectionable for being
"capricious," or pain "nuisance"; and it is one of our decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately argued, the court will
not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)

We are told that such list will give an idea of how the statute has placed in the hands of the
Secretary of Education complete control of the various activities of private schools, and why
the statute should be struck down as unconstitutional. It is clear in our opinion that the
statute does not in express terms give the Secretary complete control. It gives him powers to
inspect private schools, to regulate their activities, to give them official permits to operate
under certain conditions, and to revoke such permits for cause. This does not amount
to complete control. If any of such Department circulars or memoranda issued by the
Secretary go beyond the bounds of regulation and seeks to establish complete control, it
would surely be invalid. Conceivably some of them are of this nature, but besides not having
before us the text of such circulars, the petitioners have omitted to specify. In any event with
the recent approval of Republic Act No. 1124 creating the National Board of Education,
opportunity for administrative correction of the supposed anomalies or encroachments is
amply afforded herein petitioners. A more expeditious and perhaps more technically
competent forum exists, wherein to discuss the necessity, convenience or relevancy of the
measures criticized by them. (See also Republic Act No. 176.)

If however the statutes in question actually give the Secretary control over private schools,
the question arises whether the power of supervision and regulation granted to the State by
section 5 Article XIV was meant to include control of private educational institutions. It is
enough to point out that local educators and writers think the Constitution provides for control
of Education by the State. (See Tolentino, Government of the Philippine Constitution, Vol. II,
p. 615; Benitez, Philippine Social Life and Progress, p. 335.)

The Constitution (it) "provides for state control of all educational institutions" even as it
enumerates certain fundamental objectives of all education to wit, the development of moral
character, personal discipline, civic conscience and vocational efficiency, and instruction in
the duties of citizenship. (Malcolm & Laurel, Philippine Constitutional Law, 1936.)

The Solicitor General cities many authorities to show that the power to regulate means
power to control, and quotes from the proceedings of the Constitutional Convention to prove
that State control of private education was intended by the organic law. It is significant to
note that the Constitution grants power to supervise and to regulate. Which may mean
greater power than mere regulation.

III. Another grievance of petitionersprobably the most significantis the assessment of 1

per cent levied on gross receipts of all private schools for additional Government expenses in
connection with their supervision and regulation. The statute is section 11-A of Act No. 2706
as amended by Republic Act No. 74 which reads as follows:

SEC. 11-A. The total annual expense of the Office of Private Education shall be met
by the regular amount appropriated in the annual Appropriation Act: Provided,
however, That for additional expenses in the supervision and regulation of private
schools, colleges and universities and in the purchase of textbook to be sold to
student of said schools, colleges and universities and President of the Philippines
 may authorize the Secretary of Instruction to levy an equitable assessment from each
private educational institution equivalent to one percent of the total amount accruing
from tuition and other fees: . . . and non-payment of the assessment herein provided
by any private school, college or university shall be sufficient cause for the
cancellation by the Secretary of Instruction of the permit for recognition granted to it.

Petitioners maintain that this is a tax on the exercise of a constitutional rightthe right to
open a school, the liberty to teach etc. They claim this is unconstitutional, in the same way
that taxes on the privilege of selling religious literature or of publishing a newspaperboth
constitutional privilegeshave been held, in the United States, to be invalid as taxes on the
exercise of a constitutional right.

The Solicitor General on the other hand argues that insofar as petitioners' action attempts to
restrain the further collection of the assessment, courts have no jurisdiction to restrain the
collection of taxes by injunction, and in so far as they seek to recover fees already paid the
suit, it is one against the State without its consent. Anyway he concludes, the action involving
"the legality of any tax impost or assessment" falls within the original jurisdiction of Courts of
First Instance.

There are good grounds in support of Government's position. If this levy of 1 per cent is truly
a mere feeand not a taxto finance the cost of the Department's duty and power to
regulate and supervise private schools, the exaction may be upheld; but such point involves
investigation and examination of relevant data, which should best be carried out in the lower
courts. If on the other hand it is a tax, petitioners' issue would still be within the original
jurisdiction of the Courts of First Instance.

The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its
section 1 provides:

The textbooks to be used in the private schools recognized or authorized by the

government shall be submitted to the Board (Board of Textbooks) which shall have
the power to prohibit the use of any of said textbooks which it may find to be against
the law or to offend the dignity and honor of the government and people of the
Philippines, or which it may find to be against the general policies of the government,
or which it may deem pedagogically unsuitable.

This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U.
S. cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon
publication of newspapers, or curtail the right of individuals to disseminate teachings critical
of government institutions or policies.

Herein lies another important issue submitted in the cause. The question is really whether
the law may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5)
to supervise and regulate private schools. If that power amounts to control of private schools,
as some think it is, maybe the law is valid. In this connection we do not share the belief that
section 5 has added new power to what the State inherently possesses by virtue of the
police power. An express power is necessarily more extensive than a mere implied power.
For instance, if there is conflict between an express individual right and the express power to
control private education it cannot off-hand be said that the latter must yield to the former
conflict of two express powers. But if the power to control education ismerely implied from
the police power, it is feasible to uphold the express individual right, as was probably the
situation in the two decisions brought to our attention, of Mississippi and Minnesota, states
where constitutional control of private schools is not expressly produced.

However, as herein previously noted, no justiciable controversy has been presented to us.
We are not informed that the Board on Textbooks has prohibited this or that text, or that the
petitioners refused or intend to refuse to submit some textbooks, and are in danger of losing
substantial privileges or rights for so refusing.

The average lawyer who reads the above quoted section of Republic Act 139 will fail to
perceive anything objectionable. Why should not the State prohibit the use of textbooks that
are illegal, or offensive to the Filipinos or adverse to governmental policies or educationally
improper? What's the power of regulation and supervision for? But those trained to the
investigation of constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel foresee with
obvious alarm. Much depends, however, upon the execution and implementation of the
statute. Not that constitutionality depends necessarily upon the law's effects. But if the Board
on Textbooks in its actuations strictly adheres to the letter of the section and wisely steers a
middle course between the Scylla of "dictatorship" and the Charybdis of "thought control", no
cause for complaint will arise and no occasion for judicial review will develop. Anyway, and
again, petitioners now have a more expeditious remedy thru an administrative appeal to the
National Board of Education created by Republic Act 1124.

Of course it is necessary to assure herein petitioners, that when and if, the dangers they
apprehend materialize and judicial intervention is suitably invoked, after all administrative
remedies are exhausted, the courts will not shrink from their duty to delimit constitutional
boundaries and protect individual liberties.

IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the
proper court, and at the proper time, such actions as may call for decision of the issue herein
presented by them, this petition for prohibition will be denied. So ordered.

Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.

G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.

G.R. No. 118627 March 7, 1995

JOHN R. OSMEA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.

PUNO, J.:

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of
Makati."1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie
Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba,
and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others
are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in relation
to Sections 7 and 450 of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three

consecutive term" limit for local elective officials, in violation of Section 8,
Article X and Section 7, Article VI of the Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special

law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by
Congress within three (3) years following the return of every
census;

(b) the increase in legislative district was not expressed in the

title of the bill; and

(c) the addition of another legislative district in Makati is not in

accord with Section 5 (3), Article VI of the Constitution for as
of the latest survey (1990 census), the population of Makati
stands at only 450,000.

G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the
same grounds as aforestated.

We find no merit in the petitions.

 I

Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati,
thus:

Sec. 2. The City of Makati. The Municipality of Makati shall be converted

into a highly urbanized city to be known as the City of Makati, hereinafter
referred to as the City, which shall comprise the present territory of the
Municipality of Makati in Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig River and beyond by the City
of Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay
and the Municipality of Taguig; and, on the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the

appropriate agency or forum of existing boundary disputes or cases involving
questions of territorial jurisdiction between the City of Makati and the
adjoining local government units. (Emphasis supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the
Local Government Code which require that the area of a local government unit should be
made by metes and bounds with technical descriptions.2

The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly conflicts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about
by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated
that the delineation of the land area of the proposed City of Makati will cause confusion as to
its boundaries. We note that said delineation did not change even by an inch the land area
previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or
multiply the established land area of Makati. In language that cannot be any clearer, section
2 stated that, the city's land area "shall comprise the present territory of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between
the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of
a becoming sense of respect to co-equal department of government, legislators felt that the
dispute should be left to the courts to decide. They did not want to foreclose the dispute by
making a legislative finding of fact which could decide the issue. This would have ensued if
they defined the land area of the proposed city by its exact metes and bounds, with technical
descriptions.3 We take judicial notice of the fact that Congress has also refrained from using
the metes and bounds description of land areas of other local government units with
unsettled boundary disputes.4
We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the
existing boundaries of the proposed City of Makati but as an act of fairness, made them
subject to the ultimate resolution by the courts. Considering these peculiar circumstances,
we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain
the submission of the Solicitor General in this regard, viz.:

Going now to Sections 7 and 450 of the Local Government Code, it is beyond
cavil that the requirement stated therein, viz.: "the territorial jurisdiction of
newly created or converted cities should be described by meted and bounds,
with technical descriptions" was made in order to provide a means by
which the area of said cities may be reasonably ascertained. In other words,
the requirement on metes and bounds was meant merely as tool in the
establishment of local government units. It is not an end in itself. Ergo, so
long as the territorial jurisdiction of a city may be reasonably ascertained, i.e.,
by referring to common boundaries with neighboring municipalities, as in this
case, then, it may be concluded that the legislative intent behind the law has
been sufficiently served.

Certainly, Congress did not intends that laws creating new cities must contain
therein detailed technical descriptions similar to those appearing in Torrens
titles, as petitioners seem to imply. To require such description in the law as a
condition sine qua non for its validity would be to defeat the very purpose
which the Local Government Code to seeks to serve. The manifest intent of
the Code is to empower local government units and to give them their rightful
due. It seeks to make local governments more responsive to the needs of
their constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a case of the master serving
the slave, instead of the other way around. This could not be the intendment
of the law.

Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts
will not follow the letter of the statute when to do so would depart from the
true intent of the legislature or would otherwise yield conclusions inconsistent
with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Taada
v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is
an active instrument of government, which, for purposes of interpretation,
means that laws have ends to achieve, and statutes should be so construed
as not to defeat but to carry out such ends and purposes (Bocolbo v.
Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case
at bar.

II

Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A.
No. 7854. Section 51 states:
 Sec. 51. Officials of the City of Makati. The represent elective officials of
the Municipality of Makati shall continue as the officials of the City of Makati
and shall exercise their powers and functions until such time that a new
election is held and the duly elected officials shall have already qualified and
assume their offices: Provided, The new city will acquire a new corporate
existence. The appointive officials and employees of the City shall likewise
continues exercising their functions and duties and they shall be
automatically absorbed by the city government of the City of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide:

Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a

term of three years which shall begin, unless otherwise provided by law, at
noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

Petitioners stress that under these provisions, elective local officials, including Members of
the House of Representative, have a term of three (3) years and are prohibited from serving
for more than three (3) consecutive terms. They argue that by providing that the new city
shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the terms previously served by
them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor,
respondent Jejomar Binay, who has already served for two (2) consecutive terms. They
further argue that should Mayor Binay decide to run and eventually win as city mayor in the
coming elections, he can still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term as municipal mayor would
not be counted. Thus, petitioners conclude that said section 51 has been conveniently
crafted to suit the political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be
raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question must be necessary
to the determination of the case itself.5

Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek re-
election for the same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen
to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano)
are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic
issue in a petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized

city, Makati shall thereafter have at least two (2) legislative districts that shall
initially correspond to the two (2) existing districts created under Section 3(a)
of Republic Act. No. 7166 as implemented by the Commission on Elections to
commence at the next national elections to be held after the effectivity of this
Act. Henceforth, barangays Magallanes, Dasmarias and Forbes shall be
with the first district, in lieu of Barangay Guadalupe-Viejo which shall form
part of the second district. (emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional for:
(1) reapportionment6cannot made by a special law, (2) the addition of a legislative district is
not expressed in the title of the bill7 and (3) Makati's population, as per the 1990 census,
stands at only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such
as in the charter of a new city. The Constitution9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by law.
As thus worded, the Constitution did not preclude Congress from increasing its membership
by passing a law, other than a general reapportionment of the law. This is its exactly what
was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's
legislative district. Moreover, to hold that reapportionment can only be made through a
general apportionment law, with a review of all the legislative districts allotted to each local
government unit nationwide, would create an inequitable situation where a new city or
province created by Congress will be denied legislative representation for an indeterminate
period of time. 10 The intolerable situations will deprive the people of a new city or province a
particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand (450,000). 13 Said
section provides, inter alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative. Even granting that the population
of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative
district may still be increased since it has met the minimum population requirement of two
hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to more than two hundred
fifty thousand (250,000) shall be entitled to at least one congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In the
same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal
construction of the "one title-one subject" rule so as not to impede legislation. To be sure,
with Constitution does not command that the title of a law should exactly mirror, fully index,
or completely catalogue all its details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and all the provisions are germane to
such general subject."

WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

[G.R. No. 152295. July 9, 2002]

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,

JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs.COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
DEPARTMENT OF BUDGET AND MANAGEMENT,
EXECUTIVE SECRETARY of the OFFICE OF THE
PRESIDENT, SENATOR FRANKLIN DRILON in his capacity
as Senate President and SENATOR AQUILINO PIMENTEL
in his capacity as Minority Leader of the Senate of the
Philippines, CONGRESSMAN JOSE DE VENECIA in his
capacity as Speaker, CONGRESSMAN AGUSTO L. SYJOCO
in his capacity as Chairman of the Committee on Suffrage
and Electoral Reforms, and CONGRESSMAN EMILIO C.
MACIAS II in his capacity as Chairman of the Committee on
Local Government of the House of Representatives, THE
PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA
SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS
AND REPRESENTATIVES, respondents.

DECISION
CARPIO, J.:
 The Case

Before us is a petition for certiorari, prohibition and mandamus with prayer for
a temporary restraining order or preliminary injunction. The petition seeks to
prevent the postponement of the Sangguniang Kabataan (SK for brevity)
elections originally scheduled last May 6, 2002. The petition also seeks to
prevent the reduction of the age requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and
class suit, on their own behalf and on behalf of other youths similarly situated.
Petitioners claim that they are in danger of being disqualified to vote and be
voted for in the SK elections should the SK elections on May 6, 2002 be
postponed to a later date. Under the Local Government Code of 1991 (R.A. No.
7160), membership in the SK is limited to youths at least 15 but not more than 21
years old.
Petitioners allege that public respondents connived, confederated and
conspired to postpone the May 6, 2002 SK elections and to lower the
membership age in the SK to at least 15 but less than 18 years of
age. Petitioners assail the alleged conspiracy because youths at least 18 but not
more than 21 years old will be summarily and unduly dismembered, unfairly
discriminated, unnecessarily disenfranchised, unjustly disassociated and
obnoxiously disqualified from the SK organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or
preliminary injunction -

a) To prevent, annul or declare unconstitutional any law, decree,

Comelec resolution/directive and other respondents issuances, orders
and actions and the like in postponing the May 6, 2002 SK elections.

b) To command the respondents to continue the May 6, 2002 SK

elections set by the present law and in accordance with Comelec
Resolutions No. 4713 and 4714 and to expedite the funding of the SK
elections.

c) In the alternative, if the SK elections will be postponed for whatever

reason, there must be a definite date for said elections, for example,
July 15, 2002, and the present SK membership, except those incumbent
SK officers who were elected on May 6, 1996, shall be allowed to run for
any SK elective position even if they are more than 21 years old.

d) To direct the incumbent SK officers who are presently representing

the SK in every sanggunian and the NYC to vacate their post after the
barangay elections. [2]
 The Facts

The SK is a youth organization originally established by Presidential Decree

No. 684 as the Kabataang Barangay (KB for brevity). The KB was composed of
all barangay residents who were less than 18 years old, without specifying the
minimum age. The KB was organized to provide its members with the opportunity
to express their views and opinions on issues of transcendental importance. [3]
The Local Government Code of 1991 renamed the KB to SK and limited SK
membership to those youths at least 15 but not more than 21 years of age. [4] The
SK remains as a youth organization in every barangay tasked to initiate
programs to enhance the social,political, economic, cultural, intellectual, moral,
spiritual, and physical development of the youth.[5] The SK in every barangay is
composed of a chairperson and seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every barangay is composed of all
citizens actually residing in the barangay for at least six months and who meet
the membership age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset
the SK elections to the first Monday of May of 1996 and every three years
thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the
SK elections under rules the Comelec shall promulgate. Accordingly, the
Comelec on December 4, 2001 issued Resolution Nos. 4713[6] and 4714[7] to
govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros
(Montesclaros for brevity) sent a letter[8] to the Comelec, demanding that the SK
elections be held as scheduled on May 6, 2002. Montesclaros also urged the
Comelec to respond to her letter within 10 days upon receipt of the letter,
otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity),
then Comelec Chairman, wrote identical letters to the Speaker of the House [9] and
the Senate President[10] about the status of pending bills on the SK and Barangay
elections. In his letters, the Comelec Chairman intimated that it was operationally
very difficult to hold both elections simultaneously in May 2002. Instead, the
Comelec Chairman expressed support for the bill of Senator Franklin Drilon that
proposed to hold the Barangay elections in May 2002 and postpone the SK
elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of
Montesclaros. Subsequently, petitioners received a copy of Comelec En
Banc Resolution No. 4763[11] dated February 5, 2002 recommending to Congress
the postponement of the SK elections to November 2002 but holding the
Barangay elections in May 2002 as scheduled.[12]
On March 6, 2002, the Senate and the House of Representatives passed
their respective bills postponing the SK elections. On March 11, 2002, the
Bicameral Conference Committee (Bicameral Committee for brevity) of the
Senate and the House came out with a Report[13]recommending approval of the
reconciled bill consolidating Senate Bill No. 2050[14] and House Bill No.
4456.[15] The Bicameral Committees consolidated bill reset the SK and Barangay
elections to July 15, 2002 and lowered the membership age in the SK to at least
15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees
consolidated bill and on March 13, 2002, the House of Representatives approved
the same. The President signed the approved bill into law on March 19, 2002.

The Issues

Petitioners[16] raise the following grounds in support of their petition:

I.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK
MEMBERS WHO ARE 18 BUT NOT LESS (SIC) THAN 21 YEARS[17]

OLD COMPOSED OF ABOUT 7 MILLION YOUTH.

III.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK
ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER
TO IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN
SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR
THE PURPOSE.
 IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT

ON THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION
(SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN
VIOLATION OF LAW AND CONSTITUTION. [18]

The Courts Ruling

The petition is bereft of merit.

At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were
not held as scheduled.
2. Congress enacted RA No. 9164[19] which provides that voters and candidates
for the SK elections must be at least 15 but less than 18 years of age on the
day of the election.[20] RA No. 9164 also provides that there shall be a
synchronized SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for
the conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of
the May 6, 2002 SK elections disenfranchises them, preventing them from voting
and being voted for in the SK elections. Petitioners theory is that if the SK
elections were postponed to a date later than May 6, 2002, the postponement
would disqualify from SK membership youths who will turn 21 years old between
May 6, 2002 and the date of the new SK elections. Petitioners claim that a
reduction in the SK membership age to 15 but less than 18 years of age from the
then membership age of 15 but not more than 21 years of age would disqualify
about seven million youths. The public respondents failure to hold the elections
on May 6, 2002 would prejudice petitioners and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to
hold the SK elections on May 6, 2002 and should it be postponed, the SK
elections should be held not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions and orders that would
lower the membership age in the SK; and (3) compel public respondents to allow
petitioners and those who have turned more than 21 years old on May 6, 2002 to
participate in any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases
only if all the following requisites are complied with, namely: (1) the existence of
an actual and appropriate case or controversy; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4) the constitutional question is
the lis mota of the case.[21]
In the instant case, there is no actual controversy requiring the exercise of
the power of judicial review. While seeking to prevent a postponement of the May
6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the
SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the
SK elections to July 15, 2002, a date acceptable to petitioners. With respect to
the date of the SK elections, there is therefore no actual controversy requiring
judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a
law. A proposed bill creates no right and imposes no duty legally enforceable by
the Court. A proposed bill, having no legal effect, violates no constitutional right
or duty.The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory
opinion on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuo.[22] The second paragraph of Section 1, Article VIII of the
Constitution states

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. (Emphasis
supplied)

Thus, there can be no justiciable controversy involving the constitutionality of a

proposed bill. The Court can exercise its power of judicial review only after a law
is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to its
internal rules. Thus, the following acts of Congress in the exercise of its
legislative powers are not subject to judicial restraint: the filing of bills by
members of Congress, the approval of bills by each chamber of Congress, the
reconciliation by the Bicameral Committee of approved bills, and the eventual
approval into law of the reconciled bills by each chamber of Congress. Absent a
clear violation of specific constitutional limitations or of constitutional rights of
private parties, the Court cannot exercise its power of judicial review over the
internal processes or procedures of Congress.[23]
The Court has also no power to dictate to Congress the object or subject of
bills that Congress should enact into law. The judicial power to review the
constitutionality of laws does not include the power to prescribe to Congress what
laws to enact. The Court has no power to compel Congress by mandamus to
enact a law allowing petitioners, regardless of their age, to vote and be voted for
in the July 15, 2002 SK elections. To do so would destroy the delicate system of
checks and balances finely crafted by the Constitution for the three co-equal,
coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD
No. 684, the original charter of the SK, which fixed the maximum age for
membership in the SK to youths less than 18 years old. Petitioners do not have a
vested right to the permanence of the age requirement under Section 424 of the
Local Government Code of 1991. Every law passed by Congress is always
subject to amendment or repeal by Congress. The Court cannot restrain
Congress from amending or repealing laws, for the power to make laws includes
the power to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote
or be voted for in an election that is limited under RA No. 9164 to youths at least
15 but less than 18 years old. A law is needed to allow all those who have turned
more than 21 years old on or after May 6, 2002 to participate in the July 15, 2002
SK elections. Youths from 18 to 21 years old as of May 6, 2002 are also no
longer SK members, and cannot participate in the July 15, 2002 SK
elections. Congress will have to decide whether to enact an amendatory
law.Petitioners remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this
suit. A party must show that he has been, or is about to be denied some personal
right or privilege to which he is lawfully entitled.[25] A party must also show that he
has a real interest in the suit. By real interest is meant a present substantial
interest, as distinguished from a mere expectancy or future, contingent,
subordinate, or inconsequential interest.[26]
In the instant case, petitioners seek to enforce a right originally conferred by
law on those who were at least 15 but not more than 21 years old. Now, with the
passage of RA No. 9164, this right is limited to those who on the date of the SK
elections are at least 15 but less than 18 years old. The new law restricts
membership in the SK to this specific age group. Not falling within this
classification, petitioners have ceased to be members of the SK and are no
longer qualified to participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial interest in the SK elections.
This petition does not raise any constitutional issue. At the time petitioners
filed this petition, RA No. 9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted into law. After the passage
of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that
could be unconstitutional. To grant petitioners prayer to be allowed to vote and
be voted for in the July 15, 2002 SK elections necessitates assailing the
constitutionality of RA No. 9164. This, petitioners have not done. The Court will
not strike down a law unless its constitutionality is properly raised in an
appropriate action and adequately argued.[27]
 The only semblance of a constitutional issue, albeit erroneous, that
petitioners raise is their claim that SK membership is a property right within the
meaning of the Constitution.[28] Since certain public offices are reserved for SK
officers, petitioners also claim a constitutionally protected opportunity to occupy
these public offices. In petitioners own words, they and others similarly situated
stand to lose their opportunity to work in the government positions reserved for
SK members or officers.[29] Under the Local Government Code of 1991, the
president of the federation of SK organizations in a municipality, city or province
is an ex-officio member of the municipal council, city council or provincial board,
respectively.[30] The chairperson of the SK in the barangay is an ex-officio member
of the Sangguniang Barangay.[31] The president of the national federation of SK
organizations is an ex-officio member of the National Youth Commission, with
rank of a Department Assistant Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK
membership. One who is no longer qualified because of an amendment in the
law cannot complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can contest, based on a
statutory right, any act disqualifying them from SK membership or from voting in
the SK elections. SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law. Congress may
amend at any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a
[P]ublic office is a public trust.[33] No one has a vested right to any public office,
much less a vested right to an expectancy of holding a public office. In Cornejo
v. Gabriel,[34] decided in 1920, the Court already ruled:

Again, for this petition to come under the due process of law prohibition,
it would be necessary to consider an office a property. It is, however,
well settled x x x that a public office is not property within the
sense of the constitutional guaranties of due process of law, but is
a public trust or agency. x x x The basic idea of the government x x x is
that of a popular representative government, the officers being mere
agents and not rulers of the people, one where no one man or set of
men has a proprietary or contractual right to an office, but where every
officer accepts office pursuant to the provisions of the law and holds the
office as a trust for the people he represents. (Emphasis supplied)

Petitioners, who apparently desire to hold public office, should realize from
the very start that no one has a proprietary right to public office. While the law
makes an SK officer an ex-officio member of a local government legislative
council, the law does not confer on petitioners a proprietary right or even a
proprietary expectancy to sit in local legislative councils. The constitutional
principle of a public office as a public trust precludes any proprietary claim to
public office. Even the State policy directing equal access to opportunities for
public service[35] cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths involvement in
public affairs,[36] this policy refers to those who belong to the class of people
defined as the youth. Congress has the power to define who are the youth
qualified to join the SK, which itself is a creation of Congress. Those who do not
qualify because they are past the age group defined as the youth cannot insist on
being part of the youth. In government service, once an employee reaches
mandatory retirement age, he cannot invoke any property right to cling to his
office. In the same manner, since petitioners are now past the maximum age for
membership in the SK, they cannot invoke any property right to cling to their SK
membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes
the qualifications of candidates and voters for the SK elections. This law also
fixes the date of the SK elections.Petitioners are not even assailing the
constitutionality of RA No. 9164. RA No. 9164 enjoys the presumption of
constitutionality and will apply to the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave
abuse of discretion in recommending to Congress the postponement of the SK
elections. The very evidence relied upon by petitioners contradict their allegation
of illegality. The evidence consist of the following: (1) Comelec en
banc Resolution No. 4763 dated February 5, 2002 that recommended the
postponement of the SK elections to 2003; (2) the letter of then Comelec
Chairman Benipayo addressed to the Speaker of the House of Representatives
and the President of the Senate; and (3) the Conference Committee Report
consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall[37] and to recommend to Congress effective measures to
minimize election spending.[38] The Comelecs acts enjoy the presumption of
regularity in the performance of official duties.[39] These acts cannot constitute
proof, as claimed by petitioners, that there exists a connivance and conspiracy
(among) respondents in contravention of the present law. As the Court held
in Pangkat Laguna v. Comelec,[40] the Comelec, as the government agency
tasked with the enforcement and administration of elections laws, is entitled to
the presumption of regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of
elections. Petitioners failed to prove that the Comelec committed grave abuse of
discretion in recommending to Congress the postponement of the May 6, 2002
SK elections. The evidence cited by petitioners even establish that the Comelec
has demonstrated an earnest effort to address the practical problems in holding
the SK elections on May 6, 2002. The presumption remains that the decision of
the Comelec to recommend to Congress the postponement of the elections was
made in good faith in the regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of
judgment that is patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law. [41] Public respondents having
acted strictly pursuant to their constitutional powers and duties, we find no grave
abuse of discretion in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow
the incumbent SK officers to perpetuate themselves in power, depriving other
youths of the opportunity to serve in elective SK positions. This argument
deserves scant consideration. While RA No. 9164 contains a hold-over provision,
incumbent SK officials can remain in office only until their successors have been
elected or qualified. On July 15, 2002, when the SK elections are held, the hold-
over period expires and all incumbent SK officials automatically cease to hold
their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining
this suit. This petition presents no actual justiciable controversy. Petitioners do
not cite any provision of law that is alleged to be unconstitutional. Lastly, we find
no grave abuse of discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-
Martinez, and Corona, JJ., concur.

[G. R. No. 140835. August 14, 2000]

RAMON A. GONZALES, petitioner, vs. HON. ANDRES R.

NARVASA, as Chairman, PREPARATORY COMMISSION
ON CONSTITUTIONAL REFORMS; HON. RONALDO B.
ZAMORA, as Executive Secretary; COMMISSION ON
AUDIT; ROBERTO AVENTAJADO, as Presidential
Consultant on Council of Economic Advisers/Economic
Affairs; ANGELITO C. BANAYO, as Presidential Adviser
for/on Political Affairs; VERONICA IGNACIO-JONES, as
 Presidential Assistant/ Appointment Secretary (In charge of
appointments), respondents.

DECISION
GONZAGA-REYES, J.:

In this petition for prohibition and mandamus filed on December 9, 1999,

petitioner Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails
the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of presidential consultants,
advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the
presidential consultants, advisers and assistants from acting as such, and to
enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and
recommendations. In addition, petitioner seeks to enjoin the Commission on
Audit from passing in audit expenditures for the PCCR and the presidential
consultants, advisers and assistants. Finally, petitioner prays for an order
compelling respondent Zamora to furnish petitioner with information on certain
matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his
capacity as Chairman of the PCCR, filed his Comment to the Petition. The rest of
the respondents, who are being represented in this case by the Solicitor General,
filed their Comment with this Court on March 7, 2000. Petitioner then filed a
Consolidated Reply on April 24, 2000, whereupon this case was considered
submitted for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was created
by President Estrada on November 26, 1998 by virtue of Executive Order No. 43
(E.O. No. 43) in order to study and recommend proposed amendments and/or
revisions to the 1987 Constitution, and the manner of implementing the
same.[1] Petitioner disputes the constitutionality of the PCCR on two
grounds. First, he contends that it is a public office which only the legislature can
create by way of a law.[2] Secondly, petitioner asserts that by creating such a
body the President is intervening in a process from which he is totally excluded
by the Constitution the amendment of the fundamental charter.[3]
It is alleged by respondents that, with respect to the PCCR, this case has
become moot and academic. We agree.
An action is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or
dead.[4] Under E.O. No. 43, the PCCR was instructed to complete its task on or
before June 30, 1999.[5] However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the time frame for the
completion of the commissions work, viz
SECTION 6. Section 8 is hereby amended to read as follows:

Time Frame. The Commission shall commence its work on 01

January 1999 and complete the same on or before 31 December
1999.The Commission shall submit its report and recommendations
to the President within fifteen (15) working days from 31 December
1999.

The PCCR submitted its recommendations to the President on December 20,

1999 and was dissolved by the President on the same day.It had likewise spent
the funds allotted to it.[6] Thus, the PCCR has ceased to exist, having lost
its raison detre. Subsequent events have overtaken the petition and the Court
has nothing left to resolve.
The staleness of the issue before us is made more manifest by the
impossibility of granting the relief prayed for by petitioner.Basically, petitioner
asks this Court to enjoin the PCCR from acting as such. [7] Clearly, prohibition is
an inappropriate remedy since the body sought to be enjoined no longer exists. It
is well established that prohibition is a preventive remedy and does not lie to
restrain an act that is already fait accompli.[8] At this point, any ruling regarding
the PCCR would simply be in the nature of an advisory opinion, which is
definitely beyond the permissible scope of judicial power.
In addition to the mootness of the issue, petitioners lack of standing
constitutes another obstacle to the successful invocation of judicial power insofar
as the PCCR is concerned.
The question in standing is whether a party has alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. [9] In assailing the
constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen
and taxpayer.[10] A citizen acquires standing only if he can establish that he has
suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.[11] In Kilosbayan,
Incorporated v. Morato,[12] we denied standing to petitioners who were assailing a
lease agreement between the Philippine Charity Sweepstakes Office and the
Philippine Gaming Management Corporation, stating that,

in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716,

Sept. 22, 1987, standing was denied to a petitioner who sought to
declare a form of lottery known as Instant Sweepstakes invalid because,
as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner
claim that his rights and privileges as a lawyer or citizen have been
directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the constitutionality of
a statute must be direct and personal. He must be able to show, not
only that the law is invalid, but also that he has sustained or in
immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to
be denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason of
the statute complained of.

We apprehend no difference between the petitioner in Valmonte and the

present petitioners. Petitioners do not in fact show what particularized
interest they have for bringing this suit. It does not detract from the high
regard for petitioners as civic leaders to say that their interest falls short
of that required to maintain an action under Rule 3, d 2.

Coming now to the instant case, petitioner has not shown that he has
sustained or is in danger of sustaining any personal injury attributable to the
creation of the PCCR. If at all, it is only Congress, not petitioner, which can claim
any injury in this case since, according to petitioner, the President has
encroached upon the legislatures powers to create a public office and to propose
amendments to the Charter by forming the PCCR. Petitioner has sustained no
direct, or even any indirect, injury. Neither does he claim that his rights or
privileges have been or are in danger of being violated, nor that he shall be
subjected to any penalties or burdens as a result of the PCCRs activities. Clearly,
petitioner has failed to establish his locus standi so as to enable him to seek
judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional issue
when it is established that public funds have been disbursed in alleged
contravention of the law or the Constitution.[13], Thus payers action is properly
brought only when there is an exercise by Congress of its taxing or spending
power.[14] This was our ruling in a recent case wherein petitioners
Telecommunications and Broadcast Attorneys of the Philippines (TELEBAP) and
GMA Network, Inc. questioned the validity of section 92 of B.P. No. 881
(otherwise knows as the Omnibus Election Code) requiring radio and television
stations to give free air time to the Commission on Elections during the campaign
period.[15] The Court held that petitioner TELEBAP did not have any interest as a
taxpayer since the assailed law did not involve the taxing or spending power of
Congress.[16]
 Many other rulings have premised the grant or denial of standing to
taxpayers upon whether or not the case involved a disbursement of public funds
by the legislature. In Sanidad v. Commission on Elections,[17] the petitioners
therein were allowed to bring a taxpayers suit to question several presidential
decrees promulgated by then President Marcos in his legislative capacity calling
for a national referendum, with the Court explaining that

...[i]t is now an ancient rule that the valid source of a statute Presidential
Decrees are of such nature may be contested by one who will sustain a
direct injury as a result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined,
upon the theory that the expenditure of public funds by an officer of the
State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential Decree No.
991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its
provisions. The interest of the aforenamed petitioners as taxpayers in
the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees
appropriating said funds.

In still another case, the Court held that petitioners the Philippine Constitution
Association, Inc., a non-profit civic organization - had standing as taxpayers to
question the constitutionality of Republic Act No. 3836 insofar as it provides for
retirement gratuity and commutation of vacation and sick leaves to Senators and
Representatives and to the elective officials of both houses of Congress. [18]And
in Pascual v. Secretary of Public Works,[19] the Court allowed petitioner to
maintain a taxpayers suit assailing the constitutional soundness of Republic Act
No. 920 appropriating P85,000 for the construction, repair and improvement of
feeder roads within private property. All these cases involved the disbursement of
public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v.
Laron,[20] the Court declared that the trial court was wrong in allowing respondent
Ravanzo to bring an action for injunction in his capacity as a taxpayer in order to
question the legality of the contract of lease covering the public market entered
into between the City of Dagupan and petitioner. The Court declared that
Ravanzo did not possess the requisite standing to bring such taxpayers suit since
[o]n its face, and there is no evidence to the contrary, the lease contract entered
into between petitioner and the City shows that no public funds have been or will
be used in the construction of the market building.
Coming now to the instant case, it is readily apparent that there is no
exercise by Congress of its taxing or spending power. The PCCR was created by
the President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under
section 7 of E.O. No. 43, the amount of P3 million is appropriated for its
operational expenses to be sourced from the funds of the Office of the President.
The relevant provision states -

Appropriations. The initial amount of Three Million Pesos

(P3,000,000.00) is hereby appropriated for the operational expenses
of the Commission to be sourced from funds of the Office of the
President, subject to the usual accounting and auditing rules and
regulations. Additional amounts shall be released to the Commission
upon submission of requirements for expenditures.

The appropriations for the PCCR were authorized by the President, not by
Congress. In fact, there was no an appropriation at all. In a strict
sense, appropriation has been defined as nothing more than the legislative
authorization prescribed by the Constitution that money may be paid out of the
Treasury, while appropriation made by law refers to the act of the legislature
setting apart or assigning to a particular use a certain sum to be used in the
payment of debt or dues from the State to its creditors. [21] The funds used for the
PCCR were taken from funds intended for the Office of the President, in the
exercise of the Chief Executives power to transfer funds pursuant to section 25
(5) of article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the power to
decide whether or not it will entertain a taxpayers suit. [22]In the case at bar, there
being no exercise by Congress of its taxing or spending power, petitioner cannot
be allowed to question the creation of the PCCR in his capacity as a taxpayer,
but rather, he must establish that he has a personal and substantial interest in
the case and that he has sustained or will sustain direct injury as a result of its
enforcement.[23] In other words, petitioner must show that he is a real party in
interest - that he will stand to be benefited or injured by the judgment or that he
will be entitled to the avails of the suit.[24]Nowhere in his pleadings does petitioner
presume to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants.
Petitioner alleges that in 1995 and 1996, the President created seventy (70)
positions in the Office of the President and appointed to said positions twenty
(20) presidential consultants, twenty-two (22) presidential advisers, and twenty-
eight (28) presidential assistants.[25] Petitioner asserts that, as in the case of the
PCCR, the President does not have the power to create these positions. [26]
Consistent with the abovementioned discussion on standing, petitioner does
not have the personality to raise this issue before the Court. First of all, he has
not proven that he has sustained or is in danger of sustaining any injury as a
result of the appointment of such presidential advisers. Secondly, petitioner has
not alleged the necessary facts so as to enable the Court to determine if he
possesses a taxpayers interest in this particular issue. Unlike the PCCR which
was created by virtue of an executive order, petitioner does not allege by what
official act, whether it be by means of an executive order, administrative order,
memorandum order, or otherwise, the President attempted to create the positions
of presidential advisers, consultants and assistants. Thus, it is unclear what act of
the President petitioner is assailing. In support of his allegation, petitioner merely
annexed a copy of the Philippine Government Directory (Annex C) listing the
names and positions of such presidential consultants, advisers and assistants to
his petition. However, appointment is obviously not synonymous with creation. It
would be improvident for this Court to entertain this issue given the insufficient
nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive
Secretary Ronaldo B. Zamora to answer his letter (Annex D) dated October 4,
1999 requesting for the names of executive officials holding multiple positions in
government, copies of their appointments, and a list of the recipients of luxury
vehicles seized by the Bureau of Customs and turned over to Malacanang. [27]
The right to information is enshrined in Section 7 of the Bill of Rights which
provides that

The right of the people to information on matters of public concern shall

be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided
by law.

Under both the 1973[28] and 1987 Constitution, this is a self-executory

provision which can be invoked by any citizen before the courts. This was our
ruling in Legaspi v. Civil Service Commission,[29] wherein the Court classified the
right to information as a public right and when a [m]andamus proceeding involves
the assertion of a public right, the requirement of personal interest is satisfied by
the mere fact that the petitioner is a citizen, and therefore, part of the general
public which possesses the right. However, Congress may provide for
reasonable conditions upon the access to information. Such limitations were
embodied in Republic Act No. 6713, otherwise knows as the Code of Conduct
and Ethical Standards for Public Officials and Employees, which took effect on
March 25, 1989. This law provides that, in the performance of their duties, all
public officials and employees are obliged to respond to letters sent by the public
within fifteen (15) working days from receipt thereof and to ensure the
accessibility of all public documents for inspection by the public within reasonable
working hours, subject to the reasonable claims of confidentiality.[30]
Elaborating on the significance of the right to information, the Court said
in Baldoza v. Dimaano[31] that [t]he incorporation of this right in the Constitution is
a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nations
problems, nor a meaningful democratic decisionmaking if they are denied access
to information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. The information to which the
public is entitled to are those concerning matters of public concern, a term which
embrace[s] a broad spectrum of subjects which the public may want to know,
either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for
the courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.[32]
Thus, we agree with petitioner that respondent Zamora, in his official
capacity as Executive Secretary, has a constitutional and statutory duty to
answer petitioners letter dealing with matters which are unquestionably of public
concern that is, appointments made to public offices and the utilization of public
property. With regard to petitioners request for copies of the appointment papers
of certain officials, respondent Zamora is obliged to allow the inspection and
copying of the same subject to the reasonable limitations required for the orderly
conduct of official business.[33]
WHEREFORE, the petition is dismissed, with the exception that respondent
Zamora is ordered to furnish petitioner with the information requested.
SO ORDERED.

[G.R. No. 108399. July 31, 1997]

RAFAEL M. ALUNAN III, in his capacity as Secretary of the

Department of Interior and Local Government (DILG), the
BOARD OF ELECTION SUPERVISORS composed of Atty.
RUBEN M. RAMIREZ, Atty. RAFAELITO GARAYBLAS, and
Atty. ENRIQUE C. ROA, GUILLERMINA RUSTIA, in her
capacity as Director of the Barangay Bureau, City
Treasurer Atty. ANTONIO ACEBEDO, Budget Officer
EUFEMIA DOMINGUEZ, all of the City Government of
Manila, petitioners, vs. ROBERT MIRASOL, NORMAN T.
SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO,
MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES
ASENCIO, FERDINAND ROXAS, MA. ALBERTINA
 RICAFORT,and BALAIS M. LOURICH, and the HONORABLE
WILFREDO D. REYES,Presiding Judge of the Regional Trial
Court, Branch 36, Metro Manila, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision dated

January 19, 1993 of the Regional Trial Court of Manila (Branch
36), nullifying an order of the Department of Interior and Local
[1]

Government (DILG), which in effect cancelled the general elections for

the Sangguniang Kabataan (SK) slated on December 4, 1992 in the City
of Manila, on the ground that the elections previously held on May 26,
1990 served the purpose of the first elections for the SK under the Local
Government Code of 1991 (R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to be
composed of a chairman, seven (7) members, a secretary, and a
treasurer. Section 532(a) provides that the first elections for the SK shall
be held thirty (30) days after the next local elections. The Code took
effect on January 1, 1992.
The first local elections under the Code were held on May 11, 1992.
Accordingly, on August 27, 1992, the Commission on Elections issued
Resolution No. 2499, providing guidelines for the holding of the general
elections for the SK on September 30, 1992. The guidelines placed the
SK elections under the direct control and supervision of the DILG, with
the technical assistance of the COMELEC. After two postponements,
[2]

the elections were finally scheduled on December 4, 1992.

Accordingly, registration in the six districts of Manila was
conducted. A total of 152,363 youngsters, aged 15 to 21 years old,
registered, 15,749 of them filing certificates of candidacies. The City
Council passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then Secretary
Rafael M. Alunan III, issued a letter-resolution exempting the City of
Manila from holding elections for the SK on the ground that the elections
previously held on May 26, 1990 were to be considered the first under
the newly-enacted Local Government Code. The DILG acted on a letter
of Joshue R. Santiago, acting president of the KB City Federation of
Manila and a member of City Council of Manila, which called attention to
the fact that in the City of Manila elections for the Kabataang Barangay
(the precursor of the Sangguniang Kabataan) had previously been held
on May 26, 1990. In its resolution, the DILG stated:

[A] close examination of . . . RA 7160 would readily reveal the intention of the
legislature to exempt from the forthcoming Sangguniang Kabataan elections
those kabataang barangay chapters which may have conducted their elections
within the period of January 1, 1988 and January 1, 1992 under BP
337. Manifestly the term of office of those elected KB officials have been
correspondingly extended to coincide with the term of office of those who may
be elected under RA 7160.

On November 27, 1992 private respondents, claiming to represent

the 24,000 members of the Katipunan ng Kabataan, filed a petition
for certiorari and mandamus in the RTC of Manila to set aside the
resolution of the DILG. They argued that petitioner Secretary of Interior
and Local Government had no power to amend the resolutions of the
COMELEC calling for general elections for SKs and that the DILG
resolution in question denied them the equal protection of the laws.
On November 27, 1992, the trial court, through Executive Judge,
now COMELEC Chairman, Bernardo P. Pardo, issued an injunction,
ordering petitioners to desist from implementing the order of the
respondent Secretary dated September 18, 1992, . . . until further orders
of the Court. On the same day, he ordered petitioners to perform the
specified pre-election activities in order to implement Resolution No.
2499 dated August 27, 1992 of the Commission on Elections providing
for the holding of a general election of the Sangguniang Kabataan on
December 4, 1992 simultaneously in every barangay throughout the
country.
The case was subsequently reraffled to Branch 36 of the same
court. On January 19, 1993, the new judge, Hon. Wilfredo D. Reyes,
rendered a decision, holding that (1) the DILG had no power to exempt
the City of Manila from holding SK elections on December 4, 1992
because under Art. IX, C, 2(1) of the Constitution the power to enforce
and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall is vested solely in
the COMELEC; (2) the COMELEC had already in effect determined that
there had been no previous elections for KB by calling for general
elections for SK officers in every barangay without exception; and (3)
the exemption of the City of Manila was violative of the equal protection
clause of the Constitution because, according to the DILGs records, in
5,000 barangays KB elections were held between January 1, 1988 and
January 1, 1992 but only in the City of Manila, where there were 897
barangays, was there no elections held on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the City
of Manila, having already conducted elections for the KB on May 26,
1990, was exempted from holding elections on December 4, 1992. In
support of their contention, they cite 532(d) of the Local Government
Code of 1991, which provides that:

All seats reserved for the pederasyon ng mga sangguniang kabataan in the
different sanggunians shall be deemed vacant until such time that the
sangguniang kabataan chairmen shall have been elected and the respective
pederasyon presidents have been selected: Provided, That, elections for the
kabataang barangay conducted under Batas Pambansa Blg. 337 at any time
between January 1, 1988 and January 1, 1992 shall be considered as the first
elections provided for in this Code. The term of office of the kabataang
barangay officials elected within the said period shall be extended
correspondingly to coincide with the term of office of those elected under this
Code. (emphasis added)

They maintain that the Secretary of the DILG had authority to determine
whether the City of Manila came within the exception clause of 532(d)
so as to be exempt from holding the elections on December 4, 1992.
The preliminary question is whether the holding of the second
elections on May 13, 1996 rendered this case moot and
[3]

academic.There are two questions raised in this case. The first is

whether the Secretary of Interior and Local Government can exempt a
local government unit from holding elections for SK officers on
December 4, 1992 and the second is whether the COMELEC can
provide that the Department of Interior and Local Government shall
have direct control and supervision over the election of sangguniang
kabataan with the technical assistance by the Commission on Elections.
We hold that this case is not moot and that it is in fact necessary to
decide the issues raised by the parties. For one thing, doubt may be
cast on the validity of the acts of those elected in the May 26, 1990 KB
elections in Manila because this Court enjoined the enforcement of the
decision of the trial court and these officers continued in office until May
13, 1996. For another, this case comes within the rule that courts will
decide a question otherwise moot and academic if it is capable of
repetition, yet evading review. For the question whether the COMELEC
[4]

can validly vest in the DILG the control and supervision of SK elections
is likely to arise in connection with every SK election and yet the
question may not be decided before the date of such elections.
In the Southern Pacific Terminal case, where the rule was first
articulated, appellants were ordered by the Interstate Commerce
Commission to cease and desist from granting a shipper what the ICC
perceived to be preferences and advantages with respect to wharfage
charges. The cease and desist order was for a period of about two
years, from September 1, 1908 (subsequently extended to November
15), but the U.S. Supreme Court had not been able to hand down its
decision by the time the cease and desist order expired.The case was
decided only on February 20, 1911, more than two years after the order
had expired. Hence, it was contended that the case had thereby
become moot and the appeal should be dismissed. In rejecting this
contention, the Court held:

The question involved in the orders of the Interstate Commerce

Commission are usually continuing (as are manifestly those in the case at
bar), and these considerations ought not to be, as they might be, defeated,
by short-term orders, capable of repetition, yet evading review, and at one
time the government, and at another time the carriers, have their rights
determined by the Commission without a chance of redress. [5]

In Roe v. Wade, petitioner, a pregnant woman, brought suit in 1970

[6]

challenging anti-abortion statutes of Texas and Georgia on the ground

that she had a constitutional right to terminate her pregnancy at least
within the first trimester. The case was not decided until 1973 when she
was no longer pregnant. But the U.S. Supreme Court refused to dismiss
the case as moot. It was explained: [W]hen, as here, pregnancy is a
significant fact in the litigation, the normal 266-day human gestation
period is so short that the pregnancy will come to term before the usual
appellate process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive.Our laws should not be that
rigid. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be capable of repetition, yet evading
review.[7]

We thus reach the merits of the questions raised in this case. The
first question is whether then DILG Secretary Rafael M. Alunan III had
authority to determine whether under 532(d) of the Local Government
Code, the City of Manila was required to hold its first elections for
SK. As already stated, petitioners sustain the affirmative side of the
proposition. On the other hand, respondents argue that this is a power
which Art.IX,C, 2(1) of the Constitution vests in the
COMELEC. Respondents further argue that, by mandating that
elections for the SK be held on December 4, 1992 in every barangay,
the COMELEC in effect determined that there had been no elections for
the KB previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by 4 of Resolution No. 2499, the COMELEC
placed the SK elections under the direct control and supervision of the
DILG. Contrary to respondents contention, this did not contravene Art.
IX, C, 2(1) of the Constitution which provides that the COMELEC shall
have the power to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum,
and recall. Elections for SK officers are not subject to the supervision of
the COMELEC in the same way that, as we have recently held, contests
involving elections of SK officials do not fall within the jurisdiction of the
COMELEC. In Mercado v. Board of Election Supervisors, it was [8]

contended that
COMELEC Resolution No. 2499 is null and void because: (a) it
prescribes a separate set of rules for the election of the SK Chairman
different from and inconsistent with that set forth in the Omnibus
Election Code, thereby contravening Section 2, Article 1 of the said
Code which explicitly provides that it shall govern all elections of
public officers; and, (b) it constitutes a total, absolute, and complete
abdication by the COMELEC of its constitutionally and statutorily
mandated duty to enforce and administer all election laws as provided
for in Section 2(1), Article IX-C of the Constitution; Section 52,
Article VIII of the Omnibus Election Code; and Section 2, Chapter 1,
Subtitle C, Title 1, Book V of the 1987 Administrative Code. [9]

Rejecting this contention, this Court, through Justice Davide, held:

Section 252 of the Omnibus Election Code and that portion of paragraph (2),
Section 2, Article IX-C of the Constitution on the COMELECs exclusive
appellate jurisdiction over contests involving elective barangay officials refer to
the elective barangay officials under the pertinent laws in force at the time the
Omnibus Election Code was enacted and upon the ratification of the
Constitution. That law was B.P. Blg. 337, otherwise known as the Local
Government Code, and the elective barangay officials referred to were the
punong barangay and the six sangguniang bayan members. They were to be
elected by those qualified to exercise the right of suffrage. They are also the
same officers referred to by the provisions of the Omnibus Election Code of the
Philippines on election of barangay officials. Metropolitan and municipal trial
courts had exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to the Regional Trial
Courts.

....

In the light of the foregoing, it is indisputable that contests involving elections

of SK (formerly KB) officials do not fall within Section 252 of the Omnibus
Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and
that no law in effect prior to the ratification of the Constitution had made the
SK chairman an elective barangay official. His being an ex-officio member of
the sangguniang barangay does not make him one for the law specifically
provides who are its elective members, viz., the punong barangay and the seven
regular sangguniang barangay members who are elected at large by those who
are qualified to exercise the right of suffrage under Article V of the
Constitution and who are duly registered voters of the barangay. [10]

The choice of the DILG for the task in question was appropriate and
was in line with the legislative policy evident in several statutes.Thus,
P.D. No. 684 (April 15, 1975), in creating Kabataang Barangays in every
barangay throughout the country, provided in 6 that the Secretary of
Local Government and Community Development shall promulgate such
rules and regulations as may be deemed necessary to effectively
implement the provisions of this Decree. Again, in 1985 Proclamation
No. 2421 of the President of the Philippines, in calling for the general
elections of the Kabataang Barangay on July 13-14, 1985, tasked the
then Ministry of Local Government, the Ministry of Education, Culture
and Sports, and the Commission on Elections to assist the Kabataang
Barangay in the conduct of the elections. On the other hand, in a
Memorandum Circular dated March 7, 1988, President Corazon C.
Aquino directed the Secretary of Local Government to issue the
necessary rules and regulations for effecting the representation of the
Kabataang Barangay, among other sectors, in the legislative bodies of
the local government units.
The role of the COMELEC in the 1992 elections for SK officers was
by no means inconsequential. DILG supervision was to be exercised
within the framework of detailed and comprehensive rules embodied in
Resolution No. 2499 of the COMELEC. What was left to the DILG to
perform was the enforcement of the rules.
 Second. It is contended that, in its resolution in question, the
COMELEC did not name the barangays which, because they had
conducted kabataang barangay elections between January 1, 1988 and
January 1, 1992, were not included in the SK elections to be held on
December 4, 1992. That these barangays were precisely to be
determined by the DILG is, however, fairly inferable from the authority
given to the DILG to supervise the conduct of the elections. Since
532(d) provided for kabataang barangay officials whose term of office
was extended beyond 1992, the authority to supervise the conduct of
elections in that year must necessarily be deemed to include the
authority to determine which kabataang barangay would not be included
in the 1992 elections.
The authority granted was nothing more than the ascertainment of a
fact, namely, whether between January 1, 1988 and January 1, 1992
elections had been held in a given kabataang barangay. If elections had
been conducted, then no new elections had to be held on December 4,
1992 since by virtue of 532(d) the term of office of the kabataang
barangay officials so elected was extended correspondingly to coincide
with the term of office of those elected under [the Local Government
Code of 1991]. In doing this, the Secretary of Interior and Local
Government was to act merely as the agent of the legislative
department, to determine and declare the event upon which its
expressed will was to take effect. There was no undue delegation of
[11]

legislative power but only of the discretion as to the execution of a

law. That this is constitutionally permissible is the teaching of our
cases. [12]

Third. Respondents claim, however, that the May 26, 1990 KB

elections in Manila were void because (a) they were called at the
instance of then Mayor Gemiliano C. Lopez who did not have authority
to do so and (b) it was not held under COMELEC supervision.
The 1990 elections for the Kabataang Barangay were called by then
Manila Mayor Gemiliano C. Lopez, Jr., who in his Executive Order No.
21 dated April 25, 1990 stated:

WHEREAS, the Kabataang Barangay as an organization provided for under

Batas Pambansa Bilang 337, has been practically dormant since the advent of
the present national administration;
WHEREAS, there is an urgent need to involve the youth in the affairs and
undertakings of the government to ensure the participation of all sectors of our
population in the task of nation building;

WHEREAS, the last elections for the Kabataang Barangay officers were held in
November 1985 yet, which is over their three years term of office;

WHEREAS, most of the present crop of KB officers are way past the age limit
provided for under the law;

....

The elections were actually held on May 26, 1990 in the 897
barangays of Manila. Later, on June 30, 1990, KB City Federation
elections were conducted.
It was precisely to foreclose any question regarding the validity of
KB elections held in the aftermath of the EDSA revolution and upon the
effectivity of the new Local Government Code that the exception clause
of 532(d) was inserted. The proceedings of the Bicameral Conference
Committee which drafted the Code show the following: [13]

CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section,

ha!
HON. LINA: . . .
Page 436, lines 13 to 14 delete within eighteen months prior to December 31,
1990, and in lieu thereof, insert from 1988 up to the effectivity of the
Code. The rationale. . . .
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: Provided however, that the Local
Government Units which have conducted elections for the Kabataang
Barangay as provided for, in Batas Pambansa Bilang 337, up to the
effectivity. . . .
CHAIRMAN DE PEDRO: So, any deletion from the word within, ha, up to. . . .
HON. LINA: Remove the words, the phrase, within eighteen months prior to
December 31, 1990, and insert from 1988 up to the effectivity of this Code.
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga
election, eh, na ginawa, eh. There are five thousand barangays, based on
the record of the DILG, out of forty thousand, imagine that, na nag-conduct
na ng election nila based on the KB Constitution and By-Laws, and theyre
sitting already, now if we do not recognize that, mag[ka]karoon sila ng
question.
 CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.

Section 532(d) may thus be deemed to be a curative law. Curative

laws, which in essence are retrospective in effect, are enacted to
validate acts done which otherwise would be invalid under existing laws,
by considering them as having complied with the existing laws. Such
laws are recognized in this jurisdiction.
[14]

Fourth. It is finally contended that the exemption of the barangays of

the City of Manila from the requirement to hold elections for SK officers
on December 4, 1992 would deny the youth voters in those barangays
of the equal protection of laws. Respondents claim that only in the
barangays in the City of Manila, which then numbered 897, were
elections for SK not held in 1992 on the ground that between January 1,
1988 and January 1, 1992 there had already been SK elections held,
when, according to petitioners own evidence, during that period, SK
elections had actually been conducted in 5,000 barangays.
Whether this claim is true cannot be ascertained from the records of
this case. Merely showing that there were 5,000 barangays which
similarly held KB elections between January 1, 1988 and January 1,
1992 does not prove that despite that fact these same barangays were
permitted to hold elections on December 4, 1992. For one thing,
according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568
barangays in the Province of Bulacan did not have SK elections on
December 4, 1992 either, because they already had elections between
January 1, 1988 and January 1, 1992. For another, even assuming that
only barangays in Manila were not permitted to hold SK elections on
December 4, 1992 while the rest of the 5,000 barangays were allowed
even if KB elections had already been held there before, this fact does
not give the youth voters in the 897 Manila barangays ground for
complaint because what the other barangays did was contrary to
law. There is no discrimination here.
In People v. Vera this Court struck down the Probation Law
[15]

because it permitted unequal application of its benefits by making its

applicability depend on the decision of provincial governments to
appropriate or not to appropriate funds for the salaries of probation
officers, with the result that those not disposed to allow the benefits of
probations to be enjoyed by their inhabitants could simply omit to
provide for the salaries of probation officers. The difference between
that case and the one at bar lies in the fact that what youth voters in the
other barangays might have been allowed was not a right which was
denied to youth voters in Manila. If those barangays were not entitled to
have SK elections on December 4, 1992 but nevertheless were allowed
to have such elections, that fact did not mean those in Manila should
similarly have been allowed to conduct elections on December 4, 1992
because the fact was that they already had their own, just two years
before on May 26, 1990. Respondents equal protection argument
violates the dictum that one wrong does not make another wrong right.
WHEREFORE, the decision of the Regional Trial Court of Manila,
Branch 36 is REVERSED and the case filed against petitioner by private
respondents is DISMISSED.
SO ORDERED.
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban,
JJ., concur.
Narvasa, C.J., and Torres, Jr., J., on leave.

EN BANC

AKBAYAN CITIZENS ACTION

PARTY (AKBAYAN), PAMBANSANG G.R. No. 170516
KATIPUNAN NG MGA SAMAHAN
SA KANAYUNAN (PKSK), Present:
ALLIANCE OF PROGRESSIVE PUNO, C.J.,
LABOR (APL), VICENTE A. FABE, QUISUMBING,
ANGELITO R. MENDOZA, MANUEL YNARES-SANTIAGO,
P. QUIAMBAO, ROSE BEATRIX CARPIO,
CRUZ-ANGELES, CONG. LORENZO AUSTRIA-MARTINEZ,
R. TANADA III, CONG. MARIO CORONA,
JOYO AGUJA, CONG. LORETA ANN CARPIO MORALES,
P. ROSALES, CONG. ANA AZCUNA,
THERESIA HONTIVEROS- TINGA,
BARAQUEL, AND CONG. CHICO-NAZARIO,
EMMANUEL JOEL J. VILLANUEVA, VELASCO, JR.,
Petitioners, NACHURA,
REYES,
- versus LEONARDO-DE CASTRO, &
BRION, JJ.
THOMAS G. AQUINO, in his capacity
as Undersecretary of the Department of
Trade and Industry (DTI) and
Chairman and Chief Delegate of the
Philippine Coordinating Committee
(PCC) for the Japan-Philippines
Economic Partnership Agreement,
EDSEL T. CUSTODIO, in his capacity
as Undersecretary of the Department of
Promulgated:
Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO
ABON, in his capacity as Chairman of July 16, 2008
the Tariff Commission and lead
negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her
capacity as Assistant Director-General
of the National Economic Development
Authority (NEDA) and lead negotiator
for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in
her capacity as Foreign Service Officer
I, Office of the Undersecretary for
International Economic Relations of the
DFA and lead negotiator for the
General and Final Provisions of the
JPEPA, ERLINDA ARCELLANA, in
her capacity as Director of the Board of
Investments and lead negotiator for
Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her
capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for
Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA
GIGETTE IMPERIAL, in her capacity
as Director of the Bureau of Local
Employment of the Department of
Labor and Employment (DOLE) and
lead negotiator for Movement of
Natural Persons of the JPEPA,
PASCUAL DE GUZMAN, in his
capacity as Director of the Board of
Investments and lead negotiator for
Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead
negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for
Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity
as Officer-in-Charge of the Government
Procurement Policy Board Technical
Support Office, the government agency
that is leading the negotiations on
Government Procurement of the
JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead
negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO,
in his capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Petitioners non-government organizations, Congresspersons, citizens and
taxpayers seek via the present petition for mandamus and prohibition to
obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese
offers submitted during the negotiation process and all pertinent attachments
and annexes thereto.

Petitioners Congressmen Lorenzo R. Taada III and Mario

Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for
an inquiry into the bilateral trade agreements then being negotiated by the
Philippine government, particularly the JPEPA. The Resolution became the
basis of an inquiry subsequently conducted by the House Special Committee
on Globalization (the House Committee) into the negotiations of the JPEPA.

In the course of its inquiry, the House Committee requested herein

respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the
Philippine Coordinating Committee created under Executive Order No. 213
(CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO
STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC
PARTNERSHIP AGREEMENT)[1] to study and negotiate the proposed
JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.

Congressman Aguja later requested for the same document,

but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof once the negotiations are
completed and as soon as a thorough legal review of the proposed agreement
has been conducted.

In a separate move, the House Committee, through

Congressman Herminio G. Teves, requested Executive Secretary
Eduardo Ermita to furnish it with all documents on the subject including the
latest draft of the proposed agreement, the requests and offers etc.[2] Acting
on the request, Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:
 In its letter dated 15 June 2005 (copy enclosed), [the]
D[epartment of] F[oreign] A[ffairs] explains that the Committees
request to be furnished all documents on the JPEPA may be
difficult to accomplish at this time, since the proposed
Agreement has been a work in progress for about three
years. A copy of the draft JPEPA will however be forwarded to
the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)

Congressman Aguja also requested NEDA Director-

General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by
letter of July 1, 2005, for copies of the latest text of the JPEPA.

Chairman Abon replied, however, by letter of July 12, 2005 that the
Tariff Commission does not have a copy of the documents being requested,
albeit he was certain that Usec. Aquino would provide the Congressman
with a copy once the negotiation is completed. And by letter of July 18,
2005, NEDA Assistant Director-General Margarita R. Songco informed the
Congressman that his request addressed to Director-General Neri had been
forwarded to Usec. Aquino who would be in the best position to respond to
the request.

In its third hearing conducted on August 31, 2005, the House Committee
resolved to issue a subpoena for the most recent draft of the JPEPA, but the
same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had
requested him to hold in abeyance the issuance of the subpoena until the
President gives her consent to the disclosure of the documents.[3]

Amid speculations that the JPEPA might be signed by the Philippine

government within December 2005, the present petition was filed
on December 9, 2005.[4] The agreement was to be later signed on September
9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime
Minister Junichiro Koizumi in Helsinki, Finland, following which the
President endorsed it to the Senate for its concurrence pursuant to Article
VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.

The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the Senate
grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures,
paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final
provisions.[5]

While the final text of the JPEPA has now been made accessible to the
public since September 11, 2006,[6] respondents do not dispute that, at the
time the petition was filed up to the filing of petitioners Reply when the
JPEPA was still being negotiated the initial drafts thereof were kept from
public view.

Before delving on the substantive grounds relied upon by petitioners in

support of the petition, the Court finds it necessary to first resolve some
material procedural issues.

Standing

For a petition for mandamus such as the one at bar to be given due course, it
must be instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right.[7]Respondents deny that petitioners have
such standing to sue. [I]n the interest of a speedy and definitive resolution of
the substantive issues raised, however, respondents consider it sufficient to
cite a portion of the ruling in Pimentel v. Office of Executive
Secretary[8] which emphasizes the need for a personal stake in the outcome
of the controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters
of public concern, which is a public right by its very nature, petitioners need
not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general
public which possesses the right.[9] As the present petition is anchored on the
right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.

Mootness

Considering, however, that [t]he principal relief petitioners are praying for is
the disclosure of the contents of the JPEPA prior to its finalization between
the two States parties,[10] public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has
been largely rendered moot and academic.

With the Senate deliberations on the JPEPA still pending, the agreement as it
now stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through
the procedures required by the laws of each country for its entry into
force, viz:

Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the
date on which the Governments of the Parties exchange
diplomatic notes informing each other that their respective legal
procedures necessary for entry into force of this Agreement
have been completed. It shall remain in force unless terminated
as provided for in Article 165.[11] (Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate for concurrence
is part of the legal procedures which must be met prior to the agreements
entry into force.

The text of the JPEPA having then been made accessible to the public, the
petition has become moot and academic to the extent that it seeks the
disclosure of the full text thereof.

The petition is not entirely moot, however, because petitioners seek to

obtain, not merely the text of the JPEPA, but also the Philippine and
Japanese offers in the course of the negotiations.[12]

A discussion of the substantive issues, insofar as they impinge on petitioners

demand for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to
information on matters of public concern[13] and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest.[14] Second,
they contend that non-disclosure of the same documents undermines their
right to effective and reasonable participation in all levels of social, political,
and economic decision-making.[15] Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been concluded will
effectively make the Senate into a mere rubber stamp of the Executive, in
violation of the principle of separation of powers.

Significantly, the grounds relied upon by petitioners for the disclosure of

the latest text of the JPEPA are, except for the last, the same as those cited
for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being
purely speculatory given that the Senate is still deliberating on the JPEPA,
shall not.

The JPEPA is a matter of public concern

To be covered by the right to information, the information sought must meet

the threshold requirement that it be a matter of public concern. Apropos is
the teaching of Legaspi v. Civil Service Commission:

In determining whether or not a particular information is of public

concern there is no rigid test which can be applied. Public concern
like public interest is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an
ordinary citizen.In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the
public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is

evident that the Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.

Respondents claim of privilege

It is well-established in jurisprudence that neither the right to information

nor the policy of full public disclosure is absolute, there being matters
which, albeit of public concern or public interest, are recognized as
privileged in nature. The types of information which may be considered
privileged have been elucidated in Almonte v. Vasquez,[17] Chavez v.
PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate
v. Ermita[20] where the Court reaffirmed the validity of the doctrine of
executive privilege in this jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground

invoked to justify it and the context in which it is made.[21] In the present
case, the ground for respondents claim of privilege is set forth in
their Comment, viz:

x x x The categories of information that may be considered

privileged includes matters of diplomatic character and under
negotiation and review. In this case, the privileged character of
the diplomatic negotiations has been categorically invoked and
clearly explained by respondents particularly respondent DTI
Senior Undersecretary.

The documents on the proposed JPEPA as well as the text which

is subject to negotiations and legal review by the parties fall under
the exceptions to the right of access to information on matters of
public concern and policy of public disclosure. They come within
the coverage of executive privilege. At the time when the
Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to
change. Considering the status and nature of such documents then
and now, these are evidently covered by executive privilege
consistent with existing legal provisions and settled jurisprudence.

Practical and strategic considerations likewise counsel against the

disclosure of the rolling texts which may undergo radical change
or portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the
course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded
strict confidentiality.[22] (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains
to diplomatic negotiations then in progress.

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in

this jurisdiction. In discussing valid limitations on the right to information,
the Court in Chavez v. PCGG held that information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may
be subject to reasonable safeguards for the sake of national interest.[23] Even
earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons
for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information

from the Presidents representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement.[25] The Court denied
the petition, stressing that secrecy of negotiations with foreign countries is
not violative of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information. The Resolution went on
to state, thus:

The nature of diplomacy requires centralization of authority

and expedition of decision which are inherent in executive
action.Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about open
and secret diplomacy, with disparagement of the latter, Secretaries
of State Hughes and Stimson have clearly analyzed and justified
the practice. In the words of Mr. Stimson:

A complicated negotiation . . . cannot be carried

through without many, many private talks and
discussion, man to man; many tentative
suggestions and proposals. Delegates from other
countries come and tell you in confidence of their
troubles at home and of their differences with
other countries and with other delegates; they tell
 you of what they would do under certain
circumstances and would not do under other
circumstances. . . If these reports . . . should
become public . . . who would ever
trust American Delegations in another
conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).

xxxx

There is frequent criticism of the secrecy in which negotiation

with foreign powers on nearly all subjects is concerned. This,
it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, It can be said that there
is no more rigid system of silence anywhere in the world. (E.J.
Young, Looking Behind the Censorship, J. B. Lippincott Co.,
1938) President Wilson in starting his efforts for the conclusion of
the World War declared that we must have open covenants,
openly arrived at. He quickly abandoned his thought.

No one who has studied the question believes that such a method
of publicity is possible. In the moment that negotiations are
started, pressure groups attempt to muscle in. An ill-timed
speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would
quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are
fully published, there is ample opportunity for discussion
before it is approved. (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.

v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the
nation in its negotiations with foreign countries, viz:

x x x In this vast external realm, with its important, complicated,

delicate and manifold problems, the President alone has the power
to speak or listen as a representative of the
 nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade
it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, The President is the sole organ of the
nation in its external relations, and its sole representative with
foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that

while the final text of the JPEPA may not be kept perpetually confidential
since there should be ample opportunity for discussion before [a treaty] is
approved the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable
to conclude that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of the Philippines to
deal not only with Japan but with other foreign governments in
future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to

public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering
into compromises, it bears noting that treaty negotiations, or any negotiation
for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of
greater national interest. Apropos are the following observations of
Benjamin S. Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to

be in agreement that publicity leads to grandstanding, tends to
freeze negotiating positions, and inhibits the give-and-take
essential to successful negotiation. As Sissela Bok points out, if
negotiators have more to gain from being approved by their own
sides than by making a reasoned agreement with competitors or
 adversaries, then they are inclined to 'play to the gallery . . .'' In
fact, the public reaction may leave them little option. It would
be a brave, or foolish, Arab leader who expressed publicly a
willingness for peace with Israel that did not involve the return of
the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel's existing settlements from Judea and
Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to

compromise, we may be jeopardizing higher national goals for the sake of
securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined
if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.

Whether petitioners have established the presence of such a public interest

shall be discussed later. For now, the Court shall first pass upon the
arguments raised by petitioners against the application of PMPF
v. Manglapus to the present case.

Arguments proffered by petitioners against the application of PMPF

v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the

present case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the

nature of the treaty involved. They stress that PMPF v. Manglapus involved
the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic
treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the
Military Bases Agreement, are not so vital to national security to disallow
their disclosure.

Petitioners argument betrays a faulty assumption that information, to be

considered privileged, must involve national security. The recognition
in Senate v. Ermita[29] that executive privilege has encompassed claims of
varying kinds, such that it may even be more accurate to speak of executive
privileges, cautions against such generalization.

While there certainly are privileges grounded on the necessity of

safeguarding national security such as those involving military secrets, not
all are founded thereon. One example is the informers privilege, or the
privilege of the Government not to disclose the identity of a person or
persons who furnish information of violations of law to officers charged
with the enforcement of that law.[30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in
any given instance. Otherwise, the privilege would be inapplicable in all but
the most high-profile cases, in which case not only would this be contrary to
long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications,

which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for
the privilege being that

x x x [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. x xx[31] (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend
on the nature of the case deliberated upon, so presidential communications
are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible
criminal wrongdoing. [32] This qualification applies whether the privilege is
being invoked in the context of a judicial trial or a congressional
investigation conducted in aid of legislation.[33]

Closely related to the presidential communications privilege is

the deliberative process privilege recognized in the United States.As
discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck &
Co,[34] deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policiesare formulated. Notably, the privileged
status of such documents rests, not on the need to protect national
security but, on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery
and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close resemblance to the

deliberative process and presidential communications privilege. It may be
readily perceived that the rationale for the confidential character of
diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege
for diplomatic negotiations is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege for presidential
communications, the diplomatic negotiations privilege seeks, through the
same means, to protect the independence in decision-making of the
President, particularly in its capacity as the sole organ of the nation in its
external relations, and its sole representative with foreign nations. And, as
with the deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information per se,
but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.

The decision of the U.S. District Court, District of Columbia in Fulbright

& Jaworski v. Department of the Treasury[37]enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of
the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were the
issues to be discussed, positions which the French and U.S. teams took on
some points, the draft language agreed on, and articles which needed to be
amended. Upholding the confidentiality of those notes, Judge Green ruled,
thus:

Negotiations between two countries to draft a treaty represent

a true example of a deliberative process. Much give-and-take
must occur for the countries to reach an accord. A description
of the negotiations at any one point would not provide an
onlooker a summary of the discussions which could later be relied
on as law. It would not be working law as the points discussed and
positions agreed on would be subject to change at any date until
the treaty was signed by the President and ratified by the Senate.

The policies behind the deliberative process privilege support

non-disclosure. Much harm could accrue to the negotiations
process if these notes were revealed. Exposure of the pre-
agreement positions of the French negotiators might well
offend foreign governments and would lead to less candor by
the U. S. in recording the events of the negotiations
process. As several months pass in between negotiations, this lack
of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these
policies should be changed, public confusion would result easily.

Finally, releasing these snapshot views of the negotiations

would be comparable to releasing drafts of the treaty,
 particularly when the notes state the tentative provisions and
language agreed on. As drafts of regulations typically are
protected by the deliberative process privilege, Arthur
Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705
(D.C.Cir., May 21, 1982), drafts of treaties should be accorded
the same protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a

logical consequence from the privileged character of the deliberative
process.

The Court is not unaware that in Center for International Environmental

Law (CIEL), et al. v. Office of U.S. TradeRepresentative[38] where the
plaintiffs sought information relating to the just-completed negotiation of a
United States-Chile Free Trade Agreement the same district court, this time
under Judge Friedman, consciously refrained from applying the doctrine
in Fulbright and ordered the disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application
of the doctrine in Fulbright, a discussion of why the district court did not
apply the same would help illumine this Courts own reasons for deciding
the present case along the lines ofFulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of
Information Act (FOIA).[39] In order to qualify for protection under
Exemption 5, a document must satisfy two conditions: (1) it must be
either inter-agency or intra-agency in nature, and (2) it must be both pre-
decisional and part of the agency's deliberative or decision-making
process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of
context between the two cases, based his decision on what he perceived to
be a significant distinction: he found the negotiators notes that were sought
in Fulbright to be clearly internal, whereas the documents being sought
in CIEL were those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal in
character, the question of disclosure therein turned not on the threshold
requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative
process. On this basis, Judge Friedman found that Judge Green's discussion
[in Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency,
and the Court does not reach the question of deliberative
process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the
same to be irrelevant in light of its distinct factual setting. Whether this
conclusion was valid a question on which this Court would not pass the
ruling in Fulbright that [n]egotiations between two countries to draft a
treaty represent a true example of a deliberative process was left standing,
since the CIEL court explicitly stated that it did not reach the question of
deliberative process.

Going back to the present case, the Court recognizes that the
information sought by petitioners includes documents produced and
communicated by a party external to the Philippine government, namely,
the Japanese representatives in the JPEPA negotiations, and to that extent
this case is closer to the factual circumstances of CIEL than those
of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes
the principle articulated in Fulbright that the public policy underlying the
deliberative process privilege requires that diplomatic negotiations should
also be accorded privileged status, even if the documents subject of the
present case cannot be described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of
information based on its finding that the first requirement of FOIA
Exemption 5 that the documents be inter-agency was not met. In
determining whether the government may validly refuse disclosure of the
exchanges between the U.S. and Chile, it necessarily had to deal with this
requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is

there any statutory requirement similar to FOIA Exemption 5 in
particular. Hence, Philippine courts, when assessing a claim of privilege for
diplomatic negotiations, are more free to focus directly on the issue
of whether the privilege being claimed is indeed supported by public
policy, without having to consider as the CIEL court did if these
negotiations fulfill a formal requirement of being inter-agency. Important
though that requirement may be in the context of domestic negotiations, it
need not be accorded the same significance when dealing with international
negotiations.

There being a public policy supporting a privilege for diplomatic

negotiations for the reasons explained above, the Court sees no reason to
modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF

v. Manglapus from the present case is the fact that the petitioners therein
consisted entirely of members of the mass media, while petitioners in the
present case include members of the House of Representatives who invoke
their right to information not just as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members
of Congress to demand information on negotiations of international trade
agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of

members of the mass media, it would be incorrect to claim that the doctrine
laid down therein has no bearing on a controversy such as the present, where
the demand for information has come from members of Congress, not only
from private citizens.

The privileged character accorded to diplomatic negotiations does

not ipso facto lose all force and effect simply because the same privilege
is now being claimed under different circumstances. The probability of
the claim succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another matter
altogether.

The Courts statement in Senate v. Ermita that presidential refusals to furnish

information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informers privilege, and a generic
privilege for internal deliberations], and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may be invoked
under different procedural settings. That this principle holds true particularly
with respect to diplomatic negotiations may be inferred from PMPF
v. Manglapus itself, where the Court held that it is the President alone who
negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.

Clearly, the privilege for diplomatic negotiations may be invoked not

only against citizens demands for information, but also in the context of
legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged
character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and
historical contexts of the two cases are worlds apart. They claim that the
constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were
incompatible with each other or the incompatibility hypothesis, while valid
when international relations were still governed by power, politics and wars,
are no longer so in this age of international cooperation.[42]

Without delving into petitioners assertions respecting the incompatibility

hypothesis, the Court notes that the ruling in PMPF v. Manglapus is
grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that
the nature of treaty negotiations have so changed that [a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides no longer lead[s] to widespread propaganda
to block the negotiations, or that parties in treaty negotiations no
longer expect their communications to be governed by historic
confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.

Whether the privilege applies only at certain stages of the negotiation

process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a

reasonable amount of confidentiality so as not to jeopardize the diplomatic
process. They argue, however, that the same is privileged only at certain
stages of the negotiating process, after which such information must
necessarily be revealed to the public.[43] They add that the duty to disclose
this information was vested in the government when the negotiations moved
from the formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v.
[44] [45]
PCGG and Chavez v. PEA.

The following statement in Chavez v. PEA, however, suffices to show that

the doctrine in both that case and Chavez v. PCGG with regard to the duty to
disclose definite propositions of the government does not apply to
diplomatic negotiations:

We rule, therefore, that the constitutional right to information

includes official information on on-going negotiations before a
final contract. The information, however, must
constitute definite propositions by the government and should
not cover recognized exceptions like privileged information,
military and diplomatic secrets and similar matters affecting
national security and public order. x x x[46] (Emphasis and
underscoring supplied)

It follows from this ruling that even definite propositions of the government
may not be disclosed if they fall under recognized exceptions. The privilege
for diplomatic negotiations is clearly among the recognized exceptions, for
the footnote to the immediately quoted ruling cites PMPF
v. Manglapus itself as an authority.

Whether there is sufficient public interest to overcome the claim of

privilege

It being established that diplomatic negotiations enjoy a presumptive

privilege against disclosure, even against the demands of members of
Congress for information, the Court shall now determine whether petitioners
have shown the existence of a public interest sufficient to overcome the
privilege in this instance.

To clarify, there are at least two kinds of public interest that must be
taken into account. One is the presumed public interest in favor of keeping
the subject information confidential, which is the reason for the privilege
in the first place, and the other is the public interest in favor of disclosure,
the existence of which must be shown by the party asking for
information. [47]

The criteria to be employed in determining whether there is a sufficient

public interest in favor of disclosure may be gathered from cases such
as U.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign
Activities v. Nixon,[49] and In re Sealed Case.[50]

U.S. v. Nixon, which involved a claim of the presidential communications

privilege against the subpoena duces tecum of a district court in
a criminal case, emphasized the need to balance such claim of privilege
against the constitutional duty of courts to ensure a fair administration
of criminal justice.

x x x the allowance of the privilege to withhold evidence that

is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the
basic function of the courts. A Presidents acknowledged need
for confidentiality in the communications of his office is
general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular
criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The
Presidents broad interest in confidentiality of communications
will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the
pending criminal cases. (Emphasis, italics and underscoring
supplied)

Similarly, Senate Select Committee v. Nixon,[51] which involved a

claim of the presidential communications privilege against the
subpoena duces tecum of a Senate committee, spoke of the need to balance
such claim with the duty of Congress to perform its legislative functions.
 The staged decisional structure established in Nixon v. Sirica was
designed to ensure that the President and those upon whom he
directly relies in the performance of his duties could continue to
work under a general assurance that their deliberations would
remain confidential. So long as the presumption that the public
interest favors confidentiality can be defeated only by a strong
showing of need by another institution of government- a
showing that the responsibilities of that institution cannot
responsibly be fulfilled without access to records of the
President's deliberations- we believed in Nixon v. Sirica, and
continue to believe, that the effective functioning of the
presidential office will not be impaired. x x x

xxxx

The sufficiency of the Committee's showing of need has come

to depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and

presidential communications privileges against a subpoena duces tecum of a
grand jury. On the claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege

and can be overcome by a sufficient showing of need. This need
determination is to be made flexibly on a case-by-case, ad hoc
basis. "[E]ach time [the deliberative process privilege] is asserted
the district court must undertake a fresh balancing of the
competing interests," taking into account factors such as "the
relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the
government," and the "possibility of future timidity by
government employees. x x x (Emphasis, italics and
underscoring supplied)

Petitioners have failed to present the strong and sufficient showing of

need referred to in the immediately cited cases. The arguments they proffer
to establish their entitlement to the subject documents fall short of this
standard.

Petitioners go on to assert that the non-involvement of the Filipino people in

the JPEPA negotiation process effectively results in the bargaining away of
their economic and property rights without their knowledge and
participation, in violation of the due process clause of the Constitution. They
claim, moreover, that it is essential for the people to have access to the initial
offers exchanged during the negotiations since only through such disclosure
can their constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.

Whether it can accurately be said that the Filipino people were not involved
in the JPEPA negotiations is a question of fact which this Court need not
resolve. Suffice it to state that respondents had presented documents
purporting to show that public consultations were conducted on the
JPEPA. Parenthetically, petitioners consider these alleged consultations as
woefully selective and inadequate.[53]

AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the
public, the Court shall pass upon the issue of whether access to the
documents bearing on them is, as petitioners claim, essential to their right to
participate in decision-making.

The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11,
2006, even as it is still being deliberated upon by the Senate and, therefore,
not yet binding on the Philippines. Were the Senate to concur with the
validity of the JPEPA at this moment, there has already been, in the words
of PMPF v. Manglapus, ample opportunity for discussion before [the treaty]
is approved.

The text of the JPEPA having been published, petitioners have failed to
convince this Court that they will not be able to meaningfully exercise their
right to participate in decision-making unless the initial offers are also
published.

It is of public knowledge that various non-government sectors and private

citizens have already publicly expressed their views on the JPEPA, their
comments not being limited to general observations thereon but on its
specific provisions. Numerous articles and statements critical of the JPEPA
have been posted on the Internet.[54] Given these developments, there is no
basis for petitioners claim that access to the Philippine and Japanese offers is
essential to the exercise of their right to participate in decision-making.

Petitioner-members of the House of Representatives additionally

anchor their claim to have a right to the subject documents on the basis of
Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the
power to regulate international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude
Congress from the JPEPA negotiations since whatever power and authority
the President has to negotiate international trade agreements is derived only
by delegation of Congress, pursuant to Article VI, Section 28(2) of the
Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]

The subject of Article VI Section 28(2) of the Constitution is not the

power to negotiate treaties and international agreements, but the power to fix
tariff rates, import and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix

within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts
within the framework of the national development program of the
Government.
As to the power to negotiate treaties, the constitutional basis thereof is
Section 21 of Article VII the article on the Executive Department
which states:

No treaty or international agreement shall be valid and effective

unless concurred in by at least two-thirds of all the Members of
the Senate.

The doctrine in PMPF v. Manglapus that the treaty-making power is

exclusive to the President, being the sole organ of the nation in its external
relations, was echoed in BAYAN v. Executive Secretary[56] where the Court
held:

By constitutional fiat and by the intrinsic nature of his office,

the President, as head of State, is the sole organ and authority
in the external affairs of the country. In many ways, the
President is the chief architect of the nation's foreign policy;
his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in
the external affairs of the nation, as Jefferson describes,
is executive altogether.

As regards the power to enter into treaties or international

agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v.

Executive Secretary[57] where the Court ruled:
 In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign
nations. As the chief architect of foreign policy, the President acts
as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to

negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of
all the members of the Senate for the validity of the treaty
entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to
Congress, and is exercised by the President only by delegation of that body,
it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of
at least two-thirds of all the Members of the Senate for the validity of the
treaty. In this light, the authority of the President to enter into trade
agreements with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent in its
office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President
must still ensure that all treaties will substantively conform to all the
relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing

vast legislative powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the
conduct of negotiations attendant to its conclusion. Moreover, it is not even
Congress as a whole that has been given the authority to concur as a means
of checking the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens,

petitioners-members of the House of Representatives fail to present
a sufficient showing of need that the information sought is critical to the
performance of the functions of Congress, functions that do not include
treaty-negotiation.

Respondents alleged failure to timely claim executive privilege

On respondents invocation of executive privilege, petitioners find the same

defective, not having been done seasonably as it was raised only in their
Comment to the present petition and not during the House Committee
hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege
should not be credited. Petitioners position presupposes that an assertion of
the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.

When the House Committee and petitioner-

Congressman Aguja requested respondents for copies of the documents
subject of this case, respondents replied that the negotiations were still on-
going and that the draft of the JPEPA would be released once the text
thereof is settled and complete. There was no intimation that the requested
copies are confidential in nature by reason of public policy. The response
may not thus be deemed a claim of privilege by the standards of Senate
v. Ermita, which recognizes as claims of privilege only those which are
accompanied by precise and certain reasons for preserving
the confidentiality of the information being sought.

Respondents failure to claim the privilege during the House Committee

hearings may not, however, be construed as a waiver thereof by the
Executive branch. As the immediately preceding paragraph indicates, what
respondents received from the House Committee and petitioner-
Congressman Aguja were mere requests for information. And
as priorly stated, the House Committee itself refrained from pursuing its
earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Veneciasalleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to
it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an
assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry. [59] So
long as Congress itself finds no cause to enforce such power, there is no
strict necessity to assert the privilege. In this light, respondents failure to
invoke the privilege during the House Committee investigations did not
amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in

respondents Comment to this petition fails to satisfy in full the requirement
laid down in Senate v. Ermita that the claim should be invoked by the
President or through the Executive Secretary by order of the
President.[60] Respondents claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case.

The assertion of executive privilege by the Executive Secretary, who is one

of the respondents herein, without him adding the phrase by order of the
President, shall be considered as partially complying with the requirement
laid down in Senate v. Ermita.The requirement that the phrase by order of
the President should accompany the Executive Secretarys claim of privilege
is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the
petition.[61] A strict application of this requirement would thus be
unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a
genuine zeal to protect our peoples right to information against any abuse of
executive privilege. It is a zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of

executive privilege, should be careful not to veer towards the opposite
extreme, to the point that it would strike down as invalid even a legitimate
exercise thereof.

We respond only to the salient arguments of the Dissenting Opinion

which have not yet been sufficiently addressed above.

1. After its historical discussion on the allocation of power over international

trade agreements in the United States, the dissent concludes that it will be
turning somersaults with history to contend that the President is the sole
organ for external relations in that jurisdiction. With regard to this opinion,
We make only the following observations:

There is, at least, a core meaning of the phrase sole organ of the nation in its
external relations which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has
the power to regulate commerce with foreign nations but does not have the
power to negotiate international agreements directly.[62]

What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives,

by asking for the subject JPEPA documents, are not seeking
to directly participate in the negotiations of the JPEPA, hence, they cannot
be prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following
ruling in Agan v. PIATCO[63] and in other cases both before and since should
be applied:

This Court has long and consistently adhered to the legal

maxim that those that cannot be done directly cannot be done
indirectly. To declare the PIATCO contracts valid despite the
clear statutory prohibition against a direct government
guarantee would not only make a mockery of what the BOT Law
seeks to prevent -- which is to expose the government to the risk of
incurring a monetary obligation resulting from a contract of loan
between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT
Law useless for what it seeks to achieve - to make use of the
resources of the private sector in the financing, operation and
maintenance of infrastructure and development projects which
are necessary for national growth and development but which the
government, unfortunately, could ill-afford to finance at this point
in time.[64]

Similarly, while herein petitioners-members of the House of Representatives

may not have been aiming to participate in the negotiations directly, opening
the JPEPA negotiations to their scrutiny even to the point of giving them
access to the offers exchanged between the Japanese and Philippine
delegations would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when it vested
the power of direct negotiation solely with the President.

What the U.S. Constitution sought to prevent and aimed to achieve in

defining the treaty-making power of the President, which our Constitution
similarly defines, may be gathered from Hamiltons explanation of why the
U.S. Constitution excludes the House of Representatives from the treaty-
making process:

x x x The fluctuating, and taking its future increase into

account, the multitudinous composition of that body, forbid us to
expect in it those qualities which are essential to the proper
execution of such a trust. Accurate and comprehensive knowledge
 of foreign politics; a steady and systematic adherence to the same
views; a nice and uniform sensibility to national character,
decision, secrecy and dispatch; are incompatible with a body so
variable and so numerous. The very complication of the business
by introducing a necessity of the concurrence of so many different
bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the
greater length of time which it would often be necessary to keep
them together when convened, to obtain their sanction in the
progressive stages of a treaty, would be source of so great
inconvenience and expense, as alone ought to condemn the
project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine

Constitution, unlike that of the U.S., does not even grant the Senate the
power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have
been concluded.[66] Much less, therefore, should it be inferred that the House
of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access
to the subject JPEPA documents would set a precedent for future
negotiations, leading to the contravention of the public interests articulated
above which the Constitution sought to protect, the subject documents
should not be disclosed.

2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure cited
in the June 23, 2005 letter of Sec. Ermita, and later in their Comment,
necessarily apply only for as long as the negotiations were still pending;

In their Comment, respondents contend that the negotiations of the

representatives of the Philippines as well as of Japanmust be allowed to
explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents involved in the
JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not
only until, but even after, the conclusion of the negotiations.

Judicial deliberations do not lose their confidential character once a decision

has been promulgated by the courts. The same holds true with respect to
working drafts of opinions, which are comparable to intra-
agency recommendations. Such intra-agency recommendations are
privileged even after the position under consideration by the agency has
developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the
inter-agency and intra-agency communications during the stage when
common assertions are still being formulated.[67]

3. The dissent claims that petitioner-members of the House of

Representatives have sufficiently shown their need for the same documents
to overcome the privilege. Again, We disagree.

The House Committee that initiated the investigations on the JPEPA did not
pursue its earlier intention to subpoena the documents. This strongly
undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the
documents were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to
pursue an action or not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its legislative
functions.

Further, given that respondents have claimed executive privilege, petitioner-

members of the House of Representatives should have, at least,
shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the
JPEPA covers a subject matter over which Congress has the power to
legislate would not suffice. As Senate Select Committee v. Nixon[68] held,
the showing required to overcome the presumption favoring confidentiality
turns, not only on the nature and appropriateness of the function in the
performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment. This petitioners failed to do.

Furthermore, from the time the final text of the JPEPA including its annexes
and attachments was published, petitioner-members of the House of
Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has
become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the
JPEPA documents, the dissent contends that the Executive has failed to
show how disclosing them after the conclusion of negotiations would impair
the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is
able to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.

When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties
to show that they have a strong need for the information sufficient to
overcome the privilege. They have not, however.

4. Respecting the failure of the Executive Secretary to explicitly state that he

is claiming the privilege by order of the President, the same may not be
strictly applied to the privilege claim subject of this case.

When the Court in Senate v. Ermita limited the power of invoking the
privilege to the President alone, it was laying down a new rule for which
there is no counterpart even in the United States from which the concept of
executive privilege was adopted. As held in the 2004 case of Judicial Watch,
Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of
whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on
the other hand, held that [t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after
actual personal consideration by that officer.

The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the
privilege in light of its highly exceptional nature. The Courts recognition
that the Executive Secretary also bears the power to invoke the privilege,
provided he does so by order of the President, is meant to avoid laying down
too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that the Court
should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.

5. To show that PMPF v. Manglapus may not be applied in the present case,
the dissent implies that the Court therein erred in citing US
v. Curtiss Wright[72] and the book entitled The New American Government
and Its Work[73] since these authorities, so the dissent claims, may not be
used to calibrate the importance of the right to information in the Philippine
setting.

The dissent argues that since Curtiss-Wright referred to a conflict between

the executive and legislative branches of government, the factual setting
thereof was different from that of PMPF v. Manglapus which involved a
collision between governmental power over the conduct of foreign affairs
and the citizens right to information.

That the Court could freely cite Curtiss-Wright a case that upholds the
secrecy of diplomatic negotiations against congressional demands for
information in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that
the privileged character accorded to diplomatic negotiations does not ipso
factolose all force and effect simply because the same privilege is now being
claimed under different circumstances.

PMPF v. Manglapus indeed involved a demand for information from private

citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend
to matters recognized as privileged information under the separation of
powers. What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the publics right to
information.

Chavez v. PCGG[75] also involved the publics right to information, yet

the Court recognized as a valid limitation to that right the same privileged
information based on separation of powers closed-door Cabinet meetings,
executive sessions of either house of Congress, and the internal deliberations
of the Supreme Court.

These cases show that the Court has always regarded claims of privilege,
whether in the context of an executive-legislative conflict or a citizens
demand for information, as closely intertwined, such that the principles
applicable to one are also applicable to the other.

The reason is obvious. If the validity of claims of privilege were to be

assessed by entirely different criteria in each context, this may give rise to
the absurd result where Congress would be denied access to a particular
information because of a claim of executive privilege, but the general
public would have access to the same information, the claim of privilege
notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the
clear and present danger test for the assessment of claims of privilege
against citizens demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present
danger of a substantive evil that the State has a right to prevent, it would be
very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege
in order to shift the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more difficult for
Congress to access executive information than it would be for private
citizens.

We maintain then that when the Executive has already shown that an
information is covered by executive privilege, the party demanding the
information must present a strong showing of need, whether that party is
Congress or a private citizen.

The rule that the same showing of need test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing
the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown
by the party seeking information in every particular instance is highly
significant in determining whether to uphold a claim of privilege. This need
is, precisely, part of the context in light of which every claim of privilege
should be assessed.

Since, as demonstrated above, there are common principles that should be

applied to executive privilege controversies across different contexts, the
Court in PMPF v. Manglapus did not err when it cited the Curtiss-
Wright case.

The claim that the book cited in PMPF v. Manglapus entitled The New
American Government and Its Work could not have taken into account the
expanded statutory right to information in the FOIA assumes that the
observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA. Such
assumption is, with due respect, at best, speculative.

As to the claim in the dissent that [i]t is more doubtful if the same book be
used to calibrate the importance of the right of access to information in the
Philippine setting considering its elevation as a constitutional right, we
submit that the elevation of such right as a constitutional right did not set it
free from the legitimate restrictions of executive privilege which is
itself constitutionally-based.[76] Hence, the comments in that book which
were cited in PMPF v. Manglapus remain valid doctrine.

6. The dissent further asserts that the Court has never used need as a test to
uphold or allow inroads into rights guaranteed under the Constitution. With
due respect, we assert otherwise. The Court has done so before, albeit
without using the term need.

In executive privilege controversies, the requirement that parties present a

sufficient showing of need only means, in substance, that they should show a
public interest in favor of disclosure sufficient in degree to overcome the
claim of privilege.[77] Verily, the Court in such cases engages in a balancing
of interests. Such a balancing of interests is certainly not new in
constitutional adjudication involving fundamental rights. Secretary of
Justice v. Lantion,[78] which was cited in the dissent, applied just such a test.

Given that the dissent has clarified that it does not seek to apply the clear
and present danger test to the present controversy, but the balancing test,
there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply. It
would appear that the only disagreement is on the results of applying that
test in this instance.

The dissent, nonetheless, maintains that it suffices that information is of

public concern for it to be covered by the right, regardless of the publics
need for the information, and that the same would hold true even if they
simply want to know it because it interests them. As has been stated earlier,
however, there is no dispute that the information subject of this case is a
matter of public concern. The Court has earlier concluded that it is a matter
of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.

However, when the Executive has as in this case invoked the privilege, and
it has been established that the subject information is indeed covered by the
privilege being claimed, can a party overcome the same by merely asserting
that the information being demanded is a matter of public concern, without
any further showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.

Moreover, in view of the earlier discussions, we must bear in mind that, by

disclosing the documents of the JPEPA negotiations, the Philippine
government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How
would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it because it
interests them.

Thus, the Court holds that, in determining whether an information is

covered by the right to information, a specific showing of need for such
information is not a relevant consideration, but only whether the same is a
matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed
covered by the same, then the party demanding it, if it is to overcome the
privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably
participate in social, political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage
where the people can exercise their right to participate in the discussion
whether the Senate should concur in its ratification or not. (Emphasis
supplied) It adds that this right will be diluted unless the people can have
access to the subject JPEPA documents. What, to the dissent, is a dilution of
the right to participate in decision-making is, to Us, simply a recognition of
the qualified nature of the publics right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive
privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-
making would be diluted, We reiterate that our people have been
exercising their right to participate in the discussion on the issue of the
JPEPA, and they have been able to articulate their different opinions without
need of access to the JPEPA negotiation documents.

Thus, we hold that the balance in this case tilts in favor of executive
privilege.

8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate
Select Committee case, and In re Sealed Case, are similarly applicable to the
present controversy, the dissent cites the caveat in the Nixon case that the
U.S. Court was there addressing only the Presidents assertion of privilege in
the context of a criminal trial, not a civil litigation nor a congressional
demand for information. What this caveat means, however, is only that
courts must be careful not to hastily apply the ruling therein to other
contexts. It does not, however, absolutely mean that the principles applied in
that case may never be applied in such contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on
claims of executive privilege in contexts other than a criminal trial, as in the
case of Nixon v. Administrator of General Services[80] which involved former
President Nixons invocation of executive privilege to challenge the
constitutionality of the Presidential Recordings and Materials Preservation
Act[81] and the above-mentioned In re Sealed Case which involved a claim
of privilege against a subpoena duces tecum issued in a grand jury
investigation.

Indeed, in applying to the present case the principles found in U.S. v.

Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability[82] a case involving an executive-legislative
conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the Presidents
generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope and
use of Presidential communication privilege in the case at bar.[83] While
the Court was divided in Neri, this opinion of the Chief Justice was not
among the points of disagreement, and We similarly hold now that
the Nixon case is a useful guide in the proper resolution of the present
controversy, notwithstanding the difference in context.

Verily, while the Court should guard against the abuse of executive
privilege, it should also give full recognition to the validity of the
privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own
credibility, for it would be perceived as no longer aiming to strike a balance,
but seeking merely to water down executive privilege to the point of
irrelevance.

Conclusion

To recapitulate, petitioners demand to be furnished with a copy of the full

text of the JPEPA has become moot and academic, it having been made
accessible to the public since September 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents claim of executive
privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution

in PMPF v. Manglapus on September 13, 1988, been recognized as
privileged in this jurisdiction and the reasons proffered by petitioners against
the application of the ruling therein to the present case have not persuaded
the Court. Moreover, petitioners both private citizens and members of the
House of Representatives have failed to present a sufficient showing of
need to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents Comment to
the present petition, and not during the hearings of the House Special
Committee on Globalization, is of no moment, since it cannot be interpreted
as a waiver of the privilege on the part of the Executive branch.

For reasons already explained, this Decision shall not be interpreted as

departing from the ruling in Senate v. Ermita that executive privilege should
be invoked by the President or through the Executive Secretary by order of
the President.

WHEREFORE, the petition is DISMISSED.

[G.R. No. 93100. June 19, 1997]

ATLAS FERTILIZER CORPORATION, petitioner, vs. THE

HONORABLE SECRETARY OF THE DEPARTMENT OF
AGRARIAN REFORM, respondent.

[G.R. No. 97855. June 19, 1997]

PHILIPPINE FEDERATION OF FISHFARM PRODUCERS,

INC., petitioner, vs. THE HONORABLE SECRETARY OF
THE DEPARTMENT OF AGRARIAN REFORM, respondent.

RESOLUTION
ROMERO, J.:

Before this Court are consolidated petitions questioning the constitutionality

of some portions of Republic Act No. 6657 otherwise known as the
Comprehensive Agrarian Reform Law.[1]
Petitioners Atlas Fertilizer Corporation,[2] Philippine Federation of Fishfarm
Producers, Inc. and petitioner-in-intervention Archies Fishpond, Inc. and Arsenio
Al. Acuna[3] are engaged in the aquaculture industry utilizing fishponds and prawn
farms. They assail Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A. 6657, as well
as the implementing guidelines and procedures contained in Administrative Order
Nos. 8 and 10 Series of 1988 issued by public respondent Secretary of the
Department of Agrarian Reform as unconstitutional.
Petitioners claim that the questioned provisions of CARL violate the
Constitution in the following manner:

1. Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend agrarian reform to
aquaculture lands even as Section 4, Article XIII of the constitution limits
agrarian reform only to agriculture lands.

2. The questioned provisions similarly treat of aquaculture lands and agriculture

lands when they are differently situated, and differently treat aquaculture lands
and other industrial lands, when they are similarly situated in violation of the
constitutional guarantee of the equal protection of the laws.

3. The questioned provisions distort employment benefits and burdens in favor

of aquaculture employees and against other industrial workers even as Section
1 and 3, Article XIII of the Constitution mandate the State to promote equality
in economic and employment opportunities.

4. The questioned provisions deprive petitioner of its government-induced

investments in aquaculture even as Sections 2 and 3, Article XIII of the
Constitution mandate the State to respect the freedom of enterprise and the
right of enterprises to reasonable returns on investments and to expansion and
growth.

The constitutionality of the above-mentioned provisions has been ruled upon

in the case of Luz Farms, Inc. v. Secretary of AgrarianReform[4] regarding the
inclusion of land devoted to the raising of livestock, poultry and swine in its
coverage.
The issue now before this Court is the constitutionality of the same above-
mentioned provisions insofar as they include in its coverage lands devoted to the
aquaculture industry, particularly fishponds and prawn farms.
In their first argument, petitioners contend that in the case
of Luz Farms, Inc. v. Secretary of Agrarian Reform,[5] this Court has already ruled
impliedly that lands devoted to fishing are not agriculture lands. In aquaculture,
fishponds and prawn farms, the use of land is only incidental to and not the
principal factor in productivity and, hence, as held in Luz Farms, they too should
be excluded from R.A. 6657 just as lands devoted to livestock, swine, and poultry
have been excluded for the same reason. They also argue that they are entitled
to the full benefit of Luz Farms to the effect that only five percent of the total
investment in aquaculture activities, fishponds, and prawn farms, is in the form of
land, and therefore, cannot be classified as agricultural activity. Further, that in
fishponds and prawn farms, there are no farmers, nor farm workers, who till
lands, and no agrarian unrest, and therefore, the constitutionally intended
beneficiaries under Section 4, Art. XIII, 1987 Constitution do not exist in
aquaculture.
In their second argument, they contend that R.A. 6657, by including in its
coverage, the raising of fish and aquaculture operations including fishponds and
prawn ponds, treating them as in the same class or classification as agriculture or
farming violates the equal protection clause of the Constitution and is, therefore,
void. Further, the Constitutional Commission debates show that the intent of the
constitutional framers is to exclude industrial lands, to which category lands
devoted to aquaculture, fishponds, and fish farms belong.
Petitioners also claim that Administrative Order Nos. 8 and 10 issued by the
Secretary of the Department of Agrarian Reform are, likewise, unconstitutional,
as held in Luz Farms, and are therefore void as they implement the assailed
provisions of CARL.
The provisions of CARL being assailed as unconstitutional are as follows:

(a) Section 3(b) which includes the raising of fish in the definition
of Agricultural, Agricultural Enterprise or Agricultural Activity. (Underscoring
Supplied)

(b) Section 11 which defines commercial farms as private agricultural lands

devoted to fishponds and prawn ponds x x x. (Underscoring Supplied)

(c) Section 13 which calls upon petitioner to execute a production-sharing plan.

(d) Section 16 (d) and 17 which vest on the Department of Agrarian reform the
authority to summarily determine the just compensation to be paid for lands
covered by the comprehensive Agrarian reform Law.

(e) Section 32 which spells out the production-sharing plan mentioned in

Section 13-

x x x (W)hereby three percent (3%) of the gross sales from the production of
such lands are distributed within sixty (60) days at the end of the fiscal year as
compensation to regular and other farmworkers in such lands over and above
the compensation they currently receive: Provided, That these individuals or
entities realize gross sales in excess of five million pesos per annum unless the
DAR, upon proper application, determines a lower ceiling.

In the event that the individual or entity realizes a profit, an additional ten
percent (10%) of the net profit after tax shall be distributed to said regular and
other farmworkers within ninety (90) days of the end of the fiscal year. x x x
 While the Court will not hesitate to declare a law or an act void when
confronted squarely with constitutional issues, neither will it preempt the
Legislative and the Executive branches of the government in correcting or
clarifying, by means of amendment, said law or act. On February 20, 1995,
Republic Act No. 7881[6] was approved by Congress. Provisions of said Act
pertinent to the assailed provisions of CARL are the following:

Section 1. Section 3, Paragraph (b) of Republic Act No. 6657 is hereby

amended to read as follows:

Sec. 3. Definitions. -- For the purpose of this Act, unless the context indicates
otherwise:

(b) Agriculture, Agricultural Enterprise or Agricultural Activity means the

cultivation of the soil, planting of crops, growing of fruit trees, including the
harvesting of such farm products and other farm activities and practices
performed by a farmer in conjunction with such farming operations done by
persons whether natural or juridical.

Sec. 2. Section 10 of Republic Act No. 6657 is hereby amended to read as

follows:

Sec. 10. Exemptions and Exclusions.--

xxx xxx xxx

b) Private lands actually, directly and exclusively used for prawn farms and
fishponds shall be exempt from the coverage of this Act: Provided, That said
prawn farms and fishponds have not been distributed and Certificate of Land
Ownership Award (CLOA) issued to agrarian reform beneficiaries under the
Comprehensive Agrarian Reform Program.

In cases where the fishponds or prawn farms have been subjected to the
Comprehensive Agrarian Reform Law, by voluntary offer to sell, or
commercial farms deferment or notices of compulsory acquisition, a simple and
absolute majority of the actual regular workers or tenants must consent to the
exemption within one (1) year from the effectivity of this Act. When the
workers or tenants do not agree to this exemption, the fishponds or prawn farms
shall be distributed collectively to the worker-beneficiaries or tenants who shall
form a cooperative or association to manage the same.

In cases where the fishponds or prawn farms have not been subjected to the
Comprehensive Agrarian Reform Law, the consent of the farm workers shall no
longer be necessary, however, the provision of Section 32-A hereof on
incentives shall apply.

xxx xxx xxx

Sec. 3. Section 11, paragraph 1 is hereby amended to read as follows:

Sec. 11. Commercial Farming.-- Commercial Farms, which are private

agricultural lands devoted to salt beds, fruit farms, orchards, vegetable and cut-
flower farms, and cacao, coffee and rubber plantations, shall be subject to
immediate compulsory acquisition and distribution after ten (10) years from the
effectivity of this Act. In the case of new farms, the ten-year period shall begin
from the first year of commercial production and operation, as determined by
the DAR. During the ten-year period, the Government shall initiate steps
necessary to acquire these lands, upon payment of just compensation for the
land and the improvements thereon, preferably in favor of organized
cooperatives or associations, which shall thereafter manage the said lands for
the workers-beneficiaries.

Sec. 4. There shall be incorporated after Section 32 of Republic Act No. 6657 a
section to read as follows:

Sec. 32-A. Incentives.-- Individuals or entities owning or operating fishponds

and prawn farms are hereby mandated to execute within six (6) months from
the effectivity of this Act, an incentive plan with their regular fishpond or
prawn farm workers organization, if any, whereby seven point five percent
(7.5%) of their net profit before tax from the operation of the fishpond or prawn
farms are distributed within sixty (60) days at the end of the fiscal year as
compensation to regular and other pond workers in such ponds over and above
the compensation they currently receive.

In order to safeguard the right of the regular fishpond or prawn farm workers
under the incentive plan, the books of the fishpond or prawn owners shall be
subject to periodic audit or inspection by certified public accountants chosen by
the workers.

The foregoing provisions shall not apply to agricultural lands subsequently

converted to fishponds or prawn farms provided the size of the land converted
does not exceed the retention limit of the landowner.

The above-mentioned provisions of R.A. No. 7881 expressly state that

fishponds and prawn farms are excluded from the coverage of CARL. In view of
the foregoing, the question concerning the constitutionality of the assailed
provisions has become moot and academic with the passage of R.A. No. 7881.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza,
Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.
Padilla, Bellosillo, Kapunan, and Francisco, JJ., on leave.

SO ORDERED.

[G.R. No. 159085. February 3, 2004]

SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO

NG MANGGAGAWA, represented by REP. RENATO
MAGTUBO petitioners, vs. EXECUTIVE SECRETARY
SECRETARY ANGELO REYES, GENERAL NARCISO
ABAYA, DIR. GEN. HERMOGENES EBDANE, respondents.

[G.R. No. 159103. February 3, 2004]

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely,

SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE
B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D.
MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY
ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE
SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL
DEFENSE ANGELO REYES, and HON. SECRETARY JOSE
LINA, JR., respondents.

[G.R. No. 159185. February 3, 2004]

REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP.
CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP.
ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-
SANTOS, and REP. GEORGILU R. YUMUL-
HERMIDA, petitioners, vs. PRESIDENT GLORIA
MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY
ALBERTO G. ROMULO, respondents.

[G.R. No. 159196. February 3, 2004]

AQUILINO Q. PIMENTEL, JR. as a Member of the

Senate, petitioner, vs. SECRETARY ALBERTO ROMULO,
AS EXECUTIVE SECRETARY; SECRETARY ANGELO
REYES, AS SECRETARY OF NATIONAL DEFENSE;
GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE
ARMED FORCES; SECRETARY JOSE LINA, et
al., respondents.

DECISION
TINGA, J.:

They came in the middle of the night. Armed with high-powered

ammunitions and explosives, some three hundred junior officers and
enlisted men of the Armed Forces of the Philippines (AFP) stormed into
the Oakwood Premiere apartments in Makati City in the wee hours of
July 27, 2003. Bewailing the corruption in the AFP, the soldiers
demanded, among other things, the resignation of the President, the
Secretary of Defense and the Chief of the Philippine National Police
(PNP). [1]

In the wake of the Oakwood occupation, the President issued later in

the day Proclamation No. 427 and General Order No. 4, both declaring
a state of rebellion and calling out the Armed Forces to suppress the
rebellion. Proclamation No. 427 reads in full:

PROCLAMATION NO. 427

DECLARING A STATE OF REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed
with high-powered firearms and explosives, acting upon the instigation and
command and direction of known and unknown leaders, have seized a building
in Makati City, put bombs in the area, publicly declared withdrawal of support
for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to
the Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and depriving the President of the Republic of the
Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 of the Revised
Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines

are being supported, abetted and aided by known and unknown leaders,
conspirators and plotters in the government service and outside the
government;

WHEREAS, under Section 18, Article VII of the present Constitution,

whenever it becomes necessary, the President, as the Commander-in-Chief of
the Armed Forces of the Philippines, may call out such Armed Forces to
suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the

powers vested in me by law, hereby confirm the existence of an actual and on-
going rebellion, compelling me to declare a state of rebellion.

In view of the foregoing, I am issuing General Order No. 4 in accordance with

Section 18, Article VII of the Constitution, calling out the Armed Forces of the
Philippines and the Philippine National Police to immediately carry out the
necessary actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.

General Order No. 4 is similarly worded:

GENERAL ORDER NO. 4

DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE

PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed

with high-powered firearms and explosives, acting upon the instigation and
command and direction of known and unknown leaders, have seized a building
in Makati City, put bombs in the area, publicly declared withdrawal of support
for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to
the Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and depriving the President of the Republic of the
Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 et seq. of the
Revised Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines

are being supported, abetted and aided by known and unknown leaders,
conspirators and plotters in the government service and outside the
government;

WHEREAS, under Section 18, Article VII of the present Constitution,

whenever it becomes necessary, the President, as the Commander-in-Chief of
all Armed Forces of the Philippines, may call out such Armed Forces to
suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the

powers vested in me by the Constitution as President of the Republic of the
Philippines and Commander-in-Chief of all the armed forces of the Philippines
and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon
the Armed Forces of the Philippines and the Philippine National Police to
suppress and quell the rebellion.

I hereby direct the Chief of the Armed Forces of the Philippines and the Chief
of the Philippine National Police and the officers and men of the Armed Forces
of the Philippines and the Philippine National Police to immediately carry out
the necessary and appropriate actions and measures to suppress and quell the
rebellion with due regard to constitutional rights.

By the evening of July 27, 2003, the Oakwood occupation had

ended. After hours-long negotiations, the soldiers agreed to return to
barracks. The President, however, did not immediately lift the
declaration of a state of rebellion and did so only on August 1, 2003,
through Proclamation No. 435:

DECLARING THAT THE STATE OF REBELLION HAS CEASED TO

EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of
rebellion was declared;

WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was
issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant
to Article VII, Section 18 of the Constitution, the Armed Forces of the
Philippines and the Philippine National Police were directed to suppress and
quell the rebellion;

WHEREAS, the Armed Forces of the Philippines and the Philippine National
Police have effectively suppressed and quelled the rebellion.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the

Philippines, by virtue of the powers vested in me by law, hereby declare that
the state of rebellion has ceased to exist.

In the interim, several petitions were filed before this Court

challenging the validity of Proclamation No. 427 and General Order No.
4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et
al.), party-list organizations Sanlakas and Partido ng Manggagawa
[2]

(PM), contend that Section 18, Article VII of the Constitution does not
require the declaration of a state of rebellion to call out the armed
forces. They further submit that, because of the cessation of the
[3]

Oakwood occupation, there exists no sufficient factual basis for the

proclamation by the President of a state of rebellion for an indefinite
period. [4]

Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon.

Executive Secretary, et al.) are officers/members of the Social Justice
Society (SJS), Filipino citizens, taxpayers, law professors and bar
reviewers. Like Sanlakas and PM, they claim that Section 18, Article VII
[5]

of the Constitution does not authorize the declaration of a state of

rebellion. They contend that the declaration is a constitutional anomaly
[6]

that confuses, confounds and misleads because [o]verzealous public

officers, acting pursuant to such proclamation or general order, are
liable to violate the constitutional right of private citizens. Petitioners
[7]

also submit that the proclamation is a circumvention of the report

requirement under the same Section 18, Article VII, commanding the
President to submit a report to Congress within 48 hours from the
proclamation of martial law. Finally, they contend that the presidential
[8]
issuances cannot be construed as an exercise of emergency powers as
Congress has not delegated any such power to the President. [9]

In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-

Arroyo and Executive Secretary Romulo), petitioners brought suit as
citizens and as Members of the House of Representatives whose rights,
powers and functions were allegedly affected by the declaration of a
state of rebellion. Petitioners do not challenge the power of the
[10]

President to call out the Armed Forces. They argue, however, that the
[11]

declaration of a state of rebellion is a superfluity, and is actually an

exercise of emergency powers. Such exercise, it is contended,
[12]

amounts to a usurpation of the power of Congress granted by Section

23 (2), Article VI of the Constitution.
[13]

In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator

assails the subject presidential issuances as an unwarranted, illegal and
abusive exercise of a martial law power that has no basis under the
Constitution. In the main, petitioner fears that the declaration of a state
[14]

of rebellion opens the door to the unconstitutional implementation of

warrantless arrests for the crime of rebellion. [15]

Required to comment, the Solicitor General argues that the petitions

have been rendered moot by the lifting of the declaration. In addition,
[16]

the Solicitor General questions the standing of the petitioners to bring

suit.
[17]

The Court agrees with the Solicitor General that the issuance of
Proclamation No. 435, declaring that the state of rebellion has ceased to
exist, has rendered the case moot. As a rule, courts do not adjudicate
moot cases, judicial power being limited to the determination
of actual controversies. Nevertheless, courts will decide a question,
[18]

otherwise moot, if it is capable of repetition yet evading review. The [19]

case at bar is one such case.

Once before, the President on May 1, 2001 declared a state of
rebellion and called upon the AFP and the PNP to suppress the
rebellion through Proclamation No. 38 and General Order No. 1. On that
occasion, an angry and violent mob armed with explosives, firearms,
bladed weapons, clubs, stones and other deadly weapons assaulted
and attempted to break into Malacaang. Petitions were filed before this
[20]

Court assailing the validity of the Presidents declaration. Five days after
such declaration, however, the President lifted the same. The mootness
of the petitions in Lacson v. Perez and accompanying cases precluded[21]

this Court from addressing the constitutionality of the declaration.

 To prevent similar questions from reemerging, we seize this
opportunity to finally lay to rest the validity of the declaration of a state of
rebellion in the exercise of the Presidents calling out power, the
mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members
of Congress, have standing to challenge the subject
issuances. In Philippine Constitution Association v. Enriquez, this [22]

Court recognized that:

To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of
the powers of that institution.

An act of the Executive which injures the institution of Congress causes a

derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort
to the courts.

Petitioner Members of Congress claim that the declaration of a state of

rebellion by the President is tantamount to an exercise of Congress
emergency powers, thus impairing the lawmakers legislative
powers. Petitioners also maintain that the declaration is a subterfuge to
avoid congressional scrutiny into the Presidents exercise of martial law
powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no
legal standing or locus standi to bring suit. Legal standing or locus
standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal stake in
the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. [23]

Petitioners Sanlakas and PM assert that:

2. As a basic principle of the organizations and as an important plank in their

programs, petitioners are committed to assert, defend, protect, uphold, and
promote the rights, interests, and welfare of the people, especially the poor and
marginalized classes and sectors of Philippine society. Petitioners are
committed to defend and assert human rights, including political and civil
rights, of the citizens.

3. Members of the petitioner organizations resort to mass actions and

mobilizations in the exercise of their Constitutional rights to peaceably
assemble and their freedom of speech and of expression under Section 4,
Article III of the 1987 Constitution, as a vehicle to publicly ventilate their
grievances and legitimate demands and to mobilize public opinion to support
the same. [Emphasis in the original.]
[24]

Petitioner party-list organizations claim no better right than the

Laban ng Demokratikong Pilipino, whose standing this Court rejected
in Lacson v. Perez:

petitioner has not demonstrated any injury to itself which would justify the
resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it
cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being threatened with warrantless arrest
and detention for the crime of rebellion. Every action must be brought in the
name of the party whose legal rights has been invaded or infringed, or whose
legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory

relief, petitioner claiming that it[]s right to freedom of expression and freedom
of assembly is affected by the declaration of a state of rebellion and that said
proclamation is invalid for being contrary to the Constitution.

However, to consider the petition as one for declaratory relief affords little
comfort to petitioner, this Court not having jurisdiction in the first instance over
such a petition. Section 5 [1], Article VIII of the Constitution limits the original
jurisdiction of the court to cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. [25]

Even assuming that petitioners are peoples organizations, this

status would not vest them with the requisite personality to question the
validity of the presidential issuances, as this Court made clear
in Kilosbayan v. Morato: [26]

The Constitution provides that the State shall respect the role of independent
peoples organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and aspirations
through peaceful and lawful means, that their right to effective and reasonable
participation at all levels of social, political, and economic decision-making
shall not be abridged. (Art. XIII, 15-16)

These provisions have not changed the traditional rule that only real parties in
interest or those with standing, as the case may be, may invoke the judicial
power. The jurisdiction of this Court, even in cases involving constitutional
questions, is limited by the case and controversy requirement of Art. VIII,
5. This requirement lies at the very heart of the judicial function. It is what
differentiates decisionmaking in the courts from decisionmaking in the political
departments of the government and bars the bringing of suits by just any
party.[27]

That petitioner SJS officers/members are taxpayers and citizens

does not necessarily endow them with standing. A taxpayer may bring
suit where the act complained of directly involves the illegal
disbursement of public funds derived from taxation. No such illegal
[28]

disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional
question only when he can show that he has personally suffered some
actual or threatened injury as a result of the allegedly illegal conduct of
the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action. Again, no
[29]

such injury is alleged in this case.

Even granting these petitioners have standing on the ground that the
issues they raise are of transcendental importance, the petitions must
fail.
It is true that for the purpose of exercising the calling out power the
Constitution does not require the President to make a declaration of a
state of rebellion. Section 18, Article VII provides:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the
suspension of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need
of a call.

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual basis for the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.

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

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

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

The above provision grants the President, as Commander-in-Chief,

a sequence of graduated power[s]. From the most to the least benign,
[30]

these are: the calling out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare martial law. In the
exercise of the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or rebellion,
and that public safety requires the exercise of such power. However, [31]

as we observed in Integrated Bar of the Philippines v. Zamora, [t]hese [32]

conditions are not required in the exercise of the calling out power. The
only criterion is that whenever it becomes necessary, the President may
call the armed forces to prevent or suppress lawless violence, invasion
or rebellion.
Nevertheless, it is equally true that Section 18, Article VII
does not expressly prohibit the President from declaring a state of
rebellion.Note that the Constitution vests the President not only
with Commander-in-Chief powers but, first and foremost,
with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The
executive power shall be vested in the President. As if by exposition,
Section 17 of the same Article provides: He shall ensure that the laws
be faithfully executed. The provisions trace their history to the
Constitution of the United States.
The specific provisions of the U.S. Constitution granting the U.S.
President executive and commander-in-chief powers have remained in
their original simple form since the Philadelphia Constitution of 1776,
Article II of which states in part:

Section 1. 1. The Executive Power shall be vested in a President of the United

States of America . . . .

....

Section 2. 1. The President shall be Commander in Chief of the Army and

Navy of the United States. . . .

....

Section 3. he shall take care that the laws be faithfully executed. [Article II
Executive Power]

Recalling in historical vignettes the use by the U.S. President of the

above-quoted provisions, as juxtaposed against the corresponding
action of the U.S. Supreme Court, is instructive. Clad with the
prerogatives of the office and endowed with sovereign powers, which
are drawn chiefly from the Executive Power and Commander-in-Chief
provisions, as well as the presidential oath of office, the President
serves as Chief of State or Chief of Government, Commander-in-Chief,
Chief of Foreign Relations and Chief of Public Opinion. [33]

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

The Federal Tariff Acts of 1828 and 1832 that Congress enacted did
not pacify the hotspurs from South Carolina. Its State Legislature
ordered an election for a convention, whose members quickly passed
an Ordinance of Nullification. The Ordinance declared the Tariff Acts
unconstitutional, prohibited South Carolina citizens from obeying them
after a certain date in 1833, and threatened secession if the Federal
Government sought to oppose the tariff laws. The Legislature then
implemented the Ordinance with bristling punitive laws aimed at any
who sought to pay or collect customs duties. [35]

Jackson bided his time. His task of enforcement would not be

easy. Technically, the President might send troops into a State only if
the Governor called for help to suppress an insurrection, which would
not occur in the instance. The President could also send troops to see to
it that the laws enacted by Congress were faithfully executed. But these
laws were aimed at individual citizens, and provided no enforcement
machinery against violation by a State. Jackson prepared to ask
Congress for a force bill.[36]

In a letter to a friend, the President gave the essence of his position.

He wrote: . . . when a faction in a State attempts to nullify a
constitutional law of Congress, or to destroy the Union, the balance of
the people composing this Union have a perfect right to coerce them to
obedience. Then in a Proclamation he issued on December 10, 1832,
he called upon South Carolinians to realize that there could be no
peaceable interference with the execution of the laws, and dared them,
disunion by armed force is treason. Are you ready to incur its guilt? [37]

The Proclamation frightened nullifiers, non-nullifiers and tight-rope

walkers. Soon, State Legislatures began to adopt resolutions of
agreement, and the President announced that the national voice from
Maine on the north to Louisiana on the south had declared nullification
and accession confined to contempt and infamy. [38]

No other President entered office faced with problems so formidable,

and enfeebled by personal and political handicaps so daunting, as
Abraham Lincoln.
 Lincoln believed the Presidents power broad and that of Congress
explicit and restricted, and sought some source of executive power not
failed by misuse or wrecked by sabotage. He seized upon the
Presidents designation by the Constitution as Commander-in-Chief,
coupled it to the executive power provision and joined them as the war
power which authorized him to do many things beyond the competence
of Congress. [39]

Lincoln embraced the Jackson concept of the Presidents

independent power and duty under his oath directly to represent and
protect the people. In his Message of July 4, 1861, Lincoln declared that
the Executive found the duty of employing the war power in defense of
the government forced upon him. He could not but perform the duty or
surrender the existence of the Government . . . . This concept began as
a transition device, to be validated by Congress when it assembled. In
less than two-years, it grew into an independent power under which he
felt authorized to suspend the privilege of the writ of habeas corpus,
issue the Emancipation Proclamation, and restore reoccupied States. [40]

Lincolns Proclamation of April 15, 1861, called for 75,000

troops. Their first service, according to the proclamation, would be to
recapture forts, places and property, taking care to avoid any
devastation, any destruction of or interference with property, or any
disturbance of peaceful citizens. [41]

Early in 1863, the U.S. Supreme Court approved President Lincolns

report to use the war powers without the benefit of Congress. The
decision was handed in the celebrated Prize Cases which involved
[42]

suits attacking the Presidents right to legally institute a

blockade. Although his Proclamation was subsequently validated by
Congress, the claimants contended that under international law, a
blockade could be instituted only as a measure of war under the
sovereign power of the State. Since under the Constitution only
Congress is exclusively empowered to declare war, it is only that body
that could impose a blockade and all prizes seized before the legislative
declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld
Lincolns right to act as he had.
[43]

In the course of time, the U.S. Presidents power to call out armed
forces and suspend the privilege of the writ of habeas corpuswithout
prior legislative approval, in case of invasion, insurrection, or rebellion
came to be recognized and accepted. The United States introduced the
expanded presidential powers in the Philippines through the Philippine
Bill of 1902. The use of the power was put to judicial test and this Court
[44]

held that the case raised a political question and said that it is beyond its
province to inquire into the exercise of the power. Later, the grant of
[45]

the power was incorporated in the 1935 Constitution. [46]

Elected in 1884, Grover Cleveland took his ascent to the presidency

to mean that it made him the trustee of all the people. Guided by the
maxim that Public office is a public trust, which he practiced during his
incumbency, Cleveland sent federal troops to Illinois to quell striking
railway workers who defied a court injunction. The injunction banned all
picketing and distribution of handbills. For leading the strikes and
violating the injunction, Debs, who was the union president, was
convicted of contempt of court. Brought to the Supreme Court, the
principal issue was by what authority of the Constitution or statute had
the President to send troops without the request of the Governor of the
State.[47]

In In Re: Eugene Debs, et al, the Supreme Court upheld the

[48]

contempt conviction. It ruled that it is not the governments province to

mix in merely individual present controversies. Still, so it went on,
whenever wrongs complained of are such as affect the public at large,
and are in respect of matters which by the Constitution are entrusted to
the care of the Nation and concerning which the Nation owes the duty to
all citizens of securing to them their common rights, then the mere fact
that the Government has no pecuniary interest in the controversy is not
sufficient to exclude it from the Courts, or prevent it from taking
measures therein to fully discharge those constitutional duties. Thus,
[49]

Clevelands course had the Courts attest.

Taking off from President Cleveland, President Theodore Roosevelt
launched what political scientists dub the stewardship theory. Calling
himself the steward of the people, he felt that the executive power was
limited only by the specific restrictions and prohibitions appearing in the
Constitution, or impleaded by Congress under its constitutional
powers. [50]

The most far-reaching extension of presidential power T.R. ever

undertook to employ was his plan to occupy and operate Pennsylvanias
coal mines under his authority as Commander-in-Chief. In the issue, he
found means other than force to end the 1902 hard-coal strike, but he
had made detailed plans to use his power as Commander-in-Chief to
wrest the mines from the stubborn operators, so that coal production
would begin again. [51]
 Eventually, the power of the State to intervene in and even take over
the operation of vital utilities in the public interest was accepted.In the
Philippines, this led to the incorporation of Section 6, Article XIII of the
[52]

1935 Constitution, which was later carried over with modifications in

Section 7, Article XIV of the 1973 Constitution, and thereafter in
[53]

Section 18, Article XII of the 1987 Constitution.

[54]

The lesson to be learned from the U.S. constitutional history is that

the Commander-in-Chief powers are broad enough as it is and become
more so when taken together with the provision on executive power and
the presidential oath of office. Thus, the plenitude of the powers of the
presidency equips the occupant with the means to address exigencies
or threats which undermine the very existence of government or the
integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late
Mme. Justice Irene R. Cortes, proposed that the Philippine President
was vested with residual power and that this is even greater than that of
the U.S. President. She attributed this distinction to the unitary and
highly centralized nature of the Philippine government. She noted that,
There is no counterpart of the several states of the American union
which have reserved powers under the United States
constitution. Elaborating on the constitutional basis for her argument,
she wrote:

. The [1935] Philippine [C]onstitution establishes the three departments of the

government in this manner: The legislative power shall be vested in a Congress
of the Philippines which shall consist of a Senate and a House of
Representatives. The executive power shall be vested in a President of the
Philippines. The judicial powers shall be vested in one Supreme Court and in
such inferior courts as may be provided by law. These provisions not only
establish a separation of powers by actual division but also confer plenary
legislative, executive, and judicial powers. For as the Supreme Court of the
Philippines pointed out in Ocampo v. Cabangis, a grant of legislative power
means a grant of all the legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the
government. If this is true of the legislative power which is exercised by two
chambers with a combined membership [at that time] of more than 120 and of
the judicial power which is vested in a hierarchy of courts, it can equally if not
more appropriately apply to the executive power which is vested in one official
the president. He personifies the executive branch. There is a unity in the
executive branch absent from the two other branches of government. The
president is not the chief of many executives. He is the executive. His direction
of the executive branch can be more immediate and direct than the United
States president because he is given by express provision of the constitution
control over all executive departments, bureaus and offices. [55]

The esteemed Justice conducted her study against the backdrop of

the 1935 Constitution, the framers of which, early on, arrived at a
general opinion in favor of a strong Executive in the Philippines. Since [56]

then, reeling from the aftermath of martial law, our most recent Charter
has restricted the Presidents powers as Commander-in-Chief. The
same, however, cannot be said of the Presidents powers as Chief
Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld
the Presidents power to forbid the return of her exiled predecessor. The
rationale for the majoritys ruling rested on the Presidents

unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of
the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for
the result was a limitation of specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general
grant of executive power. [Underscoring supplied.Italics in the original.]
[57]

Thus, the Presidents authority to declare a state of rebellion springs

in the main from her powers as chief executive and, at the same time,
draws strength from her Commander-in-Chief powers. Indeed, as the
Solicitor General accurately points out, statutory authority for such a
declaration may be found in Section 4, Chapter 2 (Ordinance Power),
Book III (Office of the President) of the Revised Administrative Code of
1987, which states:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status

or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive
order. [Emphasis supplied.]
 The foregoing discussion notwithstanding, in calling out the armed
forces, a declaration of a state of rebellion is an utter superfluity. At [58]

most, it only gives notice to the nation that such a state exists and that
the armed forces may be called to prevent or suppress it. Perhaps the
[59]

declaration may wreak emotional effects upon the perceived enemies of

the State, even on the entire nation. But this Courts mandate is to probe
only into the legal consequences of the declaration. This Court finds that
such a declaration is devoid of any legal significance. For all legal
intents, the declaration is deemed not written.
Should there be any confusion generated by the issuance of
Proclamation No. 427 and General Order No. 4, we clarify that, as the
dissenters in Lacson correctly pointed out, the mere declaration of a
state of rebellion cannot diminish or violate constitutionally protected
rights. Indeed, if a state of martial law does not suspend the operation
[60]

of the Constitution or automatically suspend the privilege of the writ

of habeas corpus, then it is with more reason that a simple declaration
[61]

of a state of rebellion could not bring about these conditions. At any [62]

rate, the presidential issuances themselves call for the suppression of

the rebellion with due regard to constitutional rights.
For the same reasons, apprehensions that the military and police
authorities may resort to warrantless arrests are likewise
unfounded. In Lacson vs. Perez, supra, majority of the Court held that
[i]n quelling or suppressing the rebellion, the authorities may only resort
to warrantless arrests of persons suspected of rebellion, as provided
under Section 5, Rule 113 of the Rules of Court, if the circumstances
[63]

so warrant. The warrantless arrest feared by petitioners is, thus, not

based on the declaration of a state of rebellion. In other words, a
[64]

person may be subjected to a warrantless arrest for the crime of

rebellion whether or not the President has declared a state of rebellion,
so long as the requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to
call out the armed forces and to determine the necessity for the exercise
of such power. While the Court may examine whether the power was
exercised within constitutional limits or in a manner constituting grave
abuse of discretion, none of the petitioners here have, by way of proof,
supported their assertion that the President acted without factual basis. [65]

The argument that the declaration of a state of rebellion amounts to

a declaration of martial law and, therefore, is a circumvention of the
report requirement, is a leap of logic. There is no indication that military
tribunals have replaced civil courts in the theater of war or that military
authorities have taken over the functions of civil government. There is
no allegation of curtailment of civil or political rights. There is no
indication that the President has exercised judicial and legislative
powers. In short, there is no illustration that the President has attempted
to exercise or has exercised martial law powers.
Nor by any stretch of the imagination can the declaration constitute
an indirect exercise of emergency powers, which exercise depends
upon a grant of Congress pursuant to Section 23 (2), Article VI of the
Constitution:

Sec. 23. (1) .

(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.

The petitions do not cite a specific instance where the President has
attempted to or has exercised powers beyond her powers as Chief
Executive or as Commander-in-Chief. The President, in declaring a
state of rebellion and in calling out the armed forces, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief
powers. These are purely executive powers, vested on the President
by Sections 1 and 18, Article VII, as opposed to the delegated
legislative powers contemplated by Section 23 (2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED.
SO ORDERED.

ATTY. EVILLO C. PORMENTO, G.R. No. 191988

Petitioner,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
versus PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA and
SERENO, JJ.
JOSEPH ERAP EJERCITO
ESTRADA and COMMISSION
ON ELECTIONS,
Respondents.
Promulgated:

August 31, 2010

x--------------------------------------------------x

RESOLUTION
CORONA, C.J.:

What is the proper interpretation of the following provision of Section 4,

Article VII of the Constitution: [t]he President shall not be eligible for any
reelection?
The novelty and complexity of the constitutional issue involved in this
case present a temptation that magistrates, lawyers, legal scholars and law
students alike would find hard to resist. However, prudence dictates that this
Court exercise judicial restraint where the issue before it has already been
mooted by subsequent events. More importantly, the constitutional
requirement of the existence of a case or an actual controversy for the proper
exercise of the power of judicial review constrains us to refuse the allure of
making a grand pronouncement that, in the end, will amount to nothing but a
non-binding opinion.
 The petition asks whether private respondent Joseph Ejercito Estrada
is covered by the ban on the President from any reelection. Private
respondent was elected President of the Republic of the Philippines in the
general elections held on May 11, 1998. He sought the presidency again in
the general elections held on May 10, 2010. Petitioner Atty. Evillo C.
Pormento opposed private respondents candidacy and filed a petition for
disqualification. However, his petition was denied by the Second Division of
public respondent Commission on Elections (COMELEC).[1] His motion for
reconsideration was subsequently denied by the COMELEC en banc.[2]

Petitioner filed the instant petition for certiorari[3] on May 7, 2010.

However, under the Rules of Court, the filing of such petition would not stay
the execution of the judgment, final order or resolution of the COMELEC
that is sought to be reviewed.[4]Besides, petitioner did not even pray for the
issuance of a temporary restraining order or writ of preliminary injunction.
Hence, private respondent was able to participate as a candidate for the
position of President in the May 10, 2010 elections where he garnered the
second highest number of votes.[5]

Private respondent was not elected President the second time he

ran. Since the issue on the proper interpretation of the phrase any reelection
will be premised on a persons second (whether immediate or not) election as
President, there is no case or controversy to be resolved in this case. No live
conflict of legal rights exists.[6] There is in this case no definite, concrete,
real or substantial controversy that touches on the legal relations of parties
having adverse legal interests.[7] No specific relief may conclusively be
decreed upon by this Court in this case that will benefit any of the parties
herein.[8] As such, one of the essential requisites for the exercise of the
power of judicial review, the existence of an actual case or controversy, is
sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing
controversies.[9] The Court is not empowered to decide moot questions or
abstract propositions, or to declare principles or rules of law which cannot
affect the result as to the thing in issue in the case before it.[10] In other
words, when a case is moot, it becomes non-justiciable.[11]

An action is considered moot when it no longer presents a justiciable

controversy because the issues involved have become academic or dead or
when the matter in dispute has already been resolved and hence, one is not
entitled to judicial intervention unless the issue is likely to be raised again
between the parties. There is nothing for the court to resolve as the
determination thereof has been overtaken by subsequent events.[12]

Assuming an actual case or controversy existed prior to the

proclamation of a President who has been duly elected in the May 10, 2010
elections, the same is no longer true today. Following the results of that
elections, private respondent was not elected President for the second time.
Thus, any discussion of his reelection will simply be hypothetical and
speculative. It will serve no useful or practical purpose.

Accordingly, the petition is denied due course and is

hereby DISMISSED.

SO ORDERED.
G.R. No. 204603 September 24, 2013

REPUBLIC OF THE G.R. No. 204603 PHILIPPINES, represented by THE EXECUTIVE

SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONALDEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT THE SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER, THE SECRETARY OF BUDGET AND MANAGEMENT
THE TREASURER OF THE PHILIPPINES, THE CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES, and THE CHIEFOF THE PHILIPPINE NATIONAL
POLICE, Petitioners,
vs.
HERMINIO HARRY ROQUE, MORO CHRISTIAN PEOPLE'S ALLIANCE, FR. JOE DIZON,
RODINIE SORIANO, STEPHANIE ABIERA, MARIA LOURDES ALCAIN, VOLTAIRE
ALFEREZ, CZARINA MAYALTEZ, SHERYL BALOT, RENIZZA BATACAN, EDAN MARRI
CAETE, LEANA CARAMOAN, ALDWIN CAMANCE, RENE DELORINO, PAULYN MAY
DUMAN, RODRIGO FAJARDO III, ANNAMARIE GO, ANNA ARMINDA JIMENEZ, MARY
ANN LEE,LUISA MANALAYSAY, MIGUEL MUSNGI, MICHAEL OCAMPO, NORMAN
ROLAND OCANA III, WILLIAM RAGAMAT, MARICAR RAMOS, CHERRY LOU REYES,
MELISSA ANN SICAT, CRISTINE MAE TABING, VANESSA TORNO, and HON. JUDGE
ELEUTERIO L. BATHAN, as Presiding Judge of Regional Trial Court, Quezon City,
Branch 92, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 are the April 23, 20122 and July 31, 20123 Orders of the
Regional Trial Court of Quezon City, Branch 92(RTC) in Special Civil Action (SCA) No. Q-07-
60778, denying petitioners motion to dismiss (subject motion to dismiss) based on the
following grounds: (a) that the Court had yet to pass upon the constitutionality of Republic
Act No. (RA) 9372,4 otherwise known as the "Human Security Act of 2007," in the
consolidated cases of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council5 (Southern Hemisphere); and (b) that private respondents petition for declaratory
relief was proper.

The Facts

On July 17, 2007, private respondents filed a Petition6 for declaratory relief before the RTC,
assailing the constitutionality of the following sections of RA 9372: (a) Section 3,7 for being
void for vagueness;8 (b) Section 7,9for violating the right to privacy of communication and due
process and the privileged nature of priest-penitent relationships;10 (c)Section 18,11 for
violating due process, the prohibition against ex post facto laws or bills of attainder, the
Universal Declaration of Human Rights, and the International Covenant on Civil and Political
Rights, as well as for contradicting Article 12512 of the Revised Penal Code, as
amended;13 (d) Section 26,14 for violating the right to travel;15 and (e) Section 27,16 for
violating the prohibition against unreasonable searches and seizures.17

Petitioners moved to suspend the proceedings,18 averring that certain petitions (SC petitions)
raising the issue of RA 9372s constitutionality have been lodged before the Court.19 The said
motion was granted in an Order dated October 19, 2007.20
On October 5, 2010, the Court promulgated its Decision21 in the Southern Hemisphere cases
and thereby dismissed the SC petitions.

On February 27, 2012, petitioners filed the subject motion to dismiss,22 contending that
private respondents failed to satisfy the requisites for declaratory relief. Likewise, they
averred that the constitutionality of RA 9372 had already been upheld by the Court in the
Southern Hemisphere cases.

In their Comment/Opposition,23 private respondents countered that: (a) the Court did not
resolve the issue of RA 9372s constitutionality in Southern Hemisphere as the SC petitions
were dismissed based purely on technical grounds; and (b) the requisites for declaratory
relief were met.

The RTC Ruling

On April 23, 2012, the RTC issued an Order24 which denied the subject motion to dismiss,
finding that the Court did not pass upon the constitutionality of RA 9372 and that private
respondents petition for declaratory relief was properly filed.

Petitioners moved for reconsideration25 which was, however, denied by the RTC in an Order
dated July 31, 2012.26The RTC observed that private respondents have personal and
substantial interests in the case and that it would be illogical to await the adverse
consequences of the aforesaid laws implementation considering that the case is of
paramount impact to the Filipino people.27

Hence, the instant petition.

The Issues Before the Court

The present controversy revolves around the issue of whether or not the RTC gravely
abused its discretion when it denied the subject motion to dismiss.

Asserting the affirmative, petitioners argue that private respondents failed to satisfy the
requirements for declaratory relief and that the Court had already sustained with finality the
constitutionality of RA 9372.

On the contrary, private respondents maintain that the requirements for declaratory relief
have been satisfied and that the Court has yet to resolve the constitutionality of RA 9372,
negating any grave abuse of discretion on the RTCs part.

The Courts Ruling

The petition is meritorious.

An act of a court or tribunal can only be considered as with grave abuse of discretion when
such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction.28 It is well-settled that the abuse of discretion to be qualified as "grave" must be
so patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform
the duty or to act at all in contemplation of law.29 In this relation, case law states that not
every error in the proceedings, or every erroneous conclusion of law or fact, constitutes
grave abuse of discretion.30The degree of gravity, as above-described, must be met.
Applying these principles, the Court observes that while no grave abuse of discretion could
be ascribed on the part of the RTC when it found that the Court did not pass upon the
constitutionality of RA 9372 in the Southern Hemisphere cases, it, however, exceeded its
jurisdiction when it ruled that private respondents petition had met all the requisites for an
action for declaratory relief. Consequently, its denial of the subject motion to dismiss was
altogether improper.

To elucidate, it is clear that the Court, in Southern Hemisphere, did not make any definitive
ruling on the constitutionality of RA 9372. The certiorari petitions in those consolidated cases
were dismissed based solely on procedural grounds, namely: (a) the remedy of certiorari
was improper;31 (b) petitioners therein lack locus standi;32and (c) petitioners therein failed to
present an actual case or controversy.33 Therefore, there was no grave abuse of discretion.

The same conclusion cannot, however, be reached with regard to the RTCs ruling on the
sufficiency of private respondents petition for declaratory relief.

Case law states that the following are the requisites for an action for declaratory relief:

first , the subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance; second , the terms of said
documents and the validity thereof are doubtful and require judicial construction; third , there
must have been no breach of the documents in question; fourth , there must be an actual
justiciable controversy or the "ripening seeds" of one between persons whose interests are
adverse; fifth , the issue must be ripe for judicial determination; and sixth , adequate relief is
not available through other means or other forms of action or proceeding.34

Based on a judicious review of the records, the Court observes that while the
first,35 second,36 and third37requirements appear to exist in this case, the fourth, fifth, and
sixth requirements, however, remain wanting.

As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the
"ripening seeds" of one exists in this case.

Pertinently, a justiciable controversy refers to an existing case or controversy that is

appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory.38 Corollary thereto, by "ripening seeds" it is meant, not that sufficient accrued
facts may be dispensed with, but that a dispute may be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle
that looms ahead. The concept describes a state of facts indicating imminent and inevitable
litigation provided that the issue is not settled and stabilized by tranquilizing declaration.39

A perusal of private respondents petition for declaratory relief would show that they have
failed to demonstrate how they are left to sustain or are in immediate danger to sustain some
direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far
removed from the factual milieu in the Southern Hemisphere cases, private respondents only
assert general interests as citizens, and taxpayers and infractions which the government
could prospectively commit if the enforcement of the said law would remain untrammeled. As
their petition would disclose, private respondents fear of prosecution was solely based on
remarks of certain government officials which were addressed to the general public.40 They,
however, failed to show how these remarks tended towards any prosecutorial or
governmental action geared towards the implementation of RA 9372 against them. In other
words, there was no particular, real or imminent threat to any of them. As held in Southern
Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness. 1wphi1

The possibility of abuse in the implementation of RA 9372does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar
to RA 9372 since the exercise of any power granted by law may be abused. Allegations of
abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.41 (Emphasis
supplied; citations omitted)

Thus, in the same light that the Court dismissed the SC petitions in the Southern
Hemisphere cases on the basis of, among others, lack of actual justiciable controversy (or
the ripening seeds of one), the RTC should have dismissed private respondents petition for
declaratory relief all the same.

It is well to note that private respondents also lack the required locus standi to mount their
constitutional challenge against the implementation of the above-stated provisions of RA
9372 since they have not shown any direct and personal interest in the case.42 While it has
been previously held that transcendental public importance dispenses with the requirement
that the petitioner has experienced or is in actual danger of suffering direct and personal
injury,43 it must be stressed that cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation.44 Towards this end,
compelling State and societal interests in the proscription of harmful conduct necessitate a
closer judicial scrutiny of locus standi,45 as in this case. To rule otherwise, would be to
corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.46

As to the fifth requisite for an action for declaratory relief, neither can it be inferred that the
controversy at hand is ripe for adjudication since the possibility of abuse, based on the
above-discussed allegations in private respondents petition, remain highly-speculative and
merely theorized. It is well-settled that a question is ripe for adjudication when the act being
1wphi1

challenged has had a direct adverse effect on the individual challenging it.47 This private
respondents failed to demonstrate in the case at bar.

Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a
discussion on the availability of adequate reliefs since no impending threat or injury to the
private respondents exists in the first place.

All told, in view of the absence of the fourth and fifth requisites for an action for declaratory
relief, as well as the irrelevance of the sixth requisite, private respondents petition for
declaratory relief should have been dismissed. Thus, by giving due course to the same, it
cannot be gainsaid that the RTC gravely abused its discretion.

WHEREFORE, the petition is GRANTED. Accordingly, the April23, 2012 and July 31, 2012
Orders of the Regional Trial Court of Quezon City, Branch 92 in SCA No. Q-07-60778 are
REVERSED and SET ASIDE and the petition for declaratory relief before the said court is
hereby DISMISSED.

SO ORDERED.

PROF. RANDOLF S. DAVID, G.R. No. 171396

LORENZO TAADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., Present:
JOEL RUIZ BUTUYAN, ROGER R.
RAYEL, GARY S. PANGANIBAN, C.J.,
*
MALLARI, ROMEL PUNO,
REGALADO BAGARES, QUISUMBING,
CHRISTOPHER F.C. BOLASTIG, YNARES-SANTIAGO,
Petitioners, SANDOVAL-
GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
GLORIA MACAPAGAL- CARPIO MORALES,
ARROYO, AS PRESIDENT CALLEJO, SR.,
AND COMMANDER-IN-CHIEF, AZCUNA,
EXECUTIVE SECRETARY EDUARDO TINGA,
ERMITA, HON. AVELINO CRUZ II, CHICO-NAZARIO,
SECRETARY OF NATIONAL GARCIA, and
DEFENSE, GENERAL GENEROSO VELASCO, JJ.
SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, Promulgated:
DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE May 3, 2006
NATIONAL POLICE,
Respondents.
x------------------------------------------------- G.R. No. 171409
x
NIEZ CACHO-OLIVARES AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,

- versus -
HONORABLE SECRETARY
EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO,
Respondents.
G.R. No. 171485
x-------------------------------------------------
x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO,
MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN,
JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN
MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO,
LORETTA ANN P. ROSALES, JOSEL
G. VIRADOR, RAFAEL V. MARIANO,
GILBERT C. REMULLA, FLORENCIO
G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA
C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,

- versus -

EDUARDO R. ERMITA, EXECUTIVE

SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V.
PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF G.R. No. 171483
PNP,
Respondents.
x-------------------------------------------------
x
KILUSANG MAYO UNO,
REPRESENTED BY ITS
CHAIRPERSON ELMER C. LABOG
AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA
P. DAPULANG, MARTIN CUSTODIO,
JR., AND ROQUE M. TAN,
Petitioners,

- versus -

HER EXCELLENCY, PRESIDENT

GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP G.R. No. 171400
DIRECTOR GENERAL, ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------
x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
 - versus -

EXECUTIVE SECRETARY EDUARDO G.R. No. 171489

R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------
x
JOSE ANSELMO I. CADIZ, FELICIANO
M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA
A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI,
J.B. JOVY C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA
AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners,

- versus -

HON. EXECUTIVE SECRETARY

EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS G.R. No. 171424
CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------
x
LOREN B. LEGARDA,
Petitioner,

- versus -
GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE
(PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.

x---------------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength the use of force cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus
most relevant. He said: In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Laws and
actions that restrict fundamental rights come to the courts with a heavy
presumption against their constitutional validity.[2]
 These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend
and preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?[3]

On February 24, 2006, as the nation celebrated the 20th Anniversary of

the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo,

President of the Republic of the Philippines and Commander-in-
Chief of the Armed Forces of the Philippines, by virtue of the
powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent
or suppress. . .rebellion. . ., and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

 WHEREAS, over these past months, elements in
the political opposition have conspired with authoritarians of
the extreme Left represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists the
historical enemies of the democratic Philippine State who
are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to

bring down the President;

WHEREAS, the claims of these elements have been

recklessly magnified by certain segments of the national
media;

WHEREAS, this series of actions is hurting the Philippine

State by obstructing governance including hindering the
growth of the economy and sabotaging the peoples
confidence in government and their faith in the future of this
country;

WHEREAS, these actions are adversely affecting the

economy;

WHEREAS, these activities give totalitarian forces of

both the extreme Left and extreme Right the opening to
intensify their avowed aims to bring down the democratic
Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution

makes the defense and preservation of the democratic institutions
and the State the primary duty of Government;

WHEREAS, the activities above-described, their

consequences, ramifications and collateral effects constitute
a clear and present danger to the safety and the integrity of the
Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP

1017, thus:
 WHEREAS, over these past months, elements in the
political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists - the historical enemies
of the democratic Philippine State and who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to
bring down our republican government;

WHEREAS, the claims of these elements have been

recklessly magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the

Philippine State by obstructing governance, including hindering
the growth of the economy and sabotaging the peoples
confidence in the government and their faith in the future of this
country;

WHEREAS, these actions are adversely affecting the

economy;

WHEREAS, these activities give totalitarian forces; of

both the extreme Left and extreme Right the opening to intensify
their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution

makes the defense and preservation of the democratic institutions
and the State the primary duty of Government;

WHEREAS, the activities above-described, their

consequences, ramifications and collateral effects constitute a
clear and present danger to the safety and the integrity of the
Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006

has been issued declaring a State of National Emergency;
 NOW, THEREFORE, I GLORIA MACAPAGAL-
ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief
of the PNP, as well as the officers and men of the AFP and
PNP, to immediately carry out the necessary and appropriate
actions and measures to suppress and prevent acts of
terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of

national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and

Section 17, Article XII of the Constitution, Proclamation No.
1017 dated February 24, 2006, was issued declaring a state of
national emergency;

WHEREAS, by virtue of General Order No.5 and No.6

dated February 24, 2006, which were issued on the basis of
Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed
to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of
rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively

prevented, suppressed and quelled the acts lawless violence and
rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-

ARROYO, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, hereby declare that
the state of national emergency has ceased to exist.
 In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New Peoples Army (NPA), and some members of the political opposition
in a plot to unseat or assassinate President Arroyo.[4] They considered the
aim to oust or assassinate the President and take-over the reigns of
government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor

General specified the facts leading to the issuance of PP 1017
and G.O. No. 5. Significantly, there was no refutation from
petitioners counsels.

The Solicitor General argued that the intent of the Constitution is to

give full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he explained that
it is not respondents task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for
the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza
and First Lieutenants Sonny Sarmiento, Lawrence San Juan and
Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude
arrest at all costs. They called upon the people to show and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by
going to the streets in protest, but also by wearing red bands on our left
arms. [5]

On February 17, 2006, the authorities got hold of a document entitled

Oplan Hackle I which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some cabinet
members and President Arroyo herself.[6] Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The next
day, at the height of the celebration, a bomb was found and detonated at the
PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist

safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National Peoples Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive documents.[7] Prior
to his arrest, Lt. San Juan announced through DZRH that the Magdalos
D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.

On February 23, 2006, PNP Chief Arturo Lomibao intercepted

information that members of the PNP- Special Action Force were planning
to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to disavow any defection. The latter promptly
obeyed and issued a public statement: All SAF units are under the
effective control of responsible and trustworthy officers with proven integrity
and unquestionable loyalty.

On the same day, at the house of former Congressman Peping

Cojuangco, President Cory Aquinos brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
groups plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Armys elite Scout Ranger. Lim said it was all
systems go for the planned movement against Arroyo.[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin

confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests to
be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-
in-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and

revolutionary work within the military and the police establishments in order
to forge alliances with its members and key officials. NPA spokesman
Gregorio Ka Roger Rosal declared: The Communist Party and
revolutionary movement and the entire people look forward to the possibility
in the coming year of accomplishing its immediate task of bringing down the
Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it.[9]

On the other hand, Cesar Renerio, spokesman for the National

Democratic Front (NDF) at North Central Mindanao, publicly announced:
Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the
field. He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the
groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication

towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.[10]
 By midnight of February 23, 2006, the President convened her
security advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation

of all programs and activities related to the 20 thanniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated that
political rallies, which to the Presidents mind were organized for purposes
of destabilization, are cancelled. Presidential Chief of Staff Michael
Defensor announced that warrantless arrests and take-over of facilities,
including media, can already be implemented.[11]

Undeterred by the announcements that rallies and public assemblies

would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and
scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen
broke up an EDSA celebration rally held along Ayala Avenue and Paseo de
Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017

as the ground for the dispersal of their assemblies.
 During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the University
of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives

of the Criminal Investigation and Detection Group (CIDG) of the PNP, on
the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business
offices of the newspaper; while policemen from the Manila Police District
were stationed outside the building.[13]

A few minutes after the search and seizure at the Daily

Tribune offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael

Defensor, is meant to show a strong presence, to tell media outlets not
to connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media
organization that would not follow standards set by the government during
the state of national emergency. Director General Lomibao stated that if
they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 we will recommend a
takeover. National Telecommunications Commissioner Ronald Solis
urged television and radio networks to cooperate with the government
for the duration of the state of national emergency. He asked
for balanced reporting from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage when the national security is
threatened.[14]
 Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltrans lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the
Marcos regime, had long been quashed. Beltran, however, is not a party in
any of these petitions.

When members of petitioner KMU went to Camp Crame to visit

Beltran, they were told they could not be admitted because of PP 1017 and
G.O. No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the

police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.

Retired Major General Ramon Montao, former head of the

Philippine Constabulary, was arrested while with his wife and golfmates at
the Orchard Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur

Ocampo, Representative Rafael Mariano, Bayan MunaRepresentative
Teodoro Casio and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of
Representatives where the Batasan 5 decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights
of Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that

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

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP

1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares

and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding
the Daily Tribune offices as a clear case of censorship or prior
restraint. They also claimed that the term emergency refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
absolutely no emergency that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis

Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute usurpation of legislative powers; violation of
freedom of expression and a declaration of martial law. They alleged
that President Arroyo gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the possibility of
lawless violence and a showing that there is necessity to do so.

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their

members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to
redress their grievances.
 In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of
Article III, (c)Section 23[19] of Article VI, and (d) Section 17[20] of Article
XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged

that PP 1017 is an arbitrary and unlawful exercise by the President of her
Martial Law powers. And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that it amounts to an
exercise by the President of emergency powers without congressional
approval. In addition, petitioners asserted that PP 1017 goes beyond the
nature and function of a proclamation as defined under the Revised
Administrative Code.

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda

maintained that PP 1017 and G.O. No. 5 are unconstitutional for being
violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of
public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution. In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.

In respondents Consolidated Comment, the Solicitor General

countered that: first, the petitions should be dismissed for
being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.)
and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary
for petitioners to implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not violate the
peoples right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
 A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the
petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et
al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal
standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual
bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are
unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this

country is the concept of judicial review enunciated in Marbury v.
Madison.[21] This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the

people, the ultimate source of all political authority. It confers
limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these
limitations there must be some authority competent to hold it
in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise.
This is the beginning and the end of the theory of judicial
review.[22]
 But the power of judicial review does not repose upon the courts a
self-starting capacity.[23] Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.[24]

Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an

opposite legal claims susceptible of judicial resolution. It is definite and
concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered moot and
academic by President Arroyos issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events,[26] so that a declaration thereon
would be of no practical use or value.[27] Generally, courts decline
jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyos issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8) days
that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These
are the vital issues that must be resolved in the present petitions. It must be
stressed that an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.[30]
 The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third, when constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet
evading review.[34]

All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the publics interest,
involving as they do the peoples basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given
by constitutional guarantees.[35] And lastly, respondents contested actions
are capable of repetition. Certainly, the petitions are subject to
judicial review.

In their attempt to prove the alleged mootness of this case,

respondents cited Chief Justice Artemio V. Panganibans Separate Opinion
in Sanlakas v. Executive Secretary.[36] However, they failed to take into
account the Chief Justices very statement that an otherwise moot case
may still be decided provided the party raising it in a proper case has been
and/or continues to be prejudiced or damaged as a direct result of its
issuance. The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the

Court deems it imperative to have a more than passing discussion on legal
standing or locus standi.
 Locus standi is defined as a right of appearance in a court of justice
on a given question.[37] In private suits, standing is governed by the real-
parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that every action must be
prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs
standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public

suits. Here, the plaintiff who asserts a public right in assailing an
allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other
person. He could be suing as a stranger, or in the category of a
citizen, or taxpayer. In either case, he has to adequately show that he
is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer.

Case law in most jurisdictions now allows both citizen and

taxpayer standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers
suit is in a different category from the plaintiff in a citizens suit. In the
former, the plaintiff is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v.
Collins:[40] In matter of mere public right, howeverthe people are
the real partiesIt is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.
 However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
direct injury test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest common
to all members of the public.

This Court adopted the direct injury test in our

[44]
jurisdiction. In People v. Vera, it held that the person who impugns the
validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers
Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement

of locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,[49] where the transcendental importance of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the
issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.[51]

Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of transcendental importance. Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,[52] where the
Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the
petitioner with locus standi;

(2) Bagong Alyansang Makabayan v.

[53]
Zamora, wherein the Court held that given the
transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties
seeking judicial review of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted

that the petitioners may not file suit in their capacity as
taxpayers absent a showing that Balikatan 02-01 involves
the exercise of Congress taxing or spending powers,
it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental
importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from

the cases decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement

of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the

validity of the election law in question;
 (4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and

(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the

Courts attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status

of Kilosbayan as a peoples organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury
it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines,

Inc. v. Comelec,[57] the Court reiterated the direct injury test with respect
to concerned citizens cases involving constitutional issues. It held that
there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.

In Lacson v. Perez,[58] the Court ruled that one of the

petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-
interest as it had not demonstrated any injury to itself or to its leaders,
members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the

petitioners who are members of Congress have standing to sue, as they claim
that the Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers.
As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them
with the LDP in Lacson.
 Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David

and Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
direct injury resulting from illegal arrest and unlawful search
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was

usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice
that those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners
in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v.
Philippine Amusement and Gaming Corporation,[63] and Taada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the
rights of their members.[65] We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national

officers of the Integrated Bar of the Philippines (IBP) have no legal standing,
having failed to allege any direct or potential injury which the IBP as an
institution or its members may suffer as a consequence of the issuance of PP
No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However,
in view of the transcendental importance of the issue, this Court declares that
petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer

to file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No.
5. Her claim that she is a media personality will not likewise aid her
because there was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.

It must always be borne in mind that the question of locus standi is

but corollary to the bigger question of proper exercise of judicial power.
This is the underlying legal tenet of the liberality doctrine on legal
standing. It cannot be doubted that the validity of PP No. 1017 and
G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine
society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the
transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.
 Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency,[67] may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such. Furthermore,
it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people[68]but he may be removed from office only in the mode provided
by law and that is by impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was

not necessary for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the
Presidents exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-
Padilla v. Enrile.[74] The tug-of-war always cuts across the line defining
political questions, particularly those questions in regard to which full
discretionary authority has been delegated to the legislative or executive
branch of the government.[75] Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen
belongs to the Presidentand 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,
[76]
constitutionally supreme. In 1973, the unanimous Court
[77]
of Lansang was divided in Aquino v. Enrile. 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
[78]
question. Then came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to re-examine the latter
case, ratiocinating that in times of war or national emergency, the
President must be given absolute control for the very life of the nation
and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case

most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the Presidents calling-out
power as a discretionary power solely vested in his wisdom, it stressed that
this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. This
ruling is mainly a result of the Courts reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in
an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are
authorized not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms
of power but also of duty.[82]

As to how the Court may inquire into the Presidents exercise of

power, Lansang adopted the test that judicial inquiry can go no
further than to satisfy the Court not that the Presidents decision
is correct, but that the President did not act arbitrarily. Thus, the
standard laid down is not correctness, but arbitrariness.[83] In Integrated Bar
of the Philippines, this Court further ruled that it is incumbent upon the
petitioner to show that the Presidents decision is totally bereft of
factual basis and that if he fails, by way of proof, to support his assertion,
then this Court cannot undertake an independent investigation beyond
the pleadings.

Petitioners failed to show that President Arroyos exercise of the

calling-out power, by issuing PP 1017, is totally bereft of factual basis. A
reading of the Solicitor Generals Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the
issuance of PP 1017, with supporting reports forming part of the
records. Mentioned are the escape of the Magdalo Group, their audacious
threat of the Magdalo D-Day, the defections in the military, particularly in
the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security
Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was

not expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However,
the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the

President in times of emergency. A glimpse at the various political theories
relating to this subject provides an adequate backdrop for our ensuing
discussion.

John Locke, describing the architecture of civil government, called

upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained
a prerogative power to act according to discretion for the public good,
without the proscription of the law and sometimes even against
it.[84] But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for
resorting to the prerogative and how may its abuse be avoided? Here,
Locke readily admitted defeat, suggesting that the people have no other
remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven.[85]

Jean-Jacques Rousseau also assumed the need for temporary

suspension of democratic processes of government in time of
emergency. According to him:
 The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong

as to render it impossible to suspend their operation. Even Sparta allowed
its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are
an obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the peoples first intention is that the State shall not
perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or

supreme magistracy as he termed it. For him, it would more likely be
cheapened by indiscreet use. He was unwilling to rely upon an appeal
to heaven. Instead, he relied upon a tenure of office of prescribed duration
to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative

government: I am far from condemning, in cases of extreme necessity,
the assumption of absolute power in the form of a temporary
dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in

the whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be

necessary to resort to extra constitutional measures; for although
they may for a time be beneficial, yet the precedent is pernicious,
for if the practice is once established for good objects, they will in
a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by
 law provided for everything, having a remedy for every
emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to

incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the

problem of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.[91] Frederick M.
Watkins saw no reason why absolutism should not be used as a means
for the defense of liberal institutions, provided it serves to protect
established institutions from the danger of permanent injury in a period
of temporary emergency and is followed by a prompt return to the
previous forms of political life.[92] He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in
characterFinal authority to determine the need for dictatorship in any
given case must never rest with the dictator himself[94] and the
objective of such an emergency dictatorship should be strict political
conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of

Watkins.[95] It is a problem of concentrating power in a government
where power has consciously been divided to cope with situations of
unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end.[96] Friedrich, too, offered
criteria for judging the adequacy of any of scheme of emergency powers, to
wit: The emergency executive must be appointed by constitutional
means i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of

emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of constitutional
dictatorship as solution to the vexing problems presented by
emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions
of success of the constitutional dictatorship, thus:

1) No general regime or particular institution of

constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the
State and its constitutional order

2) the decision to institute a constitutional

dictatorship should never be in the hands of the man or men
who will constitute the dictator

3) No government should initiate a constitutional

dictatorship without making specific provisions for its
termination

4) all uses of emergency powers and all

readjustments in the organization of the government should
be effected in pursuit of constitutional or legal
requirements

5) no dictatorial institution should be adopted, no

right invaded, no regular procedure altered any more than is
 absolutely necessary for the conquest of the particular crisis
...

6) The measures adopted in the prosecution of the a

constitutional dictatorship should never be permanent in
character or effect

7) The dictatorship should be carried on by persons

representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for

every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional

dictatorship, like the decision to institute one should never
be in the hands of the man or men who constitute the
dictator. . .

10) No constitutional dictatorship should extend

beyond the termination of the crisis for which it was
instituted

11) the termination of the crisis must be followed

by a complete return as possible to the political and
governmental conditions existing prior to the initiation of
the constitutional dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of

emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency,
and he places great faith in the effectiveness of congressional investigating
committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light
of recent experience, were one in saying that, the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory. To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term dictator is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers. However used,
constitutional dictatorship cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead
the concept of constitutionalism articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in

the analysis of problems of emergency powers, and which is
consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive
powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government.
And in discussing the meaning of constitutionalism, he insisted
that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental
power. He found that the really effective checks on despotism
have consisted not in the weakening of government but, but rather
in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism with
limited as distinguished from weak government,
McIlwain meant government limited to the orderly procedure
of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of
government to the governed.[101]

In the final analysis, the various approaches to emergency of the

above political theorists - from Locks theory of prerogative, to
Watkins doctrine of constitutional dictatorship and, eventually, to
McIlwains principle of constitutionalism --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that
such powers will be exercised with a sense of political responsibility and
under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission, in
drafting the 1987 Constitution, endeavored to create a government in the
concept of Justice Jacksons balanced power structure.[102] Executive,
legislative, and judicial powers are dispersed to the President, the Congress,
and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or check
upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In
other words, in times of emergency, our Constitution reasonably demands
that we repose a certain amount of faith in the basic integrity and wisdom of
the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its

overbreadth. They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a chilling effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is

uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool

developed for testing on their faces statutes in free speech cases, also
known under the American Law as First Amendment cases.[103]
 A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the AFP to
prevent or suppress all forms of lawless violence. In United States v.
Salerno,[104] the US Supreme Court held that we have not recognized an
overbreadth doctrine outside the limited context of the First
Amendment (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the

validity of a law that reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected conduct.
Undoubtedly, lawless violence, insurrection and rebellion are considered
harmful and constitutionally unprotected conduct. In Broadrick v.
Oklahoma,[105] it was held:

It remains a matter of no little difficulty to determine

when a law may properly be held void on its face and when such
summary action is inappropriate. But the plain import of our
cases is, at the very least, that facial overbreadth adjudication
is an exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving

statutes which, by their terms, seek to regulate only spoken words and
again, that overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct.[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.
 Second, facial invalidation of laws is considered as manifestly
strong medicine, to be used sparingly and only as a last resort,
and is generally disfavored;[107] The reason for this is obvious.
Embedded in the traditional rules governing constitutional adjudication is
the principle that a person to whom a law may be applied will not be heard
to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the
Court.[108] A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth

technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to
him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute on its face, not merely as
applied for so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the chilling; deterrent effect of the
overbroad statute on third parties not courageous enough to bring
suit. The Court assumes that an overbroad laws very existence
may cause others not before the court to refrain from
constitutionally protected speech or expression. An overbreadth
ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will

require the Court to examine PP 1017 and pinpoint its flaws and defects, not
on the basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:

[T]he task of analyzing a proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task
for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever
way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most

difficult challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness

doctrine which holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application.[110] It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing on their
faces statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and
application of PP 1017.

b. Constitutional Basis of PP 1017

 Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important

provisions, thus:

First provision:

by virtue of the power vested upon me by Section 18,

Artilce VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion

Second provision:

and to enforce obedience to all the laws and to all

decrees, orders and regulations promulgated by me personally
or upon my direction;

Third provision:

as provided in Section 17, Article XII of the

Constitution do hereby declare a State of National
Emergency.

First Provision: Calling-out Power

 The first provision pertains to the Presidents calling-out power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante
O. Tinga, held that Section 18, Article VII of the Constitution reproduced as
follows:

Sec. 18. The President shall be the Commander-in-Chief of

all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or
in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.

The Congress, if not in session, shall within twenty-four

hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed

by any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.

A state of martial law does not suspend the operation of

the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the privilege of the
writ.
 The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any

person thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.

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

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

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

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

Presidents authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President
Arroyos authority to declare a state of rebellion emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:

SEC. 4. Proclamations. Acts of the President

fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend,
shall be promulgated in proclamations which shall have the
force of an executive order.

President Arroyos declaration of a state of rebellion was merely

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

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

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

The declaration of Martial Law is a warn[ing] to citizens that the

military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in
any way render more difficult the restoration of order and the enforcement of
law.[113]
 In his Statement before the Senate Committee on Justice on March
13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional
law, said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is placed in
the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the privilege of the
writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial

Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a

declaration of Martial Law. It is merely an exercise of President
Arroyos calling-out power for the armed forces to assist her in preventing
or suppressing lawless violence.
Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure

that the laws be faithfully executed. This is based on Section 17, Article VII
which reads:

SEC. 17. The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.

As the Executive in whom the executive power is vested,[115] the

primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that all
laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, execute its
laws.[116] In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all
the armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero,

Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon President
Arroyo the power to enact laws and decrees in violation of Section 1, Article
VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally
or upon my direction.

\
 Petitioners contention is understandable. A reading of PP 1017
operative clause shows that it was lifted[120] from Former President Marcos
Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS,

President of the Philippines by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of the Constitution,
do hereby place the entire Philippines as defined in Article 1,
Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my
direction.

We all know that it was PP 1081 which granted President Marcos

legislative power. Its enabling clause states: to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction. Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to alldecrees, orders and regulations promulgated by me
personally or upon my direction.

Is it within the domain of President Arroyo to promulgate

decrees?

PP 1017 states in
part: to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book

III of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:
 Sec. 2. Executive Orders. Acts of the President
providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers
shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President
which relate to particular aspect of governmental operations in
pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a
date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on
matters of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the President
desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands
of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be issued as general or
special orders.

President Arroyos ordinance power is limited to the foregoing

issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are
of the same category and binding force as statutes because they were issued
by the President in the exercise of his legislative power during the period of
Martial Law under the 1973 Constitution.[121]
 This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to promulgate
decrees. Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that [t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyos exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws

through the military?

As this Court stated earlier, President Arroyo has no authority to enact

decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws

and to all decrees, orders, and regulations
promulgated by me personally or upon my
direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state
of national emergency.
 The import of this provision is that President Arroyo, during the state
of national emergency under PP 1017, can call the military not only to
enforce obedience to all the laws and to all decrees x x x but also to act
pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public

interest so requires, the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or
business affected with public interest.

What could be the reason of President Arroyo in invoking the above

provision when she issued PP 1017?

The answer is simple. During the existence of the state of national

emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a

product of the martial law thinking of the 1971 Constitutional
Convention.[122] In effect at the time of its approval was President Marcos
Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over the management, control and
operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency.

Petitioners, particularly the members of the House of Representatives,

claim that President Arroyos inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislatures emergency powers.
 This is an area that needs delineation.

A distinction must be drawn between the Presidents authority

to declare a state of national emergency and toexercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both

Houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the

Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment
thereof.

It may be pointed out that the second paragraph of the above provision
refers not only to war but also to other national emergency. If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a state of national emergency pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could
have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a state of national
emergency. The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.
 But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari

materia are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same subject
matter will be construed together and considered in the light of each
other.[123] Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be
read together to determine the limitation of the exercise of emergency
powers.

Generally, Congress is the repository of emergency powers. This

is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies, it
may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as

the Congress may prescribe.
(4) The emergency powers must be exercised to carry out
a national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the

emergency powers clause. The taking over of private business affected with
public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the the State
may, during the emergency and under reasonable terms prescribed by
it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest, it refers to
Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to
him pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,[125]held:

It is clear that if the President had authority to issue the

order he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his
powers under the Constitution. Particular reliance is placed on
provisions in Article II which say that The executive Power
shall be vested in a President . . . .; that he shall take Care that
the Laws be faithfully executed; and that he shall be
Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the

Presidents military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not
concern us here. Even though theater of war be an
expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes
from stopping production. This is a job for the nations
lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the

several constitutional provisions that grant executive power to
the President. In the framework of our Constitution, the
Presidents power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution
limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws
he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to
 execute. The first section of the first article says that All
legislative Powers herein granted shall be vested in a Congress
of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency

under Section 17, Article XII refers to tsunami,
typhoon, hurricane and similar occurrences. This is a limited
view of emergency.

Emergency, as a generic term, connotes the existence of conditions

suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have
been occasioned by a wide range of situations, classifiable under three (3)
principal heads: a) economic,[128] b) natural disaster,[129] and c)national
security.[130]

Emergency, as contemplated in our Constitution, is of the same

breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.[131] This is evident in the Records of the Constitutional Commission,
thus:

MR. GASCON. Yes. What is the Committees definition of

national emergency which appears in Section 13, page 5? It
reads:

When the common good so requires, the State may temporarily

take over or direct the operation of any privately owned public
utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external

aggression, for example, calamities or natural disasters.
 MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by

the term national emergency.

MR. BENGZON. Unless they are of such proportions such

that they would paralyze government service.[132]

x x x x x
x

MR. TINGSON. May I ask the committee if national

emergency refers to military national emergency or could this
be economic emergency?

MR. VILLEGAS. Yes, it could refer to both military or

economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may

not be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative

power, through which extraordinary measures are exercised, remains in
Congress even in times of crisis.

x x x

After all the criticisms that have been made against

the efficiency of the system of the separation of powers, the
fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or
group of men. The Filipino people by adopting
parliamentary government have given notice that they share
the faith of other democracy-loving peoples in this system,
 with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for
Congress all the time, not excepting periods of crisis no
matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another
department unless we regard as legislating the carrying
out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme
perils more than in normal circumstances the various
branches, executive, legislative, and judicial, given the
ability to act, are called upon to perform the duties and
discharge the responsibilities committed to them
respectively.

Following our interpretation of Section 17, Article XII, invoked by

President Arroyo in issuing PP 1017, this Court rules that such Proclamation
does not authorize her during the emergency to temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare

a state of national emergency, however, without legislation, he has
no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-
owned public utility or business affected with public interest. Nor can
he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken
over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.
 c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which

pertains to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against warrantless
arrest;and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on

February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20th Anniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares

and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the
CIDG operatives raided and ransacked without warrant their
office. Three policemen were assigned to guard their office as a possible
source of destabilization. Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et

al. alleged that their members were turned away and dispersed when they
went to EDSA and later, to Ayala Avenue, to celebrate the 20 th Anniversary
of People Power I.

A perusal of the direct injuries allegedly suffered by the said

petitioners shows that they resulted from the implementation, pursuant to
G.O. No. 5, of PP 1017.
 Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5
on the basis of these illegal acts? In general, does the illegal implementation
of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused[135] and may afford
an opportunity for abuse in the manner of application.[136] The validity
of a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a
particular case.[137] PP 1017 is merely an invocation of the Presidents
calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the
end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on

the ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.[138] This is logical. Just imagine
the absurdity of situations when laws maybe declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were
so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and 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.

In fact, this definitional predicament or the absence of an agreed

definition of terrorism confronts not only our country, but the
international
community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the

fight against terrorism has become one of the basic slogans
when it comes to the justification of the use of force against
certain states and against groups operating internationally. Lists
of states sponsoring terrorism and of terrorist organizations are
set up and constantly being updated according to criteria that are
not always known to the public, but are clearly determined by
strategic interests.

The basic problem underlying all these military actions

or threats of the use of force as the most recent by the United
States against Iraq consists in the absence of an agreed
definition of terrorism.
 Remarkable confusion persists in regard to the legal
categorization of acts of violence either by states, by armed
groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying One

countrys terrorist is another countrys freedom fighter. The
apparent contradiction or lack of consistency in the use of the term
terrorism may further be demonstrated by the historical fact
that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally
labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts

the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations

Organization has been trying in vain to reach a consensus on the
basic issue of definition. The organization has intensified its
efforts recently, but has been unable to bridge the gap between
those who associate terrorism with any violent act by non-state
groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups
within a state is concerned.

The dilemma facing the international community can best

be illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India,
liberation fighters in that of Pakistan the earlier Contras in
Nicaragua freedom fighters for the United States, terrorists for
the Socialist camp or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War
period they were a group of freedom fighters for the West,
nurtured by the United States, and a terrorist gang for the Soviet
 Union. One could go on and on in enumerating examples of
conflicting categorizations that cannot be reconciled in any way
because of opposing political interests that are at the roots of those
perceptions.

How, then, can those contradicting definitions and

conflicting perceptions and evaluations of one and the same group
and its actions be explained? In our analysis, the basic reason for
these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an
occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of terrorism
will fluctuate accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory
and will therefore speak of a liberation struggle, not of
terrorism when acts of violence by this group are concerned,
and vice-versa.

The United Nations Organization has been unable to reach

a decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state
actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A policy of double standards on this vital issue of
international affairs has been the unavoidable consequence.

This definitional predicament of an organization

consisting of sovereign states and not of peoples, in spite of the
emphasis in the Preamble to the United Nations Charter! has
become even more serious in the present global power
constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well
as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of
11 September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse

and oppression on the part of the police or military. An illustration is when
a group of persons are merely engaged in a drinking spree. Yet the military
or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression
on their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations. The word terrorism is
mentioned in the following provision: That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define acts of
terrorism. Since there is no law defining acts of terrorism, it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the
media enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the acts of terrorism portion
of G.O. No. 5 is unconstitutional.
 Significantly, there is nothing in G.O. No. 5 authorizing the military
or police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured

in their persons, houses, papers and effects against unreasonable search and
seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.[142] The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with power
to issue or refuse to issue search warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts

are established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by
policemen who held his head and tried to push him inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa
Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained
for seven (7) hours; and seventh, he was eventually released for
insufficiency of evidence.
 Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:

Sec. 5. Arrest without warrant; when lawful. - A

peace officer or a private person may, without a warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to
commit an offense.

(b) When an offense has just been committed and he

has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has
committed it; and

x x 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,[148] it was held that peaceable assembly cannot be made a crime,
thus:

Peaceable assembly for lawful discussion cannot be made a

crime. The holding of meetings for peaceable political action
cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly are not
to be preserved, is not as to the auspices under which the meeting
was held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed
or are engaged in a conspiracy against the public peace and order,
they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead
of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public
discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al.(G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaangs directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that freedom of
assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right
to prevent.[149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that the
State may deny the citizens right to exercise it. Indeed, respondents failed
to show or convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and

rallies is lodged with the local government units. They have the power to
issue permits and to revoke such permits after due notice and hearing on
the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a persons right is
restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of

freedom of speech i.e., the freedom of the press. Petitioners narration of
facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribunesoffices were searched without
warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.

Thereafter, a wave of warning came from government officials.

Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was meant to show a strong presence, to tell media outlets not
to connive or do anything that would help the rebels in bringing down
this government. Director General Lomibao further stated that if they
do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 we will
recommend a takeover. National Telecommunications Commissioner
Ronald Solis urged television and radio networks to cooperate with the
government for the duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal

Procedure lays down the steps in the conduct of search and seizure. Section
4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter,
in the presence of two (2) witnesses of sufficient age and discretion residing
in the same locality. And Section 9 states that the warrant must direct that
it be served in the daytime, unless the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that
it be served at any time of the day or night. All these rules were violated by
the CIDG operatives.

Not only that, the search violated petitioners freedom of the

press. The best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court
held that --

As heretofore stated, the premises searched were the

business and printing offices of the "Metropolitan Mail" and the
"We Forum newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the
further result that the printing and publication of said
newspapers were discontinued.
 Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press guaranteed
under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed
like the Metropolitan Mail and We Forum newspapers in the above
case, yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and
the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who
tells the citizen that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of punishment should he be
so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was
subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our
citizens. Freedom to comment on public affairs is essential to the vitality of
a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted

that the search of the Tribunes offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
for any purpose, thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission

when you said that the policemen, when
inspected the Tribune for the purpose of
 gathering evidence and you admitted that the
policemen were able to get the clippings. Is
that not in admission of the admissibility of
these clippings that were taken from the
Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they

were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any
purpose.[155]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues

of the Daily Tribune; all you have to do is to
get those past issues. So why do you have to
go there at 1 oclock in the morning and
without any search warrant? Did they become
suddenly part of the evidence of rebellion or
inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your

Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman

is illegal, it is not based on any law, and it is
not based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your

Honor, because there is nothing in 1017 which
says that the police could go and inspect and
 gather clippings from Daily Tribune or any
other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the

facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis

whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is

why I said, I dont know if it is premature to
say this, we do not condone this. If the
people who have been injured by this
would want to sue them, they can sue and
there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police

were, according to the Solicitor General, illegal and cannot be condoned,
thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not

contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

 I dont know whether this will clarify. The
acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as
you said, a misapplication of the law. These are acts
of the police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and should result in no constitutional or
statutory breaches if applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens rights
under the Constitution, this Court has to declare such acts unconstitutional
and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring

opinion, attached hereto, is considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a

supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed if the May 1 rallies become unruly and
violent. Consequently, the transcendental issues raised by the parties
should not be evaded; they must now be resolved to prevent future
constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as

it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017s extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected
with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President acting as Commander-in-Chief addressed to
subalterns in the AFP to carry out the provisions of PP 1017. Significantly,
it also provides a valid standard that the military and the police should
take only the necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. But the words acts of
terrorism found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said
G.O. While terrorism has been denounced generally in media, no law
has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFPs authority in carrying out this portion of
G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is

also pristine clear that (1) the warrantless arrest of petitioners Randolf S.
David and Ronald Llamas; (2) the dispersal of the rallies and warrantless
arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.

It is well to remember that military power is a means to an end

and substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be
arbitrary as to unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is possible to
grant government the authority to cope with crises without surrendering the
two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.[158]
 WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section
17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior
legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by

which the AFP and the PNP should implement PP 1017, i.e. whatever is
necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence. Considering that acts of terrorism
have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the

dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.