Clash of Societal Rights

3/26/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 137
660 SUPREME COURT REPORTS ANNOTATED

Clash of Societal Rights
ANNOTATION
CLASH OF SOCIETAL RIGHTS

By *
MANUEL M. LAZARO
§ 1. The paradox of democracy. The deceit of

communism, p. 661
§ 2. Democracy breeds communism, p. 662
§ 3. Covenant of defense, p. 663
§ 4. The right of the State to survive at times clash
with the individual freedom of a few, p. 663
§ 5. Individual rights must be accorded respect
unless used to destroy the State, p. 665
§ 6. Police Power, p. 667
§ 7. Defense Mechanism, p. 667
§ 8. Reason of State, p. 668
§ 9. The President is the prime defender of the
State, p. 669
§ 10. Security of the State is uncomprising, p. 670
———————
The French philosopher Rousseau once warned the grave

danger of non-involvement in matters affecting the very life
of the State. He said: “As soon as any man says of the
affairs of the State ‘What does it matter to me?’ the State
may be given
________________
* Presidential Assistant for Legal Affairs and Government Corporate

Counsel, former Note Editor of Ateneo Law Journal.
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VOL. 137, JULY 19, 1985 661

up for lost.” (Jean Jacques Rousseau, The Social Contract,

Book III).
Democracy is in peril today. The Communist ersatz of
insurgency poses a constant threat. Newspapers banner
daily NPA depredations: pillaging towns, smothering lives
and causing destruction to properties. The irony of it all is
that some people are indifferent to these disturbing reports.
For them, the problem is distant, hazy or simply irrelevant.
Many have a nonchalant stance of “que sera sera.” This is
aggravated by the perfidious attitude of some in that
whenever the Government takes exigent steps to combat
the highly sophisticated and subtle moves of the enemies of
the State, they denounce the countermeasures as
incursions into the human rights, or infringement of the
Bill of Rights. As a result, Government is being pushed into
a no-win posture-a Catch-22 situation—being damned if it
does act, and damned if it doesn’t. This is the tragedy of
governance—it is also the source of its vigor.
The first task of Government is setting up order. The
first basis of order is justice. The first guardian of justice is
fairness. In sum, a free society can not govern with serenity
under the constant threats of insurrections by the brokers
of treason.
§ 1. The paradox of democracy. The deceit of

communism
Democracy is a paradox of our time. In his book entitled

“How Democracies Perish,” the French writer, Jean
Francois-Revel, laments that democracy “is not basically
structured to defend itself against outside enemies seeking
its annihilation” (Jean Francois-Revel, How Democracies
Perish, transl. from French by William Byron, New York:
Doubleday & Co., Inc., 1983, p. 3). Revel unfolds that
communism “parades as democracy perfected when it is in
fact the absolute negation of democracy.” He expounds that
“democracy is by its very nature turned inward” as its
“vocation is the patient and realistic improvement of life in
the community.” By contrast, Revel unmasks communism
as “necessarily looking outward because it is a failed
society and is incapable of engendering a viable one.”
(Ibid.)
662

Sharply drawing the line between democracy and

communism, he poignantly writes:
“Communism is more skillful, more persevering than democracy

in defending itself. Democracy tends to ignore, even deny, threats
to its existence because it loathes doing what’s needed to counter
them. It awakens only when the danger becomes deadly,
imminent, evident. By then, either there is too little time left for it
to save itself, or the price of survival has become crushingly high.”
(Revel, p. 4)
Revel believes that in communism “democracy faces an

internal enemy whose right to exist is written into the law
itself,” and “democracy can defend itself only very feebly.”
He adds that communism “exploits the right to disagree
that is inherent in democracy.” (Ibid.) Democracy and
communism can not endure together. Their ideologies are
irreconcilable. And in the conflict, one or the other must
perish.
§ 2. Democracy breeds communism
The breeding ground for communism is unwittingly laid

out by the democratic system itself. Communism is able to
grow within the shelter of democracy. It flourishes and
prospers under the political freedom that democracy
guarantees. The Communists and insurgents use, subtly
and conveniently, the very Bill of Rights they would
destroy in the end. The ideology, democracy, may confront
the ideology, communism, only with peaceful means, within
the umbrella that the Bill of Rights guarantees to all
political beliefs.
On the other hand, Communism often resorts to overt
acts of violence and destruction. It employs high-powered
propaganda; It adopts penetrating indoctrination
techniques. In spreading its wings, communism
masquerades itself as the ultimate in democracy. It is
attractive and transfusive under the aegis and atmosphere
of the democratic system. Ironically, the ethics of
democracy themselves easily create the climate for
communism’s survival. It is a lot easier and cheaper to
destroy democracy than it is to build and sustain it.”
663
VOL. 137, JULY 19, 1985 663

§ 3. Covenant of Defense
The task of defending the state is a sacral duty of

government and its citizens. This is a covenant. This
covenant is enshrined in our fundamental law, thus: “The
defense of the State is a prime duty of the Government and
the people * * *.” (Section 2, Article II, 1973 Constitution).
On the part of the people, this covenant is reinforced in
another article on the Duties and Obligations of Citizens.
Section 1, Article V of the 1973 Constitution, among others,
commands every Filipino citizen to defend the State. On
the part of the Government, the covenant is buttressed by
the constitutional powers and prerogatives reposed in the
President as Head of State and Chief Executive. Given this
covenant, whatever measures Government may take to
protect the security of the State should generate support
rather than evoke criticism from the people. Else the ripple
of insurgency may become a tidal wave that will engulf and
drown all of us.
§ 4. The right of the State to survive at times clash

with the individual freedom of a few
It is axiomatic that the state has the right to survive. As

Rosseau observed: “The people’s first intention is that the
State shall not perish.” While the Constitution guarantees
citizens their individual rights and liberties, such freedom
is not unqualified. When the survival of the State clashes
with the rights of a few who seek to destroy the nation and
endanger the safety of the people, their individual freedoms
must be restrained. Individual freedom must yield to the
larger interest when they undermine the security of the
State. These rights may, at times, be subordinated to the
State’s paramount right to survive. In this clash of societal
interests, of a group working to cripple the Government
against the societal interest to preserve the security of the
State and the safety of the people, the latter must have
ascendancy. It is not a clash between right and wrong, but
a conflict between a superior right and a qualified right.
For there can be no rights to exercise and protect without a
State or a Government. Anarchy is not liberty and liberty is
not libertinism.
664

The efficacy of the Constitution springs from the potency

and vitality of the State. The strength of the Constitution
depends on the stability of the State. You defend the State
and you preserve the Constitution. You destroy the State
and you crush the Constitution. The Constitution perishes
with the State. The Constitution, it bears restating,
presupposes the existence of the Philippine Government. If
the Philippine Government is overthrown by the subversive
elements, then of what good is the Constitution?
When President Lincoln opted to proclaim martial law
and suspend the privilege of the writ of habeas corpus, he
eloquently reasoned out in a forceful prose:
“Was it possible to lose the nation and you preserve the

Constitution? By general law, life and limb must be protected, yet
often a limb must be amputated to save a life; but a life is never
wisely given to save a limb. I felt that measures, otherwise
unconstitutional, might become lawful by becoming indispensable
to the preservation of the Constitution through the preservation
of the nation.” (2 Nicholas and Hay, Abraham Lincoln Complete
Works, 508 [1802]).
Mr. Justice Pacifico de Castro in upholding the President’s

power to issue Presidential Commitment Orders to defend
the State, impressively and evocatively argued:
“x x x. But certainly, the exercise of such power of defending the

Nation is not to be subordinated to that of the Supreme Court
acting as Guardian of the Constitution, for of what use is it to
preserve the Constitution if We lose the Nation?”(Morales, Jr. vs.
Enrile, 121 SCRA 538)
There is no inconsistency between defending the State and

protecting the Constitution. When one defends the nation,
one also preserves and protects the individual liberties that
may perish if one loses the nation.
Trafficking with the brokers of treason is outside the
corridors of the Bill of Rights. Advocates of the violent
overthrow of the government are beyond the pale of the
Constitution.
The rights of a few who jeopardize the existence of the
State cannot prevail over the rights of the overwhelming
majority
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VOL. 137, JULY 19, 1985 665

entitled to a secured and stable State. It is for this majority

that the State owes its duty to defend itself.
§ 5. Individual rights must be accorded respect

unless used to destroy the State
In a crisis, “the danger to the security of the nation and its

institutions is so great that the government must take
measures that temporarily deprive citizens of certain rights
in order to ensure the survival of the political structure
that protects those and other rights during ordinary times.”
(“Developments—National Security.” Vol. 85, Harvard Law
Review, March 1972, No. 5, p. 1286). One must emphasize,
however, that protecting the State, it must never be an
occasion to abuse or disregard individual liberties not
necessary or required to secure the existence of the State.
Government functionaries should not trample individual
rights in the guise of defending the State. Individual
freedoms must always be accorded the highest respect
unless by doing so we endanger the very existence of the
State or sacrifice the safety of the people. Individual rights
must reign supreme provided that they are not employed as
a means to destroy the State.
Individual liberties must be consistent with the
commonweal. They must not be employed to extirpate the
State. Individual freedoms can not be the shield behind
which assaults are launched to destabilize the
Government. They can not be rationally employed as
bayonets to terrorize the existence of Government. The Bill
of Rights was not designed to protect individuals who wish
to cripple the Government.
Government does not resent the embroidery of dissent.
It only opposes the use of force and violence for political
change.
The Constitution recognizes the forces of liberty.
However, it does not surrender its will to the conduct and
methods of libertinism.
Thus, Justice Felix Makasiar in his epigrammatic prose
said:
“When there is an inevitable clash between exertion of

governmental authority and the assertion of individual freedom,
the exercise
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of which freedom imperils the State and the civilized society to

which the individual belongs, there can be no alternative but to
submit to the superior right of the government to defend and
preserve the State.” (Javellana vs. The Executive Secretary, et al.,
L-36142 and companion cases, March 31, 1973, Makasiar, J.,
Separate Opinion, p. 707)
Echoing the right and duty of the State to restrict

individual rights when they imperil the existence of the
State, Chief Justice Roberto Concepcion, in lucid and
incisive language, said:
“(T)he liberty guaranteed and protected by our Basic Law is one

enjoyed and exercised, not in derogation thereof but consistently
therewith, and, hence, within the framework of the social order
established by the Constitution and the context of the Rule of Law.
Accordingly, when individual freedom is used to destroy that
social order, by means of force and violence, in defiance of the
Rule of Law—such as by rising publicly and taking arms against
the government to overthrow the same, thereby committing the
crime of rebellion—there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned guarantee or
protection . . .” (Lansang vs. Garcia, 42 SCRA 448; italics ours).
The State like the individual, has a right to self-defense. In

the succinct words of Dryden, “self-defense is nature’s
eldest law.” (John Dryden, Absalom and Architophel I).
This is a transmutation of Emperor Justinian’s dictum:
“The safety of the State is the highest law.” (Justinian
Twelve Tables). The crimes of rebellion, subversion or
proposal) to commit such crimes, and crimes or offenses
committed in furtherance thereof or in connection
therewith, constitute direct attacks on the life of the State
(Morales, Jr. vs. Enrile/Moncupa, Jr. vs. Ponce Enrile, G.R.
No. 61016 and 61107, April 26, 1983). These crimes subvert
our political, social and economic order. It is the inherent
right of the State and the people to defend themselves
against any form of threat or peril to their very existence.
(Vide: PCO: The People’s Weapon of Self-Defense) The
right to defend includes the availment of all the necessary
means to enforce or protect such right. A State in case of
insurrection of a number of its inhabitants has inherently
the right
667
VOL. 137, JULY 19, 1985 667

to use all means necessary to put down the resistance to its

authority and restore peace, order and obedience to law.”
(White vs. Hart, 20 L. ed. 685).
§ 6. Police Power
Traditionally, the rights of the State are grouped under

three basic powers: eminent domain, taxation, and police
power. These are the essential attributes of sovereignty.
Among these State powers, police power is not expressly
provided for in the Constitution. Why this is so is not at all
surprising. To paraphrase Chief Justice Enrique M.
Fernando, police power is inherent in the very concept of
the State and is a manifestation of the exercise of sovereign
rights. (Enrique M. Fernando, The Constitution of the
Philippines, 2nd Ed., 1977, p. 514).
“Police power” has been referred to as the State’s authority to

interfere with personal liberty or property to promote general
welfare. Persons and property may thus be subjected to certain
restraints and burdens, to secure the safety and prosperity of the
State (Edu vs. Ericta, 35 SCRA 481, citing Calalang vs. Williams,
70 Phil. 726; Primicias vs. Fugoso, 80 Phil. 71).
As negatively put by Justice Malcolm, police power is “the

inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare
of the society.” Borrowing from Chief Justice Fernando
once more, it is “the most essential and least illimitable of
powers extending to what Justice Holmes refers as all the
great public needs.” (Morfe vs. Mutuc, 22 SCRA 424).
Accordingly, the rights of citizens, as guaranteed in the
Bill of Rights, are not unfettered. They are subservient to
the police power of the State.
§ 7. Defense Mechanism
Recognizing the right of the State to defend itself, our

Constitution designed defense mechanisms to protect the
State against threats to its existence, security or stability.
668
These are: (1) the President’s delegated emergency power

under Section 14, Article VII of the 1973 Constitution; (2)
the President’s power to call out the Armed Forces to
prevent or suppress lawless violence, invasion,
insurrection, rebellion or imminent danger of them; (3) the
President’s power to suspend the privilege of the writ of
habeas corpus, when public safety requires it in cases of
invasion, insurrection or imminent danger of them; and (4)
the President’s power to place the country or any part of it
under martial law.
The last three powers are consolidated under the
“Commander-in-Chief” clause (See Sec. 12, Article IX, 1973
Constitution, as amended). To use an apt statement by an
American writer, “The President’s duty (as Commander-in-
Chief) is that of national survival.” (See Arthur S. Miller,
Presidential Power In A Nutshell, St. Paul Minn: West
Publishing Co., 1977, p. 168).
The fifth measure is Amendment No. 6. It empowers the
President to issue decrees when “there exists a grave
emergency or a threat or imminence thereof,” or whenever
the legislature “is unable to act adequately on any matter
for any reason that in his (the President’s) judgment
requires immediate action.” (Legaspi vs. Minister of
Finance, 115 SCRA 418).
Amendment No. 6 is a calibrated response to emerging
problems that threaten the existence of the State and the
security of the people. It is anchored on the police power of
the State to arrest the exacerbation of an emergency. For,
the existence of emergency furnishes the propitious time
and the proper occasion for the exercise of the reserved
power of the State to protect the vital interests of the
community (Vide Home Building & Loan Association v.
Blaisdell [1934] 290 U.S. 398, 78 L. Ed. 413).
§ 8. Reason of State
The President’s duty to maintain national survival flows

from the theory of raison d’etat, or reason of State. As
defined by Friedrich: “Reason of State is nothing but the
doctrine that whatever is required to insure the survival of
the State must
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VOL. 137, JULY 19, 1985 669
be done by the individuals responsible for it, no matter how

repugnant such an act may be to them in their private
capacity as decent and moral men.” (C. Friedrich,
Constitutional Reason of State: The Survival of the
Constitutional Order, 4-5, 1957, cited in Miller, op. cit., p.
200).
Another exponent of the concept of “reason of State,”
Meinecke, considers it as “the fundamental principle of
national conduct, the State’s first law of motion.” He
elaborates: “The State is an organic structure whose full
powers can only be maintained by allowing it in some way
to continue growing; and raison d’etat indicates both the
path and the goal for such a growth.” (F. Meinecke:
Machiavellism: “The Doctrine of Raison D’Etat and its
Place in Modern History,” (D. Scott Trans. also cited in
Miller, op. cit., p. 201).
§ 9. The President is the prime defender of the State
The framers of the Constitution entrusted to the executive

branch the responsibility of adopting measures to protect
the existence of the State. There is no one else, personally
or institutionally, who can respond promptly and efficiently
to the need. The ordinary course of proceedings would be
utterly unfit for the crisis. (See: Luther vs. Borden, 7 How.
1, 12 L. ed. 581). For “the question of necessity cannot be
burked.” (See A. Schlesinger Jr., The Imperial Presidency
323 [1974]). The Executive has certain built-in advantages
over the two other branches, particularly when the life of
the nation is at stake.
It was Jose P. Laurel, as a delegate to the 1935
Constitutional Convention, who remarked that the
President occupies “The vantage ground as the ready
protector and defender of the life and honor of his nation.”
(The Philippine Constitution, published by the Philippine
Lawyers’ Association, Vol. 1, 1969 ed., p. 183). The
President cannot vacillate when he faces danger that
involves the security of the State. He must act promptly,
decisively, and forcefully. In a crisis, the action—to take
heed of Chief Justice Taney’s admonition—must be
“prompt or it is of little value.” (Luther vs. Borden [1849], 7
How. 44, 77).
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§ 10. Security of the State is uncompromising
For the nation to survive a crisis, the citizens must be

supportive and involved in government measures designed
to safeguard and preserve the existence of the State. In the
performance of this essential function, the Government
must, of necessity, enjoy a broad discretion (Vide Sterling
vs. Constantin, 287 U.S. 378). The rights of individuals
must yield to what Government deems the necessities of
the moment. (Vide Moyer vs. Peabody, 212 U.S. 78 [1909)].
The rationale is not difficult to discern. The civil
liberties guaranteed by the Constitution, another American
decision states, “imply the existence of an organized system
maintaining public order without which liberty itself would
be lost in the excesses of unrestrained abuses.” (Cox vs.
New Hampshire, 312 U.S. 569 [1940]).
While any infringement of individual freedoms must be
viewed with deep concern, the Government can not and
should not compromise the safety, security and stability of
the State. The logic of events creates “situations in which
constitutional niceties have no relevance.” (Miller, Op. cit.,
p. 184). Justice Robert H. Jackson in 1941 said that
“constitutional law is not a fixed body of immutable
doctrine. This was echoed by Chief Justice Frederick
Vinson when he remarked: “To those who would paralyze
our government in the face of impending threat by encasing
it in a semantic straitjacket, we must reply that all
concepts are relative.”(Dennis v. United States [1951] 341
U.S. 494). Witness Abraham Lincoln’s lament: “It has long
been a grave question whether any government, not too
strong for the liberties of its people, can be strong enough to
maintain its existence in great emergencies.”
To preserve the security of the State is to understand
harsh realities. As Danton would say: “De l’audace, et
encore de l’audace, et toujours de l’audace, et la Republique
est sauv’ee” (To dare; to dare again; and to dare at all
times; that is how the Republic will be saved). And to
paraphrase also the American writer Elmer Davis, if we do
not have the courage to defend this faith, then what does it
matter if we are saved or not.
——o0o——
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3/26/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 137

660 SUPREME COURT REPORTS ANNOTATED