GENERAL CONSIDERATIONS

Section 5, Article II MAKASIAR, J.:

Section 5. The maintenance of peace and order, the protection of The petitioner Philippine Blooming Mills Employees Organization
life, liberty, and property, and promotion of the general welfare are (hereinafter referred to as PBMEO) is a legitimate labor union
essential for the enjoyment by all the people of the blessings of composed of the employees of the respondent Philippine Blooming
democracy. Mills Co., Inc., and petitioners Nicanor Tolentino, Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente,
Sections 1 and 9, Article III Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers
and members of the petitioner Union.
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the Petitioners claim that on March 1, 1969, they decided to stage a
equal protection of the laws. mass demonstration at Malacaang on March 4, 1969, in protest
against alleged abuses of the Pasig police, to be participated in by
Section 9. Private property shall not be taken for public use without the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those
just compensation. in the regular second and third shifts (from 7 A.M. to 4 P.M. and from
G.R. No. L-31195 June 5, 1973 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION,
NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, The questioned order dated September 15, 1969, of Associate
ROXAS MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO Judge Joaquin M. Salvador of the respondent Court reproduced the
VACUNA, BENJAMIN PAGCU and RODULFO following stipulation of facts of the parties parties
MUNSOD, petitioners, 3. That on March 2, 1969 complainant company learned of the
vs. projected mass demonstration at Malacaang in protest against
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF alleged abuses of the Pasig Police Department to be participated by
INDUSTRIAL RELATIONS, respondents. the first shift (6:00 AM-2:00 PM) workers as well as those working in
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
petitioners. the morning of March 4, 1969;

Demetrio B. Salem & Associates for private respondent. 4. That a meeting was called by the Company on March 3, 1969 at
about 11:00 A.M. at the Company's canteen, and those present
were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr.,
(3) and all department and section heads. For the PBMEO (1)
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacaang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the
union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason,
the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular
shifts, who without previous leave of absence approved by the
Company, particularly , the officers present who are the organizers
of the demonstration, who shall fail to report for work the following
morning (March 4, 1969) shall be dismissed, because such failure is
a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was
convoked Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodolfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting
of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacaang
demonstration, the workers for the first and regular shift of March 4,
1969 should be excused from joining the demonstration and should
report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly
Article XXIV: NO LOCKOUT NO STRIKE'. All those who will not
follow this warning of the Company shall be dismiss; De Leon
reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration.
The union panel countered that it was rather too late to change
their plans inasmuch as the Malacaang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400
proceeded with the demonstration despite the pleas of the
respondent Company that the first shift workers should not be
required to participate in the demonstration and that the workers in
the second and third shifts should be utilized for the demonstration
from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior
notice of the mass demonstration on March 4, 1969, with the
respondent Court, a charge against petitioners and other
employees who composed the first shift, charging them with a
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well
as Section 15, all of Republic Act No. 875, and of the CBA providing
for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The
charge was accompanied by the joint affidavit of Arthur L. Ang and
Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18, 1969, by Acting
Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P.
Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that
they did not violate the existing CBA because they gave the
respondent Company prior notice of the mass demonstration on
March 4, 1969; that the said mass demonstration was a valid
exercise of their constitutional freedom of speech against the
alleged abuses of some Pasig policemen; and that their mass
demonstration was not a declaration of strike because it was not
directed against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted
by the parties, Judge Joaquin M. Salvador, in an order dated
September 15, 1969, found herein petitioner PBMEO guilty of
bargaining in bad faith and herein petitioners Florencio Padrigano,
Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio
Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as
directly responsible for perpetrating the said unfair labor practice
and were, as a consequence, considered to have lost their status as
employees of the respondent Company (Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969,
the aforesaid order (p. 11, rec.); and that they filed on September
29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.),
a motion for reconsideration of said order dated September 15,
1969, on the ground that it is contrary to law and the evidence, as
well as asked for ten (10) days within which to file their arguments
pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as
amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969
(p. 63, rec.), respondent Company averred that herein petitioners
received on September 22, 1969, the order dated September 17
(should be September 15), 1969; that under Section 15 of the
amended Rules of the Court of Industrial Relations, herein
petitioners had five (5) days from September 22, 1969 or until
September 27, 1969, within which to file their motion for
reconsideration; and that because their motion for reconsideration
was two (2) days late, it should be accordingly dismissed,
invoking Bien vs. Castillo, 1 which held among others, that a motion
for extension of the five-day period for the filing of a motion for
reconsideration should be filed before the said five-day period
elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their
written arguments dated October 11, 1969, in support of their
motion for reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en
banc dismissed the motion for reconsideration of herein petitioners
for being pro forma as it was filed beyond the reglementary period
prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein
petitioners received on October 28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969,
which was released on October 24, 1969 and addressed to the
counsels of the parties (pp. 75-76, rec.), appear the requirements of
Sections 15, 16 and 17, as amended, of the Rules of the Court of
Industrial Relations, that a motion for reconsideration shall be filed
within five (5) days from receipt of its decision or order and that an
appeal from the decision, resolution or order of the C.I.R., sitting en
banc, shall be perfected within ten (10) days from receipt thereof
(p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent
court a petition for relief from the order dated October 9, 1969, on
the ground that their failure to file their motion for reconsideration
on time was due to excusable negligence and honest mistake
committed by the president of the petitioner Union and of the office
clerk of their counsel, attaching thereto the affidavits of the said
president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from
the order dated October 9, 1969, herein petitioners filed on
November 3, 1969, with the Supreme Court, a notice of appeal
(Annex "L", pp. 88-89, rec.).
I to petition are included among the immunities reserved by the
There is need of briefly restating basic concepts and principles
which underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the
dignity and worth of the human personality is the central core as
well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest
possible extent in his thoughts and in his beliefs as the citadel of his
person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty,
equality and security "against the assaults of opportunism, the
expediency of the passing hour, the erosion of small
encroachments, and the scorn and derision of those who have no
patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of
the Bill of Rights is to withdraw "certain subjects from the
vicissitudes of political controversy, to place them beyond the reach
of majorities and officials, and to establish them as legal principles
to be applied by the courts. One's rights to life, liberty and property,
to free speech, or free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections." 4 Laski proclaimed that
"the happiness of the individual, not the well-being of the State,
was the criterion by which its behaviour was to be judged. His
interests, not its power, set the limits to the authority it was entitled
to exercise." 5
(3) The freedoms of expression and of assembly as well as the right
sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we
cherish; or as Socrates insinuated, not only to protect the minority
who want to talk, but also to benefit the majority who refuse to
listen. 6 And as Justice Douglas cogently stresses it, the liberties of
one are the liberties of all; and the liberties of one are not safe
unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not
only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well
as in the discipline of abusive public officers. The citizen is accorded
these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and
employees.
(5) While the Bill of Rights also protects property rights, the primacy
of human rights over property rights is recognized. 8 Because these
freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions,"
they "need breathing space to survive," permitting government
regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but
human rights are imprescriptible. If human rights are extinguished
by the passage of time, then the Bill of Rights is a useless attempt
to limit the power of government and ceases to be an efficacious
shield against the tyranny of officials, of majorities, of the influential
and powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; 10 and
such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions." 11
The superiority of these freedoms over property rights is
underscored by the fact that a mere reasonable or rational relation
between the means employed by the law and its object or purpose
that the law is neither arbitrary nor discriminatory nor oppressive
would suffice to validate a law which restricts or impairs property
rights. 12 On the other hand, a constitutional or valid infringement of
human rights requires a more stringent criterion, namely existence
of a grave and immediate danger of a substantive evil which the
State has the right to prevent. So it has been stressed in the main
opinion of Mr. Justice Fernando in Gonzales vs. Comelec and
reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It
should be added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y.
Times Co. vs. Sullivan, 14 believes that the freedoms of speech and
of the press as well as of peaceful assembly and of petition for
redress of grievances are absolute when directed against public
officials or "when exercised in relation to our right to choose the
men and women by whom we shall be governed," 15 even as Mr.
Justice Castro relies on the balancing-of-interests test. 16 Chief
Justice Vinson is partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. whether the gravity of the evil,
discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the
mass demonstration was not a declaration of strike, concluded that
by their "concerted act and the occurrence temporary stoppage of
work," herein petitioners are guilty bargaining in bad faith and
hence violated the collective bargaining agreement with private
respondent Philippine Blooming Mills Co., inc.. Set against and
tested by foregoing principles governing a democratic society, such
conclusion cannot be sustained. The demonstration held petitioners
on March 4, 1969 before Malacaang was against alleged abuses of
some Pasig policemen, not against their employer, herein private
respondent firm, said demonstrate was purely and completely an
exercise of their freedom expression in general and of their right of
assembly and petition for redress of grievances in particular before
appropriate governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They exercise their civil
and political rights for their mutual aid protection from what they
believe were police excesses. As matter of fact, it was the duty of
herein private respondent firm to protect herein petitioner Union
and its members fro the harassment of local police officers. It was
to the interest herein private respondent firm to rally to the defense
of, and take up the cudgels for, its employees, so that they can
report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks
enhance its productivity as well as profits. Herein respondent
employer did not even offer to intercede for its employees with the
local police. Was it securing peace for itself at the expenses of its
workers? Was it also intimidated by the local police or did it
encourage the local police to terrorize or vex its workers? Its failure
to defend its own employees all the more weakened the position of
its laborers the alleged oppressive police who might have been all
the more emboldened thereby subject its lowly employees to
further indignities.
In seeking sanctuary behind their freedom of expression well as
their right of assembly and of petition against alleged persecution
of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only
the weapons afforded them by the Constitution the
untrammelled enjoyment of their basic human rights. The
pretension of their employer that it would suffer loss or damage by
reason of the absence of its employees from 6 o'clock in the
morning to 2 o'clock in the afternoon, is a plea for the preservation
merely of their property rights. Such apprehended loss or damage
would not spell the difference between the life and death of the firm
or its owners or its management. The employees' pathetic situation
was a stark reality abused, harassment and persecuted as they
believed they were by the peace officers of the municipality. As
above intimated, the condition in which the employees found
themselves vis-a-vis the local police of Pasig, was a matter that
vitally affected their right to individual existence as well as that of
their families. Material loss can be repaired or adequately
compensated. The debasement of the human being broken in
morale and brutalized in spirit-can never be fully evaluated in
monetary terms. The wounds fester and the scars remain to
humiliate him to his dying day, even as he cries in anguish for
retribution, denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights freedom of
expression, of peaceful assembly and of petition for redress of
grievances over property rights has been sustained. 18 Emphatic
reiteration of this basic tenet as a coveted boon at once the
shield and armor of the dignity and worth of the human personality,
the all-consuming ideal of our enlightened civilization becomes
Our duty, if freedom and social justice have any meaning at all for
him who toils so that capital can produce economic goods that can
generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in
collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from
employment of the demonstrating employees, stretches unduly the
compass of the collective bargaining agreement, is "a potent means
of inhibiting speech" and therefore inflicts a moral as well as mortal
wound on the constitutional guarantees of free expression, of
peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts
of the employees, according to the respondent Court Industrial
Relations, in effect imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the Court of
Industrial Relations that a stipulated working shifts deny the
workers the right to stage mass demonstration against police
abuses during working hours, constitutes a virtual tyranny over the
mind and life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a
slender ground.
The mass demonstration staged by the employees on March 4,
1969 could not have been legally enjoined by any court, such an
injunction would be trenching upon the freedom expression of the
workers, even if it legally appears to be illegal picketing or
strike. 20 The respondent Court of Industrial Relations in the case at
bar concedes that the mass demonstration was not a declaration of
a strike "as the same not rooted in any industrial dispute although
there is concerted act and the occurrence of a temporary stoppage
work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its
employees to participate in the demonstration and that they
suggested to the Union that only the first and regular shift from 6
A.M. to 2 P.M. should report for work in order that loss or damage to
the firm will be averted. This stand failed appreciate the sine qua
non of an effective demonstration especially by a labor union,
namely the complete unity of the Union members as well as their
total presence at the demonstration site in order to generate the
maximum sympathy for the validity of their cause but also
immediately action on the part of the corresponding government
agencies with jurisdiction over the issues they raised against the
local police. Circulation is one of the aspects of freedom of
expression. 21 If demonstrators are reduced by one-third, then by
that much the circulation of the issues raised by the demonstration
is diminished. The more the participants, the more persons can be
apprised of the purpose of the rally. Moreover, the absence of one-
third of their members will be regarded as a substantial indication
of disunity in their ranks which will enervate their position and abet
continued alleged police persecution. At any rate, the Union notified
the company two days in advance of their projected demonstration
and the company could have made arrangements to counteract or
prevent whatever losses it might sustain by reason of the absence
of its workers for one day, especially in this case when the Union
requested it to excuse only the day-shift employees who will join
the demonstration on March 4, 1969 which request the Union
reiterated in their telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass demonstration (pp.
42-43, rec.). There was a lack of human understanding or
compassion on the part of the firm in rejecting the request of the
Union for excuse from work for the day shifts in order to carry out
its mass demonstration. And to regard as a ground for dismissal the
mass demonstration held against the Pasig police, not against the
company, is gross vindictiveness on the part of the employer, which
is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice.
Because the refusal on the part of the respondent firm to permit all
its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight
(8) petitioners from the service constituted an unconstitutional
restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm
committed an unfair labor practice defined in Section 4(a-1) in
relation to Section 3 of Republic Act No. 875, otherwise known as
the Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees
to the employees the right "to engage in concert activities for ...
mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer interfere with, restrain or coerce
employees in the exercise their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration
staged by the workers of the respondent firm on March 4, 1969,
was for their mutual aid and protection against alleged police
abuses, denial of which was interference with or restraint on the
right of the employees to engage in such common action to better
shield themselves against such alleged police indignities. The
insistence on the part of the respondent firm that the workers for
the morning and regular shift should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection
deserves at least equal protection as the concerted action of
employees in giving publicity to a letter complaint charging bank
president with immorality, nepotism, favoritism an discrimination in
the appointment and promotion of ban employees. 23 We further
ruled in the Republic Savings Bank case, supra, that for the
employees to come within the protective mantle of Section 3 in
relation to Section 4(a-1) on Republic Act No. 875, "it is not
necessary that union activity be involved or that collective
bargaining be contemplated," as long as the concerted activity is
for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the
questioned order of respondent Court dated September 15, 1969,
the company, "while expressly acknowledging, that the
demonstration is an inalienable right of the Union guaranteed by
the Constitution," nonetheless emphasized that "any demonstration
for that matter should not unduly prejudice the normal operation of
the company" and "warned the PBMEO representatives that workers
who belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly the
officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969)
shall be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike (;)" (p.
III, petitioner's brief). Such threat of dismissal tended to coerce the
employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were
more important to them because they had the courage to proceed
with the demonstration, despite such threat of dismissal. The most
that could happen to them was to lose a day's wage by reason of
their absence from work on the day of the demonstration. One
day's pay means much to a laborer, more especially if he has a
family to support. Yet, they were willing to forego their one-day
salary hoping that their demonstration would bring about the
desired relief from police abuses. But management was adamant in
refusing to recognize the superior legitimacy of their right of free
speech, free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it
necessary to demand from the workers proof of the truth of the
alleged abuses inflicted on them by the local police, it thereby
concedes that the evidence of such abuses should properly be
submitted to the corresponding authorities having jurisdiction over
their complaint and to whom such complaint may be referred by the
President of the Philippines for proper investigation and action with
a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial
Relations found that the demonstration "paralyzed to a large extent
the operations of the complainant company," the respondent Court
of Industrial Relations did not make any finding as to the fact of loss
actually sustained by the firm. This significant circumstance can
only mean that the firm did not sustain any loss or damage. It did
not present evidence as to whether it lost expected profits for
failure to comply with purchase orders on that day; or that penalties
were exacted from it by customers whose orders could not be filled
that day of the demonstration; or that purchase orders were
cancelled by the customers by reason of its failure to deliver the
materials ordered; or that its own equipment or materials or
products were damaged due to absence of its workers on March 4,
1969. On the contrary, the company saved a sizable amount in the
form of wages for its hundreds of workers, cost of fuel, water and
electric consumption that day. Such savings could have amply
compensated for unrealized profits or damages it might have
sustained by reason of the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech
and assembly as well as the right to petition for redress of
grievances of the employees, the dismissal of the eight (8) leaders
of the workers for proceeding with the demonstration and
consequently being absent from work, constitutes a denial of social
justice likewise assured by the fundamental law to these lowly
employees. Section 5 of Article II of the Constitution imposes upon
the State "the promotion of social justice to insure the well-being
and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the
Constitution that "the State shall afford protection to labor ...".
Respondent Court of Industrial Relations as an agency of the State
is under obligation at all times to give meaning and substance to
these constitutional guarantees in favor of the working man; for
otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act,
the Court of Industrial Relations is enjoined to effect the policy of
the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-
organization for the purpose of collective bargaining and for the
promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial
Relations, the very governmental agency designed therefor, failed
to implement this policy and failed to keep faith with its avowed
mission its raison d'etre as ordained and directed by the
Constitution.
V
It has been likewise established that a violation of a constitutional
right divests the court of jurisdiction; and as a consequence its
judgment is null and void and confers no rights. Relief from a
criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even
long after the finality of the judgment. Thus, habeas corpus is the
remedy to obtain the release of an individual, who is convicted by
final judgment through a forced confession, which violated his
constitutional right against self-incrimination; 25or who is denied the
right to present evidence in his defense as a deprivation of his
liberty without due process of law, 26even after the accused has
already served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm
trenched upon these constitutional immunities of petitioners. Both
failed to accord preference to such rights and aggravated the
inhumanity to which the aggrieved workers claimed they had been
subjected by the municipal police. Having violated these basic
human rights of the laborers, the Court of Industrial Relations
ousted itself of jurisdiction and the questioned orders it issued in
the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the
courts 28 as well as private citizens and corporations, the exercise
and enjoyment of which must not be nullified by mere procedural
rule promulgated by the Court Industrial Relations exercising a
purely delegate legislative power, when even a law enacted by
Congress must yield to the untrammelled enjoyment of these
human rights. There is no time limit to the exercise of the freedoms.
The right to enjoy them is not exhausted by the delivery of one
speech, the printing of one article or the staging of one
demonstration. It is a continuing immunity to be invoked and
exercised when exigent and expedient whenever there are errors to
be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of Rights would
be vitiated by rule on procedure prescribing the period for appeal.
The battle then would be reduced to a race for time. And in such a
contest between an employer and its laborer, the latter eventually
loses because he cannot employ the best an dedicated counsel who
can defend his interest with the required diligence and zeal, bereft
as he is of the financial resources with which to pay for competent
legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for
reconsideration of its order or writ should filed within five (5) days
from notice thereof and that the arguments in support of said
motion shall be filed within ten (10) days from the date of filing of
such motion for reconsideration (Sec. 16). As above intimated,
these rules of procedure were promulgated by the Court of
Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or
seven (7) days from notice on September 22, 1969 of the order
dated September 15, 1969 or two (2) days late. Petitioners claim
that they could have filed it on September 28, 1969, but it was a
Sunday.
Does the mere fact that the motion for reconsideration was filed
two (2) days late defeat the rights of the petitioning employees? Or
more directly and concretely, does the inadvertent omission to
comply with a mere Court of Industrial Relations procedural rule
governing the period for filing a motion for reconsideration or
appeal in labor cases, promulgated pursuant to a legislative
delegation, prevail over constitutional rights? The answer should be
obvious in the light of the aforecited cases. To accord supremacy to
the foregoing rules of the Court of Industrial Relations over basic
human rights sheltered by the Constitution, is not only incompatible
with the basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate rules and
regulations, but also does violence to natural reason and logic. The
dominance and superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule of necessity
should be affirmed. Such a Court of Industrial Relations rule as
applied in this case does not implement or reinforce or strengthen
the constitutional rights affected,' but instead constrict the same to
the point of nullifying the enjoyment thereof by the petitioning
employees. Said Court of Industrial Relations rule, promulgated as it
was pursuant to a mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and
the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieved workers,
who usually do not have the ready funds to meet the necessary
expenses therefor. In case of the Court of Appeals and the Supreme
Court, a period of fifteen (15) days has been fixed for the filing of
the motion for re hearing or reconsideration (See. 10, Rule 51; Sec.
1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one
day if September 28, 1969 was not a Sunday. This fact accentuates
the unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated
September 27, 1969, is based on the ground that the order sought
to be reconsidered "is not in accordance with law, evidence and
facts adduced during the hearing," and likewise prays for an
extension of ten (10) days within which to file arguments pursuant
to Sections 15, 16 and 17 of the Rules of the Court of Industrial
Relations (Annex "G", pp. 57-60, rec.); although the arguments were
actually filed by the herein petitioners on October 14, 1969 (Annex
"I", pp. 70-73, rec.), long after the 10-day period required for the
filing of such supporting arguments counted from the filing of the
motion for reconsideration. Herein petitioners received only on
October 28, 1969 the resolution dated October 9, 1969 dismissing
the motion for reconsideration for being pro forma since it was filed
beyond the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to
reconsider is filed out of time, or where the arguments in suppf
such motion are filed beyond the 10 day reglementary period
provided for by the Court of Industrial Relations rules, the order or
decision subject of 29-a reconsideration becomes final and
unappealable. But in all these cases, the constitutional rights of free
expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and
defenses presently available must be specifically raised in the
complaint or answer; so that any cause of action or defense not
raised in such pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for the first time
on appeal, if it appears that the determination of the constitutional
issue is necessary to a decision of the case, the very lis mota of the
case without the resolution of which no final and complete
determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a
constitutional right. In the instant case, the procedural rule of the
Court of Industrial Relations, a creature of Congress, must likewise
yield to the constitutional rights invoked by herein petitioners even
before the institution of the unfair labor practice charged against
them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms
sheltered no less by the organic law, is a most compelling reason to
deny application of a Court of Industrial Relations rule which
impinges on such human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent
power to "suspend its own rules or to except a particular case from
its operation, whenever the purposes of justice require." 30-b Mr.
Justice Barredo in his concurring opinion in Estrada vs. Sto.
Domingo. 30-c reiterated this principle and added that
Under this authority, this Court is enabled to cove with all situations
without concerning itself about procedural niceties that do not
square with the need to do justice, in any case, without further loss
of time, provided that the right of the parties to a full day in court is
not substantially impaired. Thus, this Court may treat an appeal as
a certiorari and vice-versa. In other words, when all the material
facts are spread in the records before Us, and all the parties have
been duly heard, it matters little that the error of the court a quo is
of judgment or of jurisdiction. We can then and there render the
appropriate judgment. Is within the contemplation of this doctrine
that as it is perfectly legal and within the power of this Court to
strike down in an appeal acts without or in excess of jurisdiction or
committed with grave abuse of discretion, it cannot be beyond the
admit of its authority, in appropriate cases, to reverse in a certain
proceed in any error of judgment of a court a quo which cannot be
exactly categorized as a flaw of jurisdiction. If there can be any
doubt, which I do not entertain, on whether or not the errors this
Court has found in the decision of the Court of Appeals are short of
being jurisdiction nullities or excesses, this Court would still be on
firm legal grounds should it choose to reverse said decision here
and now even if such errors can be considered as mere mistakes of
judgment or only as faults in the exercise of jurisdiction, so as to
avoid the unnecessary return of this case to the lower court for the
sole purpose of pursuing the ordinary course of an appeal.
(Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial
Relations rule in this particular case at bar would an unreasoning
adherence to "Procedural niceties" which denies justice to the
herein laborers, whose basic human freedoms, including the right to
survive, must be according supremacy over the property rights of
their employer firm which has been given a full hearing on this
case, especially when, as in the case at bar, no actual material
damage has be demonstrated as having been inflicted on its
property rights.
If We can disregard our own rules when justice requires it,
obedience to the Constitution renders more imperative the
suspension of a Court of Industrial Relations rule that clash with the
human rights sanctioned and shielded with resolution concern by
the specific guarantees outlined in the organic law. It should be
stressed that the application in the instant case Section 15 of the
Court of Industrial Relations rules relied upon by herein respondent
firm is unreasonable and therefore such application becomes
unconstitutional as it subverts the human rights of petitioning labor
union and workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of
Industrial Relations rules with reference to the case at is also
authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.
charter, which enjoins the Court of Industrial Relations to "act
according to justice and equity and substantial merits of the case,
without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-
stated by Mr. Justice Barredo, speaking for the Court, in the 1970
case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners in
the motion for new trial is not "newly discovered," as such term is
understood in the rules of procedure for the ordinary courts, We
hold that such criterion is not binding upon the Court of Industrial
Relations. Under Section 20 of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall adopt its, rules or procedure and
shall have such other powers as generally pertain to a court of
justice: Provided, however, That in the hearing, investigation and
determination of any question or controversy and in exercising any
duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard
to technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in such
manner as it may deem just and equitable.' By this provision the
industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to
the specific relief demanded by the parties but may issue such
orders as may be deemed necessary or expedient for the purpose
of settling the dispute or dispelling any doubts that may give rise to
future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these
reasons, We believe that this provision is ample enough to have
enabled the respondent court to consider whether or not its
previous ruling that petitioners constitute a minority was founded
on fact, without regard to the technical meaning of newly
discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua
Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with
"pedantic rigor" in the instant case is to rule in effect that the poor
workers, who can ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to them by the
fundamental law, simply because their counsel erroneously
believing that he received a copy of the decision on September 23,
1969, instead of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which practically is only one
day late considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities
when they ceased to be instruments of justice, for the attainment of
which such rules have been devised. Summarizing the
jurisprudence on this score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v.
Villamor (16 Phil. 315 [1910]. The Villamor decision was cited with
approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949];
Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy,
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice
and becomes its great hindrance and chief enemy, deserves scant
consideration from courts." (Ibid., p, 322.) To that norm, this Court
has remained committed. The late Justice Recto in Blanco v.
Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends
justice." While "procedural laws are no other than technicalities"
view them in their entirety, 'they were adopted not as ends
themselves for the compliance with which courts have organized
and function, but as means conducive to the realization the
administration of the law and of justice (Ibid., p.,128). We have
remained steadfastly opposed, in the highly rhetorical language
Justice Felix, to "a sacrifice of substantial rights of a litigant in altar
of sophisticated technicalities with impairment of the sacred
principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156,
161 [1958]). As succinctly put by Justice Makalintal, they "should
give way to the realities of the situation." (Urbayan v. Caltex, L-
15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest decision in
point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice
Zaldivar was partial to an earlier formulation of Justice Labrador
that rules of procedure "are not to be applied in a very rigid,
technical sense"; but are intended "to help secure substantial
justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule
were to be given effect, the dismissal or termination of the
employment of the petitioning eight (8) leaders of the Union is
harsh for a one-day absence from work. The respondent Court itself
recognized the severity of such a sanction when it did not include
the dismissal of the other 393 employees who are members of the
same Union and who participated in the demonstration against the
Pasig police. As a matter of fact, upon the intercession of the
Secretary of Labor, the Union members who are not officers, were
not dismissed and only the Union itself and its thirteen (13) officers
were specifically named as respondents in the unfair labor practice
charge filed against them by the firm (pp. 16-20, respondent's Brief;
Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent
firm insinuates that not all the 400 or so employee participated in
the demonstration, for which reason only the Union and its thirteen
(13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not
all, of the morning and regular shifts reported for work on March 4,
1969 and that, as a consequence, the firm continued in operation
that day and did not sustain any damage.
The appropriate penalty if it deserves any penalty at all should
have been simply to charge said one-day absence against their
vacation or sick leave. But to dismiss the eight (8) leaders of the
petitioner Union is a most cruel penalty, since as aforestated the
Union leaders depend on their wages for their daily sustenance as
well as that of their respective families aside from the fact that it is
a lethal blow to unionism, while at the same time strengthening the
oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of Government, but from
men of goodwill good men who allow their proper concerns to
blind them to the fact that what they propose to accomplish
involves an impairment of liberty.
... The Motives of these men are often commendable. What we
must remember, however, is thatpreservation of liberties does not
depend on motives. A suppression of liberty has the same effect
whether the suppress or be a reformer or an outlaw. The only
protection against misguided zeal is a constant alertness of the
infractions of the guarantees of liberty contained in our
Constitution. Each surrender of liberty to the demands of the
moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all
are protected.
... But even if we should sense no danger to our own liberties, even
if we feel secure because we belong to a group that is important
and respected, we must recognize that our Bill of Rights is a code
of fair play for the less fortunate that we in all honor and good
conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention,
but a complete lack of sympathetic understanding of the plight of
its laborers who claim that they are being subjected to indignities
by the local police, It was more expedient for the firm to conserve
its income or profits than to assist its employees in their fight for
their freedoms and security against alleged petty tyrannies of local
police officers. This is sheer opportunism. Such opportunism and
expediency resorted to by the respondent company assaulted the
immunities and welfare of its employees. It was pure and
implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs.
C.I.R., 32 where the petitioner Bank dismissed eight (8) employees
for having written and published "a patently libelous letter ... to the
Bank president demanding his resignation on the grounds of
immorality, nepotism in the appointment and favoritism as well as
discrimination in the promotion of bank employees." Therein, thru
Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual
capacities when they wrote the letter-charge they were nonetheless
protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted
activity for mutual aid and protection, (Section 3 of the Industrial
Peace Act ...) This is the view of some members of this Court. For,
as has been aptly stated, the joining in protests or demands, even
by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act.
It is not necessary that union activity be involved or that collective
bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the
respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for
what it calls the respondents' libel in giving undue publicity to their
letter-charge. To be sure, the right of self-organization of employees
is not unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793
[1945]), as the right of the employer to discharge for cause
(Philippine Education Co. v. Union of Phil. Educ. Employees, L-
13773, April 29, 1960) is undenied. The Industrial Peace Act does
not touch the normal exercise of the right of the employer to select
his employees or to discharge them. It is directed solely against the
abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity that the
Bank's conduct, identified as an interference with the employees'
right of self-organization or as a retaliatory action, and/or as a
refusal to bargain collectively, constituted an unfair labor practice
within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify
labor unionism in the Republic Savings case, supra, where the
complaint assailed the morality and integrity of the bank president
no less, such recognition and protection for free speech, free
assembly and right to petition are rendered all the more justifiable
and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court
of Industrial Relations dated September 15 and October 9, 1969;
and
(2) directing the re instatement of the herein eight (8) petitioners,
with full back pay from the date of their separation from the service
until re instated, minus one day's pay and whatever earnings they
might have realized from other sources during their separation from
the service.
With costs against private respondent Philippine Blooming
Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.
Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty
compels me to dissent.
The background of this case may be found principally in the
stipulation of facts upon which the decision under review is based.
It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a
corporation existing and operating under and by virtue of the laws
of the Philippines with corporate address at 666 Muelle de Binondo,
Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO for
short, is a legitimate labor organization, and the respondents herein
are either officers of respondent PBMEO or members thereof;
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM 2:00 PM workers as well as those working
in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at
about 11:00 A.M. at the Company's canteen, and those present
were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de
Leon, Jr. (3) and all department and section heads. For the PBMEO
(1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacaang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as the spokesman of the
union panel, confirmed the planned demonstration and stated that
the demonstration or rally cannot be cancelled because it has
already been agreed upon in the meeting. Pagcu explained further
that the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason,
the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular
shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of
the demonstration, who shall fail to report for work the following
morning (March 4, 1969) shall be dismissed, because such failure is
a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was
convoked. Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodulfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting
of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacaang
demonstration, the workers for the first and regular shift of March 4,
1969 should be excused from joining the demonstration and should
report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly
Article XXIV "NO LOCKOUT NO STRIKE". All those who will not
follow this warning of the Company shall be dismissed; De Leon
reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration.
The union panel countered that it was rather too late to change
their plans inasmuch as the Malacaang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.
Additionally, the trial court found that "the projected demonstration
did in fact occur and in the process paralyzed to a large extent the
operations of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial
Relations filed with said court a complaint for Unfair Labor Practice
against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners herein)
particularly those in the first shift, in violation of the existing
collective bargaining agreement and without filing the necessary
notice as provided for by law, failed to report for work, amounting
to a declaration of strike;
4. That the above acts are in violation of Section 4(a) subparagraph
6, in relation to Sections 13, 14 and 15 of Republic Act No. 875, and
of the collective bargaining agreement. (Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part
of which read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills
Employees Organization is found guilty of bargaining in bad faith
and is hereby ordered to cease and desist from further committing
the same and its representatives namely: respondent Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair
labor practice act, are hereby considered to have lost their status as
employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were
notified of this decision on September 23, 1969, there seems to be
no serious question that they were actually served therewith on
September 22, 1969. In fact, petitioners admitted this date of
notice in paragraph 2 of their Petition for Relief dated October 30,
1969 and filed with the industrial court on the following day. (See
Annex K.)
It is not controverted that it was only on September 29, 1969, or
seven (7) days after they were notified of the court's decision, that
petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in
Support of the Respondents' Motion for Reconsideration" only on
October 14, 1969. (See Annex I.) In other words, petitioners' motion
for reconsideration was filed two (2) days after the lapse of the five
(5) day period provided for the filing thereof in the rules of the
Court of Industrial Relations, whereas the "Arguments" were filed
five (5) days after the expiration of the period therefor also
specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised
by respondent private firm, namely, that in view of the failure of
petitioners to file not only their motion for reconsideration but also
their arguments in support thereof within the periods respectively
fixed in the rules therefor, the Court of Industrial Relations acted
correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem. Squarely applicable
to the facts hereof is the decision of this Court in Elizalde & Co. Inc.
vs. Court of Industrial Relations 1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the
then Associate Judge Arsenio I. Martinez, the dispositive part of
which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No
arguments were advanced in support thereof.
August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support of its
aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion
for reconsideration. Ground therefor was that the arguments were
filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the
same time lodged the present petition with this Court.
Upon respondent Perlado's return and petitioner's brief
(respondents did not file their brief), the case is now before us for
resolution.
1. That the judgment appealed from is a final judgment not
merely an interlocutory order there is no doubt. The fact that
there is need for computation of respondent Perlado's overtime pay
would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System
(Philippines) vs. Pan American Employees Association, which runs
thus: 'It is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial
functions and thereby rendered an incomplete decision. We do not
believe so. Computation of the overtime pay involves a mechanical
function, at most. And the report would still have to be submitted to
the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay
in the decision did not make it incomplete, since this matter should
necessarily be made clear enough in the implementation of the
decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the sense
that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of this
Court both answer the question in the affirmative.
Section 15 of the CIR Rules requires that one who seeks to
reconsider the judgment of the trial judge must do so within five (5)
days from the date on which he received notice of the decision,
subject of the motion. Next follows Section 16 which says that the
motion must be submitted with arguments supporting the same.
But if said arguments could not be submitted simultaneously with
the motion, the same section commands the 'the movant shall file
the same within ten (10) days from the date of the filing of his
motion for reconsideration.' Section 17 of the same rules
admonishes a movant that "(f)ailure to observe the above-specified
periods shall be sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97
Phil. 956) we ruled that where a pro forma motion for
reconsideration was filed out of time its denial is in order pursuant
to CIR rules, regardless of whether the arguments in support of said
motion were or were not filed on time. Pangasinan Employees
Laborers & Tenants Association (PELTA) vs. Martinez, (L-13846, May
20, 1960) pronounced that where a motion to reconsider is filed out
of time, the order or decision subject of reconsideration comes final.
And so also, where the arguments in support of the motion for
reconsideration are filed beyond the ten-day reglementary period,
the pre forma motion for reconsideration although seasonably filed
must nevertheless be denied. This in essence is our ruling in Local
7, Press & Printing Free Workers (FFW) vs. Tabigne. The teaching
in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time,
the order or decision subject of the motion becomes "final and
unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion to reconsider without
arguments in support thereof of August 12 was filed on time. For,
August 11, the end of the five-day reglementary period to file a
motion for reconsideration, was a Sunday. But, actually, the written
arguments in support of the said motion were submitted to the
court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed
out of time five (5) days late. And the judgment had become
final.
3. There is, of course, petitioner's motion of August 21, 1963
seeking extension of time within which to present its arguments in
support of its motion. Counsel in his petition before this Court
pleads that the foregoing motion was grounded on the 'extremely
busy and difficult schedule of counsel which would not enable him
to do so within the stated ten-day reglementary period. The
arguments were only filed on August 27 five (5) days late, as
aforesaid.
The foregoing circumstances will not avail petitioner any. It is to be
noted that the motion for expansion of time was filed only on
August 21, that is, one day before the due date which is August 22.
It was petitioner's duty to see to it that the court act on this motion
forthwith or at least inquire as to the fate thereof not later than the
22nd of August. It did not. It merely filed its arguments on the 27th.
To be underscored at this point is that "obviously to speed up the
disposition of cases", CIR "has a standing rule against the extension
of the ten-day period for filing supporting arguments". That no-
extension policy should have placed petitioner on guard. It should
not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that by that
time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of September 16,
1963 dismissing the motion for reconsideration on the ground that
the supporting arguments were filed out of time. That ruling in
effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable.
We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent,
which has not been in any way modified, much less revoked or
reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred
in holding them guilty of bargaining in bad faith but also to
ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.
Precisely because the conclusions of the main opinion are
predicated on an exposition of the constitutional guarantees of
freedoms of speech and peaceful assembly for redress of
grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I
am constrained, over and above my sincere admiration for the
eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
dutifully state that as presented by petitioners themselves and in
the light of its attendant circumstances, this case does not call for
the resolution of any constitutional issue. Admittedly, the invocation
of any constitutional guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights, deserves the
closest attention of this Court. It is my understanding of
constitutional law and judicial practices related thereto, however,
that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject
matter is unquestionably established and the applicable rules of
procedure consistent with substantive and procedural due process
are observed. No doubt no constitutional right can be sacrificed in
the altar of procedural technicalities, very often fittingly
downgraded as niceties but as far as I know, this principle is applied
to annul or set aside final judgments only in cases wherein there is
a possible denial of due process. I have not come across any
instance, and none is mentioned or cited in the well-documented
main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the
effect of sanctioning the violation of a constitutional right, unless
such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or
from any judicial precedent or reason of principle, the main opinion
nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a
constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is
mentioned almost in passing, does uphold the proposition that
"relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment". And, of
course, Chavez is correct; as is also Abriol vs. Homeres 2 which, in
principle, served as its precedent, for the very simple reason that in
both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a
witness for the prosecution; in Abriol, the accused was denied his
request to be allowed to present evidence to establish his defense
after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in
those cases are a far cry from the one now before Us. Here,
petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the
respondent Court of Industrial Relations and private firm trenched
upon any of their constitutional immunities ...," contrary to the
statement to such effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of petitioners can
any direct or indirect assertion be found assailing the impugned
decision of the respondent court as being null and void because it
sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as
follows:
Petitioners herein humbly submit that the issue to be resolved is
whether or not the respondent Courten banc under the facts and
circumstances, should consider the Motion for Reconsideration filed
by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari,
humbly beg this Honorable Court to treat this petition under Rule 43
and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc of
the strict and narrow technical rules of procedure without taking
into account justice, equity and substantial merits of the case.
On the other hand, the complete argument submitted by petitioners
on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute bargaining in bad
faith? and,
Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith
meriting the dismissal of the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion when the respondent court
refused to act one way or another on the petition for relief from the
resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union guilty of
bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is country
to the evidence on record; that the dismissal of leaders was
discriminatory.
As a result of exercising the constitutional rights of freedom to
assemble and petition the duly constituted authorities for redress of
their grievances, the petitioners were charged and then condemned
of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad faith
were not borne out by the records. It was not even alleged nor
proven by evidence. What has been alleged and which the
respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the
"no-lockout no strike" clause of the collective bargaining
agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated categorically:
'The company alleges that the walkout because of the
demonstration is tantamount to a declaration of a strike. We do not
think so, as the same is not rooted in any industrial dispute
although there is a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's findings that the petitioner union bargained
in bad faith is not tenable because:
First, it has not been alleged nor proven by the respondent
company; .
Second, before the demonstration, the petitioner union and the
respondent company convened twice in a meeting to thresh out the
matter of demonstration. Petitioners requested that the employees
and workers be excused but the respondent company instead of
granting the request or even settling the matter so that the hours of
work will not be disrupted, immediately threatened the employees
of mass dismissal;
Third, the refusal of the petitioner union to grant the request of the
company that the first shift shall be excluded in the demonstration
is not tantamount to bargaining in bad faith because the company
knew that the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its
officers to lead and join the demonstration because most of them
belonged to the first shift; and
Fourth, the findings of the respondent court that the demonstration
if allowed will practically give the union the right to change the
working conditions agreed in the CBA is a conclusion of facts,
opinionated and not borne by any evidence on record. The
demonstration did not practically change the terms or conditions of
employment because it was only for one (1) day and the company
knew about it before it went through. We can even say that it was
the company who bargained in bad faith, when upon representation
of the Bureau of Labor not to dismiss the employees demonstrating,
the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge
and consequently dismissed those who participated.
Records of the case show that more or less 400 members of the
union participated in the demonstration and yet, the respondent
court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent company.
The respondent court should have taken into account that the
company's action in allowing the return of more or less three
hundred ninety two (392) employees/members of the union is an
act of condonation and the dismissal of the eight (8) officers is an
act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly,
from the opinion stated in the decision by the court, while there is a
collective bargaining agreement, the union cannot go on
demonstration or go on strike because it will change the terms and
conditions of employment agreed in the CBA. It follows that the CBA
is over and above the constitutional rights of a man to demonstrate
and the statutory rights of a union to strike as provided for in
Republic Act 875. This creates a bad precedent because it will
appear that the rights of the union is solely dependent upon the
CBA.
One of the cardinal primary rights which must be respected in
proceedings before the Court of Industrial Relations is that "the
decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R.
Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the parties,
can the latter be protected in their rights to know and meet the
case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)
The petitioners respectfully and humbly submit that there is no
scintilla of evidence to support the findings of the respondent court
that the petitioner union bargained in bad faith. Corollary therefore,
the dismissal of the individual petitioners is without basis either in
fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been guilty
of bargaining in bad faith and consequently lost their status as
employees of the respondent company did not meet the meaning
and comprehension of "substantial merits of the case." Bargaining
in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important
and substantial merit of the case is whether under the facts and
circumstances alleged in respondent company's pleadings, the
demonstration done by the petitioners amounted to on "illegal
strike" and therefore in violation of the "no strike no lock out"
clause of the Collective Bargaining Agreement. Petitioners
respectfully reiterate and humbly submit, that the respondent court
had altogether opined and decided that such demonstration does
not amount to a strike. Hence, with that findings, petitioners should
have been absolved of the charges against them. Nevertheless, the
same respondent court disregarding, its own findings, went out of
bounds by declaring the petitioners as having "bargained in faith."
The stand of the respondent court is fallacious, as it follows the
principle in logic as "non-siquitor";
2) That again respondents wanted to impress that the freedom to
assemble peaceably to air grievances against the duly constituted
authorities as guaranteed in our Constitution is subject to the
limitation of the agreement in the Collective Bargaining Agreement.
The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining
Agreement and such attempt to override the constitutional
provision would be null and void. These fundamental rights of the
petitioners were not taken into consideration in the deliberation of
the case by the respondent court;
Thus, it is clear from the foregoing contentions that petitioners are
not raising any issue of due process. They do not posit that the
decision of the industrial court is null and void on that constitutional
ground. True it is that they fault the respondent court for having
priced the provisions of the collective bargaining agreement herein
involved over and above their constitutional right to peaceably
assemble and petition for redress of their grievances against the
abuses of the Pasig police, but in no sense at all do they allege or
contend that such action affects its jurisdiction in a manner that
renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere
error of judgment rather than that of jurisdiction which the main
opinion projects. For this Court to roundly and indignantly condemn
private respondent now for the grievous violation of the
fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific
issue has not been duly presented to Us and properly argued, is to
my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be
heard in regard to such supposed constitutional transgression.
To be sure, petitioners do maintain, that respondent court
committed an error of jurisdiction by finding petitioners guilty of
bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which
"amounted to a strike", in violation of the Collective Bargaining
Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of
argument, that the trial judge did err in not giving preferential
importance to the fundamental freedoms invoked by the petitioners
over the management and proprietary attributes claimed by the
respondent private firm still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is
that "decisions, erroneous or not, become final after the period
fixed by law; litigations would be endless, no questions would be
finally settled; and titles to property would become precarious if the
losing party were allowed to reopen them at any time in the
future". 3
I only have to add to this that the fact that the error is in the
interpretation, construction or application of a constitutional
precept not constituting a denial of due process, should not make
any difference. Juridically, a party cannot be less injured by an
overlooked or erroneously sanctioned violation of an ordinary
statute than by a misconstrued or constitutional injunction affecting
his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final
judgments. I dare say this must be the reason why, as I have
already noted, the main opinion does not cite any constitutional
provision, law or rule or any judicial doctrine or principle supporting
its basic holding that infringement of constitutional guarantees,
other than denial of due process, divests courts of jurisdiction to
render valid judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is
that "it is one of our (the Supreme Court's) decisional practices that
unless a constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon,
much less have they adequately argued the constitutional issues so
extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to
hold that the erroneous resolution by a court of a constitutional
issue not amounting to a denial of due process renders its judgment
or decision null and void, and, therefore, subject to attack even
after said judgment or decision has become final and executory. I
have actually tried to bring myself into agreement with the views of
the distinguished and learned writer of the main opinion, if only to
avoid dissenting from his well prepared thesis, but its obvious
incongruity with settled jurisprudence always comes to the fore to
stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go
along with petitioners under the authority of our constitutionally
irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines 6 (reenacted practically ipssisimis verbis in Section
5(2) of the 1973 Constitution), only to realize upon further reflection
that the very power granted to us to review decisions of lower
courts involving questions of law(and these include constitutional
issues not affecting the validity of statutes, treaty, executive
agreement, etc.) is not unqualified but has to be exercised only in
the manner provided in the law of the Rules of Court. In other
words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there
must first be a showing of compliance with the applicable
procedural law or rules, among them, those governing appeals from
the Court of Industrial Relations involved herein. Consequently, if by
law or rule, a judgment of the industrial court is already final and
executory, this Court would be devoid of power and authority to
review, much less alter or modify the same, absent any denial of
due process or fatal defect of jurisdiction. It must be borne in mind
that the situation confronting Us now is not merely whether or not
We should pass upon a question or issue not specifically raised by
the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the
real problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated earlier, no less
than Justice Conrado Sanchez, the writer of Chavez,supra., which is
being relied upon by the main opinion, already laid down the
precedent in Elizalde vs. Court, supra, which for its four-square
applicability to the facts of this case, We have no choice but to
follow, that is, that in view of reconsideration but even their
argument supporting the same within the prescribed period, "the
judgment (against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless if the finality
and enforceability of their judgments are made contingent on the
correctness thereof from the constitutional standpoint, and that in
truth, whether or not they are correct is something that is always
dependent upon combined opinion of the members of the Supreme
Court, which in turn is naturally as changeable as the members
themselves are changed, I cannot conceive of anything more
pernicious and destructive to a trustful administration of justice
than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory
judgment of such court may still be set aside or reopened in
instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code. 7 And just to
emphasize the policy of the law of respecting judgments once they
have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors, 8 it is only
when the fraud is extrinsic and not intrinsic that final and executory
judgments may be set aside, 9 and this only when the remedy is
sought within the prescriptive period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin
Kaw, 82 Phil. 776:
Litigation must end and terminate sometime and somewhere, and it
is essential to an effective and efficient administration of justice
that once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to
bring about that result. Constituted as they are to put an end to
controversies, courts should frown upon any attempt to prolong
them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay
v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some
definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose
and to do so speedily, certain time limits, more or less arbitrary,
have to be set up to spur on the slothful. 'If a vacillating, irresolute
judge were allowed to thus keep causes ever within his power, to
determine and redetermine them term after term, to bandy his
judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may
change its hues, then litigation might become more intolerable than
the wrongs it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los
Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the
unalterability and invulnerability of final judgments but rather on
the correct interpretation of the contents of the judgment in
question therein. Relevantly to this case at bar, I said then:
The point of res adjudicata discussed in the dissents has not
escaped my attention. Neither am I overlooking the point of the
Chief Justice regarding the dangerous and inimical implications of a
ruling that would authorize the revision, amendment or alteration of
a final and executory judgment. I want to emphasize that my
position in this opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining any such
modifications. The public policy of maintaining faith and respect in
judicial decisions, which inform said doctrines, is admittedly of the
highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should
have been rather than what it is. All I am doing is to view not the
judgment of Judge Tengco but the decision of this Court in G.R. No.
L-20950, as it is and not as I believe it should have been, and, by
opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of
this Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving
cases in the industrial court, wherein the Court refused to be
constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those
decisions, some of which were penned by me. I am certain,
however, that in none of those precedents did this Court disturb a
judgment already final and executory. It too obvious to require
extended elucidation or even reference any precedent or authority
that the principle of immutability of final judgments is not a mere
technicality, and if it may considered to be in a sense a procedural
rule, it is one that is founded on public policy and cannot, therefore,
yield to the ordinary plea that it must give priority to substantial
justice.
Apparently vent on looking for a constitutional point of due process
to hold on, the main opinion goes far as to maintain that the long
existing and constantly applied rule governing the filing of motions
for reconsideration in the Court of Industrial Relations, "as applied
in this case does not implement on reinforce or strengthen the
constitutional rights affected, but instead constricts the same to the
point of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule, promulgated as
it was pursuant to mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and
the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieve workers,
who usually do not have the ready funds to meet the necessary
expenses therefor. In case of the Court of Appeal and the Supreme
Court, a period of fifteen (15) days has been fixed for the filing of
the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec.
1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one
day if September 28, 1969 was not a Sunday. This fact accentuates
the unreasonableness of the Court of Industrial Relations Rule
insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify
the conclusion suggested. Viewed objectively, it can readily be seen
that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies, within five
(5) days from the date on which he receives notice of the order or
decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the
allegations of fact, and serving a copy thereof, personally or by
registered mail, on the adverse party. The latter may file an answer,
in six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court, the
movant shall file same within ten (10) days from the date of the
filing of his motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by him of a
copy of the arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten
(10) days from the receipt of the arguments in support of said
motion having been filed, the motion shall be deemed submitted for
resolution of the Court in banc, unless it is considered necessary to
bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out
of the answer and/or the supporting arguments, as the case may
be. (As amended April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as
everyone acquainted with proceedings in the industrial court well
knows, precisely permits the party aggrieved by a judgment to file
no more than a pro-forma motion for reconsideration without any
argument or lengthy discussion and with barely a brief statement of
the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with
citations laws and authorities, in the written arguments the be filed
(10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does
not agree with the judgment due to fundamental defects stated in
brief and general terms. Evidently, the purpose of this requirement
is to apprise everyone concerned within the shortest possible time
that a reconsideration is to sought, and thereby enable the parties
concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must
borne in mind that cases in the industrial court may involve affect
the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of each party at
every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the
rule is short or inadequate. In fact, the motion filed petitioners was
no more than the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this
Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable Court dated
September 17, 1969 on the ground that the same is not in
accordance with law, evidence and facts adduced during the
hearing of the above entitled case.
Movant-respondents most respectfully move for leave to file their
respective arguments within ten (10) days pursuant to Section 15,
16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing of
such a motion is to me simply incomprehensible. What worse in this
case is that petitioners have not even taken the trouble of giving an
explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered
for such delay is that both the President of the Union and the office
clerk who took charge of the matter forgot to do what they were
instructed to do by counsel, which, according to this Court, as I shall
explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural
requirements prescribed by the Rules of Court". (Philippine Airlines,
Inc. vs. Arca, infra). And yet, very indignantly, the main opinion
would want the Court to overlook such nonchalance and
indifference.
In this connection, I might add that in my considered opinion, the
rules fixing periods for the finality of judgments are in a sense more
substantive than procedural in their real nature, for in their
operation they have the effect of either creating or terminating
rights pursuant to the terms of the particular judgment concerned.
And the fact that the court that rendered such final judgment is
deprived of jurisdiction or authority to alter or modify the same
enhances such substantive character. Moreover, because they have
the effect of terminating rights and the enforcement thereof, it may
be said that said rules partake of the nature also of rules of
prescription, which again are substantive. Now, the twin predicates
of prescription are inaction or abandonment and the passage of
time or a prescribed period. On the other hand, procrastination or
failure to act on time is unquestionably a form of abandonment,
particularly when it is not or cannot be sufficiently explained. The
most valuable right of a party may be lost by prescription, and be
has no reason to complain because public policy demands that
rights must be asserted in time, as otherwise they can be deemed
waived.
I see no justification whatsoever for not applying these self-evident
principles to the case of petitioners. Hence, I feel disinclined to
adopt the suggestion that the Court suspend, for the purposes of
this case the rules aforequoted of the Court of Industrial Relations.
Besides, I have grave doubts as to whether we can suspend rules of
other courts, particularly that is not under our supervisory
jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of
substance justice, this Court did exercise in some instances its re
power to amend its rules, I am positively certain, it has done it for
the purpose of reviving a case in which the judo has already
become final and executory.
Before closing, it may be mentioned here, that as averred their
petition, in a belated effort to salvage their Petitioners filed in the
industrial court on October 31, 1969 a Petition for relief alleging
that their failure to file "Arguments in Support of their Motion for
Reconsideration within the reglementary period or five (5), if not
seven (7), days late "was due to excusable negligence and honest
mistake committed by the President of the respondent Union and
on office clerk of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2) which in brief,
consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of
the said office employee having also coincidentally forgotten "to do
the work instructed (sic) to (him) by Atty. Osorio" because he "was
busy with clerical jobs". No sympathy at all can be evoked these
allegations, for, under probably more justification circumstances,
this Court ruled out a similar explanation previous case this wise:
We find merit in PAL's petition. The excuse offered respondent
Santos as reason for his failure to perfect in due time appeal from
the judgment of the Municipal Court, that counsel's clerk forgot to
hand him the court notice, is the most hackneyed and habitual
subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical
acceptance of this kind of common place excuses, in the face of the
Supreme Court's repeated rulings that they are neither credible nor
constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29
January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a
grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA
300.)
For the reason, therefore, that the judgment of the industrial court
sought to be reviewed in the present case has already become final
and executory, nay, not without the fault of the petitioners, hence,
no matter how erroneous from the constitutional viewpoint it may
be, it is already beyond recall, I vote to dismiss this case, without
pronouncement as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacaang on
March 4, 1969 in protest against alleged abuses of the Pasig police
department, upon two days' prior notice to respondent employer
company, as against the latter's insistence that the first
shift 1 should not participate but instead report for work, under pain
of dismissal, the industrial court ordered the dismissal from
employment of the eight individual petitioners as union officers and
organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on
respondent's complaint of bargaining in bad faith and unfair labor
practice for having so carried out the mass demonstration,
notwithstanding that it concededly was nota declaration of strike
nor directed in any manner against respondent employer, and
ordering the dismissal of the union office manifestly constituted
grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor
practice since respondent firm conceded that "the demonstration is
an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by
cablegram to the company to excuse the first shift and allow it to
join the demonstration in accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective
bargaining agreement's "no-strike" clause as would warrant the
union leaders' dismissal, since as found by respondent court itself
the mass demonstration was not a declaration of a strike, there
being no industrial dispute between the protagonists, but merely
the occurrence of a temporary stoppage of work" to enable the
workers to exercise their constitutional rights of free expression,
peaceable assembly and petition for redress of grievance against
alleged police excesses.
Respondent court's en banc resolution dismissing petitioners'
motion for reconsideration for having been filed two days late, after
expiration of the reglementary five-day period fixed by its rules, due
to the negligence of petitioners' counsel and/or the union president
should likewise be set aside as a manifest act of grave abuse of
discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration
due to such negligence which was not acted upon by respondent
court should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through
their summary dismissal from employment, simply because they
sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of
actual loss from the one-day stoppage of work was shown by
respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having
included the first shift workers in the mass demonstration against
its wishes was but an act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual
petitioners and the constitutional injunction to afford protection to
labor be given true substance and meaning. No person may be
deprived of such basic rights without due process which is but
"responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of
the respondent court and concur in the judgment for petitioners as
set forth in the main opinion.
Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty
compels me to dissent.
The background of this case may be found principally in the
stipulation of facts upon which the decision under review is based.
It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a
corporation existing and operating under and by virtue of the laws
of the Philippines with corporate address at 666 Muelle de Binondo,
Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO for
short, is a legitimate labor organization, and the respondents herein
are either officers of respondent PBMEO or members thereof;
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM 2:00 PM workers as well as those working
in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at
about 11:00 A.M. at the Company's canteen, and those present
were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de
Leon, Jr. (3) and all department and section heads. For the PBMEO
(1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacaang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as the spokesman of the
union panel, confirmed the planned demonstration and stated that
the demonstration or rally cannot be cancelled because it has
already been agreed upon in the meeting. Pagcu explained further
that the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason,
the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular
shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of
the demonstration, who shall fail to report for work the following
morning (March 4, 1969) shall be dismissed, because such failure is
a violation of the existing CBA and, therefore, would be amounting
to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was
convoked. Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodulfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting
of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacaang
demonstration, the workers for the first and regular shift of March 4,
1969 should be excused from joining the demonstration and should
report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly
Article XXIV "NO LOCKOUT NO STRIKE". All those who will not
follow this warning of the Company shall be dismissed; De Leon
reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration.
The union panel countered that it was rather too late to change
their plans inasmuch as the Malacaang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.
Additionally, the trial court found that "the projected demonstration
did in fact occur and in the process paralyzed to a large extent the
operations of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial
Relations filed with said court a complaint for Unfair Labor Practice
against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners herein)
particularly those in the first shift, in violation of the existing
collective bargaining agreement and without filing the necessary
notice as provided for by law, failed to report for work, amounting
to a declaration of strike;
4. That the above acts are in violation of Section 4(a) subparagraph
6, in relation to Sections 13, 14 and 15 of Republic Act No. 875, and
of the collective bargaining agreement. (Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part
of which read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills
Employees Organization is found guilty of bargaining in bad faith
and is hereby ordered to cease and desist from further committing
the same and its representatives namely: respondent Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair
labor practice act, are hereby considered to have lost their status as
employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were
notified of this decision on September 23, 1969, there seems to be
no serious question that they were actually served therewith on
September 22, 1969. In fact, petitioners admitted this date of
notice in paragraph 2 of their Petition for Relief dated October 30,
1969 and filed with the industrial court on the following day. (See
Annex K.)
It is not controverted that it was only on September 29, 1969, or
seven (7) days after they were notified of the court's decision, that
petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in
Support of the Respondents' Motion for Reconsideration" only on
October 14, 1969. (See Annex I.) In other words, petitioners' motion
for reconsideration was filed two (2) days after the lapse of the five
(5) day period provided for the filing thereof in the rules of the
Court of Industrial Relations, whereas the "Arguments" were filed
five (5) days after the expiration of the period therefor also
specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised
by respondent private firm, namely, that in view of the failure of
petitioners to file not only their motion for reconsideration but also
their arguments in support thereof within the periods respectively
fixed in the rules therefor, the Court of Industrial Relations acted
correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for
reconsideration.
Respondent's contention presents no problem. Squarely applicable
to the facts hereof is the decision of this Court in Elizalde & Co. Inc.
vs. Court of Industrial Relations 1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the
then Associate Judge Arsenio I. Martinez, the dispositive part of
which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No
arguments were advanced in support thereof.
August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support of its
aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion
for reconsideration. Ground therefor was that the arguments were
filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the
same time lodged the present petition with this Court.
Upon respondent Perlado's return and petitioner's brief
(respondents did not file their brief), the case is now before us for
resolution.
1. That the judgment appealed from is a final judgment not
merely an interlocutory order there is no doubt. The fact that
there is need for computation of respondent Perlado's overtime pay
would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System
(Philippines) vs. Pan American Employees Association, which runs
thus: 'It is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial
functions and thereby rendered an incomplete decision. We do not
believe so. Computation of the overtime pay involves a mechanical
function, at most. And the report would still have to be submitted to
the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay
in the decision did not make it incomplete, since this matter should
necessarily be made clear enough in the implementation of the
decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the sense
that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of this
Court both answer the question in the affirmative.
Section 15 of the CIR Rules requires that one who seeks to
reconsider the judgment of the trial judge must do so within five (5)
days from the date on which he received notice of the decision,
subject of the motion. Next follows Section 16 which says that the
motion must be submitted with arguments supporting the same.
But if said arguments could not be submitted simultaneously with
the motion, the same section commands the 'the movant shall file
the same within ten (10) days from the date of the filing of his
motion for reconsideration.' Section 17 of the same rules
admonishes a movant that "(f)ailure to observe the above-specified
periods shall be sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97
Phil. 956) we ruled that where a pro forma motion for
reconsideration was filed out of time its denial is in order pursuant
to CIR rules, regardless of whether the arguments in support of said
motion were or were not filed on time. Pangasinan Employees
Laborers & Tenants Association (PELTA) vs. Martinez, (L-13846, May
20, 1960) pronounced that where a motion to reconsider is filed out
of time, the order or decision subject of reconsideration comes final.
And so also, where the arguments in support of the motion for
reconsideration are filed beyond the ten-day reglementary period,
the pre forma motion for reconsideration although seasonably filed
must nevertheless be denied. This in essence is our ruling in Local
7, Press & Printing Free Workers (FFW) vs. Tabigne. The teaching
in Luzon Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time,
the order or decision subject of the motion becomes "final and
unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion to reconsider without
arguments in support thereof of August 12 was filed on time. For,
August 11, the end of the five-day reglementary period to file a
motion for reconsideration, was a Sunday. But, actually, the written
arguments in support of the said motion were submitted to the
court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed
out of time five (5) days late. And the judgment had become
final.
3. There is, of course, petitioner's motion of August 21, 1963
seeking extension of time within which to present its arguments in
support of its motion. Counsel in his petition before this Court
pleads that the foregoing motion was grounded on the 'extremely
busy and difficult schedule of counsel which would not enable him
to do so within the stated ten-day reglementary period. The
arguments were only filed on August 27 five (5) days late, as
aforesaid.
The foregoing circumstances will not avail petitioner any. It is to be
noted that the motion for expansion of time was filed only on
August 21, that is, one day before the due date which is August 22.
It was petitioner's duty to see to it that the court act on this motion
forthwith or at least inquire as to the fate thereof not later than the
22nd of August. It did not. It merely filed its arguments on the 27th.
To be underscored at this point is that "obviously to speed up the
disposition of cases", CIR "has a standing rule against the extension
of the ten-day period for filing supporting arguments". That no-
extension policy should have placed petitioner on guard. It should
not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that by that
time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of September 16,
1963 dismissing the motion for reconsideration on the ground that
the supporting arguments were filed out of time. That ruling in
effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable.
We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent,
which has not been in any way modified, much less revoked or
reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred
in holding them guilty of bargaining in bad faith but also to
ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.
Precisely because the conclusions of the main opinion are
predicated on an exposition of the constitutional guarantees of
freedoms of speech and peaceful assembly for redress of
grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I
am constrained, over and above my sincere admiration for the
eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
dutifully state that as presented by petitioners themselves and in
the light of its attendant circumstances, this case does not call for
the resolution of any constitutional issue. Admittedly, the invocation
of any constitutional guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights, deserves the
closest attention of this Court. It is my understanding of
constitutional law and judicial practices related thereto, however,
that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject
matter is unquestionably established and the applicable rules of
procedure consistent with substantive and procedural due process
are observed. No doubt no constitutional right can be sacrificed in
the altar of procedural technicalities, very often fittingly
downgraded as niceties but as far as I know, this principle is applied
to annul or set aside final judgments only in cases wherein there is
a possible denial of due process. I have not come across any
instance, and none is mentioned or cited in the well-documented
main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the
effect of sanctioning the violation of a constitutional right, unless
such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or
from any judicial precedent or reason of principle, the main opinion
nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a
constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is
mentioned almost in passing, does uphold the proposition that
"relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment". And, of
course, Chavez is correct; as is also Abriol vs. Homeres 2 which, in
principle, served as its precedent, for the very simple reason that in
both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a
witness for the prosecution; in Abriol, the accused was denied his
request to be allowed to present evidence to establish his defense
after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in
those cases are a far cry from the one now before Us. Here,
petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the
respondent Court of Industrial Relations and private firm trenched
upon any of their constitutional immunities ...," contrary to the
statement to such effect in the main opinion. Indeed, neither in the
petition herein nor in any of the other pleading of petitioners can
any direct or indirect assertion be found assailing the impugned
decision of the respondent court as being null and void because it
sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as
follows:
Petitioners herein humbly submit that the issue to be resolved is
whether or not the respondent Courten banc under the facts and
circumstances, should consider the Motion for Reconsideration filed
by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari,
humbly beg this Honorable Court to treat this petition under Rule 43
and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc of
the strict and narrow technical rules of procedure without taking
into account justice, equity and substantial merits of the case.
On the other hand, the complete argument submitted by petitioners
on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute bargaining in bad
faith? and,
Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith
meriting the dismissal of the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion when the respondent court
refused to act one way or another on the petition for relief from the
resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union guilty of
bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is country
to the evidence on record; that the dismissal of leaders was
discriminatory.
As a result of exercising the constitutional rights of freedom to
assemble and petition the duly constituted authorities for redress of
their grievances, the petitioners were charged and then condemned
of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad faith
were not borne out by the records. It was not even alleged nor
proven by evidence. What has been alleged and which the
respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the
"no-lockout no strike" clause of the collective bargaining
agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated categorically:
'The company alleges that the walkout because of the
demonstration is tantamount to a declaration of a strike. We do not
think so, as the same is not rooted in any industrial dispute
although there is a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's findings that the petitioner union bargained
in bad faith is not tenable because:
First, it has not been alleged nor proven by the respondent
company; .
Second, before the demonstration, the petitioner union and the
respondent company convened twice in a meeting to thresh out the
matter of demonstration. Petitioners requested that the employees
and workers be excused but the respondent company instead of
granting the request or even settling the matter so that the hours of
work will not be disrupted, immediately threatened the employees
of mass dismissal;
Third, the refusal of the petitioner union to grant the request of the
company that the first shift shall be excluded in the demonstration
is not tantamount to bargaining in bad faith because the company
knew that the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its
officers to lead and join the demonstration because most of them
belonged to the first shift; and
Fourth, the findings of the respondent court that the demonstration
if allowed will practically give the union the right to change the
working conditions agreed in the CBA is a conclusion of facts,
opinionated and not borne by any evidence on record. The
demonstration did not practically change the terms or conditions of
employment because it was only for one (1) day and the company
knew about it before it went through. We can even say that it was
the company who bargained in bad faith, when upon representation
of the Bureau of Labor not to dismiss the employees demonstrating,
the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge
and consequently dismissed those who participated.
Records of the case show that more or less 400 members of the
union participated in the demonstration and yet, the respondent
court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent company.
The respondent court should have taken into account that the
company's action in allowing the return of more or less three
hundred ninety two (392) employees/members of the union is an
act of condonation and the dismissal of the eight (8) officers is an
act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly,
from the opinion stated in the decision by the court, while there is a
collective bargaining agreement, the union cannot go on
demonstration or go on strike because it will change the terms and
conditions of employment agreed in the CBA. It follows that the CBA
is over and above the constitutional rights of a man to demonstrate
and the statutory rights of a union to strike as provided for in
Republic Act 875. This creates a bad precedent because it will
appear that the rights of the union is solely dependent upon the
CBA.
One of the cardinal primary rights which must be respected in
proceedings before the Court of Industrial Relations is that "the
decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R.
Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the parties,
can the latter be protected in their rights to know and meet the
case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)
The petitioners respectfully and humbly submit that there is no
scintilla of evidence to support the findings of the respondent court
that the petitioner union bargained in bad faith. Corollary therefore,
the dismissal of the individual petitioners is without basis either in
fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been guilty
of bargaining in bad faith and consequently lost their status as
employees of the respondent company did not meet the meaning
and comprehension of "substantial merits of the case." Bargaining
in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important
and substantial merit of the case is whether under the facts and
circumstances alleged in respondent company's pleadings, the
demonstration done by the petitioners amounted to on "illegal
strike" and therefore in violation of the "no strike no lock out"
clause of the Collective Bargaining Agreement. Petitioners
respectfully reiterate and humbly submit, that the respondent court
had altogether opined and decided that such demonstration does
not amount to a strike. Hence, with that findings, petitioners should
have been absolved of the charges against them. Nevertheless, the
same respondent court disregarding, its own findings, went out of
bounds by declaring the petitioners as having "bargained in faith."
The stand of the respondent court is fallacious, as it follows the
principle in logic as "non-siquitor";
2) That again respondents wanted to impress that the freedom to
assemble peaceably to air grievances against the duly constituted
authorities as guaranteed in our Constitution is subject to the
limitation of the agreement in the Collective Bargaining Agreement.
The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining
Agreement and such attempt to override the constitutional
provision would be null and void. These fundamental rights of the
petitioners were not taken into consideration in the deliberation of
the case by the respondent court;
Thus, it is clear from the foregoing contentions that petitioners are
not raising any issue of due process. They do not posit that the
decision of the industrial court is null and void on that constitutional
ground. True it is that they fault the respondent court for having
priced the provisions of the collective bargaining agreement herein
involved over and above their constitutional right to peaceably
assemble and petition for redress of their grievances against the
abuses of the Pasig police, but in no sense at all do they allege or
contend that such action affects its jurisdiction in a manner that
renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere
error of judgment rather than that of jurisdiction which the main
opinion projects. For this Court to roundly and indignantly condemn
private respondent now for the grievous violation of the
fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific
issue has not been duly presented to Us and properly argued, is to
my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be
heard in regard to such supposed constitutional transgression.
To be sure, petitioners do maintain, that respondent court
committed an error of jurisdiction by finding petitioners guilty of
bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which
"amounted to a strike", in violation of the Collective Bargaining
Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of
argument, that the trial judge did err in not giving preferential
importance to the fundamental freedoms invoked by the petitioners
over the management and proprietary attributes claimed by the
respondent private firm still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is
that "decisions, erroneous or not, become final after the period
fixed by law; litigations would be endless, no questions would be
finally settled; and titles to property would become precarious if the
losing party were allowed to reopen them at any time in the
future". 3
I only have to add to this that the fact that the error is in the
interpretation, construction or application of a constitutional
precept not constituting a denial of due process, should not make
any difference. Juridically, a party cannot be less injured by an
overlooked or erroneously sanctioned violation of an ordinary
statute than by a misconstrued or constitutional injunction affecting
his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final
judgments. I dare say this must be the reason why, as I have
already noted, the main opinion does not cite any constitutional
provision, law or rule or any judicial doctrine or principle supporting
its basic holding that infringement of constitutional guarantees,
other than denial of due process, divests courts of jurisdiction to
render valid judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is
that "it is one of our (the Supreme Court's) decisional practices that
unless a constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon,
much less have they adequately argued the constitutional issues so
extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to
hold that the erroneous resolution by a court of a constitutional
issue not amounting to a denial of due process renders its judgment
or decision null and void, and, therefore, subject to attack even
after said judgment or decision has become final and executory. I
have actually tried to bring myself into agreement with the views of
the distinguished and learned writer of the main opinion, if only to
avoid dissenting from his well prepared thesis, but its obvious
incongruity with settled jurisprudence always comes to the fore to
stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go
along with petitioners under the authority of our constitutionally
irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines 6 (reenacted practically ipssisimis verbis in Section
5(2) of the 1973 Constitution), only to realize upon further reflection
that the very power granted to us to review decisions of lower
courts involving questions of law(and these include constitutional
issues not affecting the validity of statutes, treaty, executive
agreement, etc.) is not unqualified but has to be exercised only in
the manner provided in the law of the Rules of Court. In other
words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there
must first be a showing of compliance with the applicable
procedural law or rules, among them, those governing appeals from
the Court of Industrial Relations involved herein. Consequently, if by
law or rule, a judgment of the industrial court is already final and
executory, this Court would be devoid of power and authority to
review, much less alter or modify the same, absent any denial of
due process or fatal defect of jurisdiction. It must be borne in mind
that the situation confronting Us now is not merely whether or not
We should pass upon a question or issue not specifically raised by
the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the
real problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated earlier, no less
than Justice Conrado Sanchez, the writer of Chavez,supra., which is
being relied upon by the main opinion, already laid down the
precedent in Elizalde vs. Court, supra, which for its four-square
applicability to the facts of this case, We have no choice but to
follow, that is, that in view of reconsideration but even their
argument supporting the same within the prescribed period, "the
judgment (against them)has become final, beyond recall".
Indeed, when I consider that courts would be useless if the finality
and enforceability of their judgments are made contingent on the
correctness thereof from the constitutional standpoint, and that in
truth, whether or not they are correct is something that is always
dependent upon combined opinion of the members of the Supreme
Court, which in turn is naturally as changeable as the members
themselves are changed, I cannot conceive of anything more
pernicious and destructive to a trustful administration of justice
than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory
judgment of such court may still be set aside or reopened in
instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code. 7 And just to
emphasize the policy of the law of respecting judgments once they
have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors, 8 it is only
when the fraud is extrinsic and not intrinsic that final and executory
judgments may be set aside, 9 and this only when the remedy is
sought within the prescriptive period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin
Kaw, 82 Phil. 776:
Litigation must end and terminate sometime and somewhere, and it
is essential to an effective and efficient administration of justice
that once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to
bring about that result. Constituted as they are to put an end to
controversies, courts should frown upon any attempt to prolong
them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay
v. Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some
definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose
and to do so speedily, certain time limits, more or less arbitrary,
have to be set up to spur on the slothful. 'If a vacillating, irresolute
judge were allowed to thus keep causes ever within his power, to
determine and redetermine them term after term, to bandy his
judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may
change its hues, then litigation might become more intolerable than
the wrongs it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los
Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the
unalterability and invulnerability of final judgments but rather on
the correct interpretation of the contents of the judgment in
question therein. Relevantly to this case at bar, I said then:
The point of res adjudicata discussed in the dissents has not
escaped my attention. Neither am I overlooking the point of the
Chief Justice regarding the dangerous and inimical implications of a
ruling that would authorize the revision, amendment or alteration of
a final and executory judgment. I want to emphasize that my
position in this opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining any such
modifications. The public policy of maintaining faith and respect in
judicial decisions, which inform said doctrines, is admittedly of the
highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should
have been rather than what it is. All I am doing is to view not the
judgment of Judge Tengco but the decision of this Court in G.R. No.
L-20950, as it is and not as I believe it should have been, and, by
opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of
this Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving
cases in the industrial court, wherein the Court refused to be
constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those
decisions, some of which were penned by me. I am certain,
however, that in none of those precedents did this Court disturb a
judgment already final and executory. It too obvious to require
extended elucidation or even reference any precedent or authority
that the principle of immutability of final judgments is not a mere
technicality, and if it may considered to be in a sense a procedural
rule, it is one that is founded on public policy and cannot, therefore,
yield to the ordinary plea that it must give priority to substantial
justice.
Apparently vent on looking for a constitutional point of due process
to hold on, the main opinion goes far as to maintain that the long
existing and constantly applied rule governing the filing of motions
for reconsideration in the Court of Industrial Relations, "as applied
in this case does not implement on reinforce or strengthen the
constitutional rights affected, but instead constricts the same to the
point of nullifying the enjoyment thereof by the petitioning
employees. Said Court on Industrial Relations Rule, promulgated as
it was pursuant to mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and
the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieve workers,
who usually do not have the ready funds to meet the necessary
expenses therefor. In case of the Court of Appeal and the Supreme
Court, a period of fifteen (15) days has been fixed for the filing of
the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec.
1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one
day if September 28, 1969 was not a Sunday. This fact accentuates
the unreasonableness of the Court of Industrial Relations Rule
insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify
the conclusion suggested. Viewed objectively, it can readily be seen
that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies, within five
(5) days from the date on which he receives notice of the order or
decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the
allegations of fact, and serving a copy thereof, personally or by
registered mail, on the adverse party. The latter may file an answer,
in six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court, the
movant shall file same within ten (10) days from the date of the
filing of his motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by him of a
copy of the arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten
(10) days from the receipt of the arguments in support of said
motion having been filed, the motion shall be deemed submitted for
resolution of the Court in banc, unless it is considered necessary to
bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out
of the answer and/or the supporting arguments, as the case may
be. (As amended April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as
everyone acquainted with proceedings in the industrial court well
knows, precisely permits the party aggrieved by a judgment to file
no more than a pro-forma motion for reconsideration without any
argument or lengthy discussion and with barely a brief statement of
the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with
citations laws and authorities, in the written arguments the be filed
(10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does
not agree with the judgment due to fundamental defects stated in
brief and general terms. Evidently, the purpose of this requirement
is to apprise everyone concerned within the shortest possible time
that a reconsideration is to sought, and thereby enable the parties
concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must
borne in mind that cases in the industrial court may involve affect
the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of each party at
every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the
rule is short or inadequate. In fact, the motion filed petitioners was
no more than the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this
Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable Court dated
September 17, 1969 on the ground that the same is not in
accordance with law, evidence and facts adduced during the
hearing of the above entitled case.
Movant-respondents most respectfully move for leave to file their
respective arguments within ten (10) days pursuant to Section 15,
16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing of
such a motion is to me simply incomprehensible. What worse in this
case is that petitioners have not even taken the trouble of giving an
explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered
for such delay is that both the President of the Union and the office
clerk who took charge of the matter forgot to do what they were
instructed to do by counsel, which, according to this Court, as I shall
explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural
requirements prescribed by the Rules of Court". (Philippine Airlines,
Inc. vs. Arca, infra). And yet, very indignantly, the main opinion
would want the Court to overlook such nonchalance and
indifference.
In this connection, I might add that in my considered opinion, the
rules fixing periods for the finality of judgments are in a sense more
substantive than procedural in their real nature, for in their
operation they have the effect of either creating or terminating
rights pursuant to the terms of the particular judgment concerned.
And the fact that the court that rendered such final judgment is
deprived of jurisdiction or authority to alter or modify the same
enhances such substantive character. Moreover, because they have
the effect of terminating rights and the enforcement thereof, it may
be said that said rules partake of the nature also of rules of
prescription, which again are substantive. Now, the twin predicates
of prescription are inaction or abandonment and the passage of
time or a prescribed period. On the other hand, procrastination or
failure to act on time is unquestionably a form of abandonment,
particularly when it is not or cannot be sufficiently explained. The
most valuable right of a party may be lost by prescription, and be
has no reason to complain because public policy demands that
rights must be asserted in time, as otherwise they can be deemed
waived.
I see no justification whatsoever for not applying these self-evident
principles to the case of petitioners. Hence, I feel disinclined to
adopt the suggestion that the Court suspend, for the purposes of
this case the rules aforequoted of the Court of Industrial Relations.
Besides, I have grave doubts as to whether we can suspend rules of
other courts, particularly that is not under our supervisory
jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of
substance justice, this Court did exercise in some instances its re
power to amend its rules, I am positively certain, it has done it for
the purpose of reviving a case in which the judo has already
become final and executory.
Before closing, it may be mentioned here, that as averred their
petition, in a belated effort to salvage their Petitioners filed in the
industrial court on October 31, 1969 a Petition for relief alleging
that their failure to file "Arguments in Support of their Motion for
Reconsideration within the reglementary period or five (5), if not
seven (7), days late "was due to excusable negligence and honest
mistake committed by the President of the respondent Union and
on office clerk of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2) which in brief,
consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of
the said office employee having also coincidentally forgotten "to do
the work instructed (sic) to (him) by Atty. Osorio" because he "was
busy with clerical jobs". No sympathy at all can be evoked these
allegations, for, under probably more justification circumstances,
this Court ruled out a similar explanation previous case this wise:
We find merit in PAL's petition. The excuse offered respondent
Santos as reason for his failure to perfect in due time appeal from
the judgment of the Municipal Court, that counsel's clerk forgot to
hand him the court notice, is the most hackneyed and habitual
subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical
acceptance of this kind of common place excuses, in the face of the
Supreme Court's repeated rulings that they are neither credible nor
constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29
January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a
grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA
300.)
For the reason, therefore, that the judgment of the industrial court
sought to be reviewed in the present case has already become final
and executory, nay, not without the fault of the petitioners, hence,
no matter how erroneous from the constitutional viewpoint it may
be, it is already beyond recall, I vote to dismiss this case, without
pronouncement as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacaang on
March 4, 1969 in protest against alleged abuses of the Pasig police
department, upon two days' prior notice to respondent employer
company, as against the latter's insistence that the first
shift 1 should not participate but instead report for work, under pain
of dismissal, the industrial court ordered the dismissal from
employment of the eight individual petitioners as union officers and
organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on
respondent's complaint of bargaining in bad faith and unfair labor
practice for having so carried out the mass demonstration,
notwithstanding that it concededly was nota declaration of strike
nor directed in any manner against respondent employer, and
ordering the dismissal of the union office manifestly constituted
grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor
practice since respondent firm conceded that "the demonstration is
an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by
cablegram to the company to excuse the first shift and allow it to
join the demonstration in accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective
bargaining agreement's "no-strike" clause as would warrant the
union leaders' dismissal, since as found by respondent court itself
the mass demonstration was not a declaration of a strike, there
being no industrial dispute between the protagonists, but merely
the occurrence of a temporary stoppage of work" to enable the
workers to exercise their constitutional rights of free expression,
peaceable assembly and petition for redress of grievance against
alleged police excesses.
Respondent court's en banc resolution dismissing petitioners'
motion for reconsideration for having been filed two days late, after
expiration of the reglementary five-day period fixed by its rules, due
to the negligence of petitioners' counsel and/or the union president
should likewise be set aside as a manifest act of grave abuse of
discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration
due to such negligence which was not acted upon by respondent
court should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through
their summary dismissal from employment, simply because they
sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of
actual loss from the one-day stoppage of work was shown by
respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having
included the first shift workers in the mass demonstration against
its wishes was but an act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual
petitioners and the constitutional injunction to afford protection to
labor be given true substance and meaning. No person may be
deprived of such basic rights without due process which is but
"responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of
the respondent court and concur in the judgment for petitioners as
set forth in the main opinion.
Footnotes
1 L-7428, May 24, 1955.
2 American Com. vs. Douds, 339 U.S. 382, 421.
3 Justice Cardoso, Nature of Judicial Process, 90-93; Tanada and
Fernando, Constitution of the Philippines, 1952 ed., 71.
4 West Virginia State Board of Education vs. Barnette, 319 U.S. 624,
638, Emphasis supplied.
5 Laski, The State in Theory and Practice, 35-36.
6 See Chafee on Freedom of Speech and Press, 1955, pp. 13-14.
7 Justice Douglas, A Living Bill of Rights (1961), p. 64, cited by
Justice Castro in Chavez v. Court of Appeals, 24 SCRA, 663, 692.
8 March vs. Alabama, 326 U.S. 501, 509; Tucker vs. Texas, 326 U.S.
517, 519-520.
9 NACCP vs. Button (Jan. 14, 1963), 371 U.S. 415, 433, 9 L. Ed. 2nd
405, 418.
10 Terminiello vs. Chicago, 337 U.S. 1.
11 Thomas vs. Collins (1945), 323 U.S., 516, 530, cited by Mr.
Justice Castro in his concurring opinion in Gonzales vs. Comelec,
April 18, 1969, 27 SCRA 835, 895.
12 Edu vs. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481, 489; Ichong
vs. Hernandez, 101 Phil. 1155, 1165-66, 1175.
13 L-27833, April 18, 1969, 27 SCRA 835; L-32432, Sept. 11, 1970,
35 SCRA 28; Ignacio vs. Ela (1965), 99 Phil. 346; Primicias vs.
Fugoso (1948), 80 Phil. 71; Terminiello vs. Chicago, 337 U.S. 1;
Virginia State Board of Education vs. Barnette, 319 U.S. 624, 639;
87 Law. Ed. 1628, 1638.
14 March 9, 1964, 376 U.S. 254, 270; Greenbelt, etc. vs. Bresler
(May 18, 1970), 398 U.S. 6, 20; see also Justice Fernando, Bill of
Rights, 1970 Ed., pp. 78-81, 96-113.
15 Gonzales vs. Comelec, supra.
16 Gonzales vs. Comelec, supra.
17 Dennis vs. U.S. (1951), 341 U.S. 494.
18 March vs. Alabama, 326 U.S. 501; Tucker vs. Texas, 326 U.S. 517.
19 Pickering vs. Board of Education 391 U.S. 563, 574, (1968).
20 Security Bank Employees Union-NATU vs. Security Bank and
Trust Co., April 30, 1968, 23 SCRA 503, 515; Caltex vs. Lucero, April
28, 1962, 4 SCRA 1196, 1198-99; Malayang Manggagawa sa ESSO
vs. ESSO July 30, 1965, 14 SCRA 801,806, 807, De Leon vs. National
Labor Union, 100 Phil., 792; PAFLU vs. Barot, 99 Phil. 1008
Continental Manufacturing Employees Assoc., et. al. vs. C.I.R., et al.,
L-26849, Sept. 30, 1970, 35 SCRA 204.
21 Sotto vs. Ruiz, 41 Phil. 468; Shuttleworth vs. Birmingham (1969),
394 U.S. 147; Largent vs. Texas, 318 U.S. (1943) 418; Jamison vs.
Texas, (1943) 318 U.S. 413; Lovell vs. Griffin (1938) 303 U.S. 444;
Grosjean vs. American Press Co. (1936) 297 U.S. 233; Subido vs.
Ozaeta, 80 Phil., 393; Justice Fernando, Bill of Rights, 1970 Ed., pp.
90-93.
22 Pickering vs. Board of Education, 391 U.S. 563, 574, 20 L. Ed.
2nd, 811, 820.
23 Republic Savings Bank vs. C.I.R. et. al., Sept. 27, 1967, 21 SCRA
226, 232, 233, 661, 662, 663-664, 211 21 SCRA 233.
25 Justice Sanchez in Chavez vs. Court of Appeals, 24 SCRA 663,
692, Aug. 19, 1968; see also concurring opinion of Justice Castro;
Camasura vs. Provost Marshall, 78 Phil. 131.
26 Abriol vs. Homeres, 84 Phil. 525, 1949.
27 Fay vs. Noia 372 U.S. 391 (1963).
28 West Virginia State Board of Education vs. Barnette, supra.
28-a Victorias Milling Co., Inc. vs. W.C.C. L-25665, May 22, 1969, 28
SCRA 285-298.
29 Sec. 20, Com. Act No. 103, as amended.
29a Elizalde & Co., Inc. vs. C.I.R., et. al., September 23, 1968, 25
SCRA 58, 61-63; Bien vs. Castillo, 97 Phil. 956; Pangasinan
Employees, etc. vs. Martinez, May 20, 1960, 108 Phil. 89, Local 7,
etc. vs. Tabigne, Nov. 29, 1960, 110 Phil. 276; Luzon Stevedoring vs.
C.I.R., July 26, 1963, 8 SCRA, 447; Manila Metal, etc. vs. C.I.R., July
31, 1963, 8 SCRA 552.
30 People vs. Vera, 65 Phil. 56, 82; Mercado vs. Go Bio, 48 O.G.
5360.
30-a See Workmen's Ins. Co., Inc. vs. Augusto, L-31060, July 29,
1971, 40 SCRA 123, 127.
30-b Ronquillo vs. Marasigan, L-11621, May 31, 1962, 5 SCRA 304,
312, 312; Ordoveza vs. Raymundo, 63 Phil. 275.
30-c L-30570, July 29, 1969, 28 SCRA 890, 933-34.
30-d 28 SCRA 933-934.
30-e L-28714, June 13, 1970, 33 SCRA 887, 907-908. TEEHANKEE, concurring:

30-f L-27807, Aug. 31, 1970, 34 SCRA 738, 742-3. 1 The first shift comprised the workers from 6 A.M. to 2 P.M.
Respondent company had no objection to the two regular shifts
30-g 34 SCRA 742-743. workers (7 A.M. to 4 P.M. and 8 A.M. to 5 P.M.) being excused from
31 A Living Bill of Rights (1961), pp. 61, 62, 64; 24 SCRA, 690-692; work for the mass demonstration.
Emphasis supplied. 2 Ermita-Malate Hotel Operators Ass'n. vs. City Mayor, 20 SCRA
32 21 SCRA 226-241. Sept. 27, 1967. 849(1967), per Fernando, J.

33 21 SCRA 232-237. G.R. No. 100150 January 5, 1994

BARREDO, dissenting: BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO

ABELARDO, AND GENEROSO OCAMPO, petitioners,
1 25 SCRA 58. vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND
2 86 Phil. 525. OTHERS AS JOHN DOES, respondents.
3 Daquis vs. Bustos, 94 Phil. 913, reiterated in Maramba vs. Lozano, The City Attorney for petitioners.
20 SCRA 474. See also Vicente vs. Lucas, 95 Phil. 716.
The Solicitor General for public respondent.
4 97 Phil. 806, at p. 816.

5 73 Phil. 408.
VITUG, J.:
6 Under which this case was filed.
The extent of the authority and power of the Commission on Human
7 Mauricio vs. Villanueva, 106 Phil. 1159, cited by Moran in Vol. 11, Rights ("CHR") is again placed into focus in this petition for
p. 246 (1970 ed.). prohibition, with prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public respondent CHR
8 Garchitorena vs. Sotelo, 74 Phil. 25.
from further hearing and investigating CHR Case No. 90-1580,
9 Amuran vs. Aquino, 38 Phil. 29; Javier vs. Parades, 52 Phil. 910; entitled "Fermo, et al. vs. Quimpo, et al."
Domingo vs. David, 68 Phil. 134.
The case all started when a "Demolition Notice," dated 9 July 1990,
10 Quion v. Claridad, 74 Phil. 100. signed by Carlos Quimpo (one of the petitioners) in his capacity as
an Executive Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City Mayor, was sent
to, and received by, the private respondents (being the officers and
members of the North EDSA Vendors Association, Incorporated). In
said notice, the respondents were given a grace-period of three (3)
days (up to 12 July 1990) within which to vacate the questioned
premises of North EDSA. 1 Prior to their receipt of the demolition
notice, the private respondents were informed by petitioner Quimpo
that their stalls should be removed to give way to the "People's
Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang
Salaysay) with the CHR against the petitioners, asking the late CHR
Chairman Mary Concepcion Bautista for a letter to be addressed to
then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition
of the private respondents' stalls, sari-sari stores,
and carinderia along North EDSA. The complaint was docketed as
CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order,
directing the petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the vendors/squatters'
complaint before the Commission" and ordering said petitioners to
appear before the CHR. 4
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners
carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia, 5 the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not more
than P200,000.00 in favor of the private respondents to purchase
light housing materials and food under the Commission's
supervision and again directed the petitioners to "desist from
further demolition, with the warning that violation of said order
would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's
jurisdiction. The motion also averred, among other things, that:
1. this case came about due to the alleged violation by the
(petitioners) of the Inter-Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the
moratorium referred to therein refers to moratorium in the
demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office
admitted in its resolution of 1 August 1990 that the complainants
are indeed, vendors;
5. that the complainants (were) occupying government land,
particularly the sidewalk of EDSA corner North Avenue, Quezon
City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive
discretion and authority whether or not a certain business
establishment (should) be allowed to operate within the jurisdiction
of Quezon City, to revoke or cancel a permit, if already issued, upon
grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed
by the petitioners, stating that the Commission's authority should
be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their
privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and
submitted for resolution, along with the contempt charge that had
meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss
was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist",
and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners'
motion to dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional
mandate had jurisdiction over the complaint filed by the squatters-
vendors who complained of the gross violations of their human and
constitutional rights. The motion to dismiss should be and is hereby
DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional)
Commission to create only a paper tiger limited only to
investigating civil and political rights, but it (should) be (considered)
a quasi-judicial body with the power to provide appropriate legal
measures for the protection of human rights of all persons within
the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to
development, to life and to dignity. All these brazenly and violently
ignored and trampled upon by respondents with little regard at the
same time for the basic rights of women and children, and their
health, safety and welfare. Their actions have psychologically
scarred and traumatized the children, who were witness and
exposed to such a violent demonstration of Man's inhumanity to
man.
In an Order, 14 dated 25 April 1991, petitioners' motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June
1991; it was subsequently reinstated, however, in our
resolution 16 of 18 June 1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of
the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of
Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the
vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General
was excused from filing his comment for public respondent CHR.
The latter thus filed its own comment, 18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to
dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163, 20 issued on 5 May
1987, in the exercise of her legislative power at the time. It
succeeded, but so superseded as well, the Presidential Committee
on Human Rights. 21
The powers and functions 22 of the Commission are defined by the
1987 Constitution, thus: to
(1) Investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite
for contempt for violations thereof in accordance with the Rules of
Court;
(3) Provide appropriate legal measures for the protection of human
rights of all persons within the Philippines, as well as Filipinos
residing abroad, and provide for preventive measures and legal aid
services to the underprivileged whose human rights have been
violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other evidence is
necessary or convenient to determine the truth in any investigation
conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by
law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss,
the CHR theorizes that the intention of the members of the
Constitutional Commission is to make CHR a quasi-judicial
body. 23 This view, however, has not heretofore been shared by this
Court. In Cario v. Commission on Human Rights, 24 the Court,
through then Associate Justice, now Chief Justice Andres Narvasa,
has observed that it is "only the first of the enumerated powers and
functions that bears any resemblance to adjudication or
adjudgment," but that resemblance can in no way be synonymous
to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the
fundamental law to be another court or quasi-judicial agency in this
country, or duplicate much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence
and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the end
that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review
as may be provided by law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule, we now
proceed to the other kernel of this controversy and, it is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so
generic a term that any attempt to define it, albeit not a few have
tried, could at best be described as inconclusive. Let us observe. In
a symposium on human rights in the Philippines, sponsored by the
University of the Philippines in 1977, one of the questions that has
been propounded is "(w)hat do you understand by "human rights?"
The participants, representing different sectors of the society, have
given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of
his humanity. They are the same in all parts of the world, whether
the Philippines or England, Kenya or the Soviet Union, the United
States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty,
and property; freedom of speech, of the press, of religion, academic
freedom, and the rights of the accused to due process of law;
political rights, such as the right to elect public officials, to be
elected to public office, and to form political associations and
engage in politics; and social rights, such as the right to an
education, employment, and social services. 25
Human rights are the entitlement that inhere in the individual
person from the sheer fact of his humanity. . . . Because they are
inherent, human rights are not granted by the State but can only be
recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and
cultural rights defined in the Universal Declaration of Human
Rights. 27
Human rights are rights that pertain to man simply because he is
human. They are part of his natural birth, right, innate and
inalienable. 28
The Universal Declaration of Human Rights, as well as, or more
specifically, the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood
to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify
the term to the universally accepted traits and attributes of an
individual, along with what is generally considered to be his
inherent and inalienable rights, encompassing almost all aspects of
life.
Have these broad concepts been equally contemplated by the
framers of our 1986 Constitutional Commission in adopting the
specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back
at the country's experience under the martial law regime which
may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those
voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and
an advocate of civil liberties, who, in his paper, entitled "Present
State of Human Rights in the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in
their Bill of Rights most of the human rights expressed in the
International Covenant, these rights became unavailable upon the
proclamation of Martial Law on 21 September 1972. Arbitrary action
then became the rule. Individuals by the thousands became subject
to arrest upon suspicion, and were detained and held for indefinite
periods, sometimes for years, without charges, until ordered
released by the Commander-in-Chief or this representative. The
right to petition for the redress of grievances became useless, since
group actions were forbidden. So were strikes. Press and other mass
media were subjected to censorship and short term licensing.
Martial law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure,
except members of the Supreme Court. They were required to
submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as
declared by international bodies like Amnesty International and the
International Commission of Jurists.
Converging our attention to the records of the Constitutional
Commission, we can see the following discussions during its 26
August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear
in view of the importance of human rights and also because civil
and political rights have been determined by many international
covenants and human rights legislations in the Philippines, as well
as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we
might diffuse its impact and the precise nature of its task, hence,
its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that
the commission can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and
political rights are very broad. The Article on the Bill of Rights
covers civil and political rights. Every single right of an individual
involves his civil right or his political right. So, where do we draw
the line?
MR. GARCIA. Actually, these civil and political rights have been
made clear in the language of human rights advocates, as well as in
the Universal Declaration of Human Rights which addresses a
number of articles on the right to life, the right against torture, the
right to fair and public hearing, and so on. These are very specific
rights that are considered enshrined in many international
documents and legal instruments as constituting civil and political
rights, and these are precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political
rights as defined in the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International
Covenant of Civil and Political Rights distinguished this right against
torture.
MR. BENGZON. So as to distinguish this from the other rights that
we have?
MR. GARCIA. Yes, because the other rights will encompass social
and economic rights, and there are other violations of rights of
citizens which can be addressed to the proper courts and
authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its
functions, and, therefore, in doing that the commission will be
authorized to take under its wings cases which perhaps heretofore
or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I
correct?
MR. GARCIA. No. We have already mentioned earlier that we would
like to define the specific parameters which cover civil and political
rights as covered by the international standards governing the
behavior of governments regarding the particular political and civil
rights of citizens, especially of political detainees or prisoners. This
particular aspect we have experienced during martial law which we
would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had.
Therefore, what we are really trying to say is, perhaps, at the proper
time we could specify all those rights stated in the Universal
Declaration of Human Rights and defined as human rights. Those
are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights
of our Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the
rights under the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human
rights, I would like to state that in the past regime, everytime we
invoke the violation of human rights, the Marcos regime came out
with the defense that, as a matter of fact, they had defended the
rights of people to decent living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the definition of human rights to
political rights. Is that the sense of the committee, so as not to
confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated
points raised by the previous speaker.
There are actually six areas where this Commission on Human
Rights could act effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the prevention of tortures;
3) fair and public trials; 4) cases of disappearances; 5) salvagings
and hamletting; and 6) other crimes committed against the
religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia
that we should, in order to make the proposed Commission more
effective, delimit as much as possible, without prejudice to future
expansion. The coverage of the concept and jurisdictional area of
the term "human rights". I was actually disturbed this morning
when the reference was made without qualification to the rights
embodied in the universal Declaration of Human Rights, although
later on, this was qualified to refer to civil and political rights
contained therein.
If I remember correctly, Madam President, Commissioner Garcia,
after mentioning the Universal Declaration of Human Rights of
1948, mentioned or linked the concept of human right with other
human rights specified in other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration
of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned
another.
MR. GARCIA. Madam President, the other one is the International
Convention on Civil and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a
copy of the Universal Declaration of Human Rights here, I do not
have a copy of the other covenant mentioned. It is quite possible
that there are rights specified in that other convention which may
not be specified here. I was wondering whether it would be wise to
link our concept of human rights to general terms like "convention,"
rather than specify the rights contained in the convention.
As far as the Universal Declaration of Human Rights is concerned,
the Committee, before the period of amendments, could specify to
us which of these articles in the Declaration will fall within the
concept of civil and political rights, not for the purpose of including
these in the proposed constitutional article, but to give the sense of
the Commission as to what human rights would be included,
without prejudice to expansion later on, if the need arises. For
example, there was no definite reply to the question of
Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific
civil and political rights that we felt must be envisioned initially by
this provision freedom from political detention and arrest
prevention of torture, right to fair and public trials, as well as
crimes involving disappearance, salvagings, hamlettings and
collective violations. So, it is limited to politically related crimes
precisely to protect the civil and political rights of a specific group
of individuals, and therefore, we are not opening it up to all of the
definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the
Gentlemen is no longer linking his concept or the concept of the
Committee on Human Rights with the so-called civil or political
rights as contained in the Universal Declaration of Human Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of
Human Rights, I was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and
every specific article therein, but only to those that pertain to the
civil and politically related, as we understand it in this Commission
on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the
distinction between civil and social rights.
MR. GARCIA. There are two international covenants: the
International Covenant and Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The
second covenant contains all the different rights-the rights of labor
to organize, the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of
the committee to those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of
human rights, I cannot stress more on how much we need a
Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay
and very few lawyers will accept clients who do not pay. And so,
they are the ones more abused and oppressed. Another reason is,
the cases involved are very delicate torture, salvaging, picking
up without any warrant of arrest, massacre and the persons who
are allegedly guilty are people in power like politicians, men in the
military and big shots. Therefore, this Human Rights Commission
must be independent.
I would like very much to emphasize how much we need this
commission, especially for the little Filipino, the little individual who
needs this kind of help and cannot get it. And I think we should
concentrate only on civil and political violations because if we open
this to land, housing and health, we will have no place to go again
and we will not receive any response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the
1987 Constitution, is a provision empowering the Commission on
Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and
political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or
country, or, in wider sense, to all its inhabitants, and are not
connected with the organization or administration of the
government. They include the rights of property, marriage, equal
protection of the laws, freedom of contract, etc. Or, as otherwise
defined civil rights are rights appertaining to a person by virtue of
his citizenship in a state or community. Such term may also refer, in
its general sense, to rights capable of being enforced or redressed
in a civil action.
Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and
seizures, and imprisonment for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to
participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of
government. 34
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates envisioned a
Commission on Human Rights that would focus its attention to the
more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of
political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement
of priority, it is, nonetheless, significant for the tone it has set. In
any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of
investigatorial jurisdiction. They have thus seen it fit to resolve,
instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the
Commission, taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought
to be demolished are the stalls, sari-saristores and carinderia, as
well as temporary shanties, erected by private respondents on a
land which is planned to be developed into a "People's Park". More
than that, the land adjoins the North EDSA of Quezon City which,
this Court can take judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be likewise simply
ignored. It is indeed paradoxical that a right which is claimed to
have been violated is one that cannot, in the first place, even be
invoked, if it is, in fact, extant. Be that as it may, looking at the
standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the
order for the demolition of the stalls, sari-sari stores
and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to
"adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in providing
in its revised rules, its power "to cite or hold any person in direct or
indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the
Rules of Court." That power to cite for contempt, however, should
be understood to apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt
could be exercised against persons who refuse to cooperate with
the said body, or who unduly withhold relevant information, or who
decline to honor summons, and the like, in pursuing its investigative
work. The "order to desist" (a semantic interplay for a restraining
order) in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does not
possess. In Export Processing Zone Authority vs. Commission on
Human Rights, 36 the Court, speaking through Madame Justice
Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for
preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection" may
not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention,
the Constitution would have expressly said so. "Jurisdiction is
conferred only by the Constitution or by law". It is never derived by
implication.
Evidently, the "preventive measures and legal aid services"
mentioned in the Constitution refer to extrajudicial and judicial
remedies (including a writ of preliminary injunction) which the CHR
may seek from proper courts on behalf of the victims of human
rights violations. Not being a court of justice, the CHR itself has no
jurisdiction to issue the writ, for a writ of preliminary injunction may
only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals,
or of the Supreme Court. . . . A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal action,
for the preservation or protection of the rights and interests of a
party thereto, and for no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to any
appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of
P200,000.00 by way of financial aid to the vendors affected by the
demolition is not an appropriate issue in the instant petition. Not
only is there lack of locus standion the part of the petitioners to
question the disbursement but, more importantly, the matter lies
with the appropriate administrative agencies concerned to initially
consider.
The public respondent explains that this petition for prohibition filed
by the petitioners has become moot and academic since the case
before it (CHR Case No. 90-1580) has already been fully heard, and
that the matter is merely awaiting final resolution. It is true that
prohibition is a preventive remedy to restrain the doing of an act
about to be done, and not intended to provide a remedy for an act
already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case No. 90-
1580. The instant petition has been intended, among other things,
to also prevent CHR from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The
Commission on Human Rights is hereby prohibited from further
proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order
heretofore issued by this Court is made permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The Commission
on Human rights, et al.," G.R. No. 96681, 2 December 1991, 204
SCRA 483 in relation to the resolution of 29 January 1991 and my
dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the
considered view that the CHR can issue a cease and desist order to
maintain a status quo pending its investigation of a case involving
an alleged human rights violation; that such cease and desist order
maybe necessary in situations involving a threatened violation of
human rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of
the stalls, sari-sari stores and carinderias as well as the temporary
shanties owned by the private respondents as posing prima facie a
case of human rights violation because it involves an impairment of
the civil rights of said private respondents, under the definition of
civil rights cited by the majority opinion (pp. 20-21) and which the
CHR has unquestioned authority to investigate (Section 18, Art. XIII,
1987 Constitution).
Human rights demand more than lip service and extend beyond
impressive displays of placards at street corners. Positive action and
results are what count. Certainly, the cause of human rights is not
enhanced when the very constitutional agency tasked to protect
and vindicate human rights is transformed by us, from the start,
into a tiger without dentures but with maimed legs to boot. I submit
the CHR should be given a wide latitude to look into and investigate
situations which may (or may not ultimately) involve human rights
violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the
case to the CHR for further proceedings.
# Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The Commission
on Human rights, et al.," G.R. No. 96681, 2 December 1991, 204
SCRA 483 in relation to the resolution of 29 January 1991 and my
dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the
considered view that the CHR can issue a cease and desist order to
maintain a status quo pending its investigation of a case involving
an alleged human rights violation; that such cease and desist order
maybe necessary in situations involving a threatened violation of
human rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of
the stalls, sari-sari stores and carinderias as well as the temporary
shanties owned by the private respondents as posing prima facie a
case of human rights violation because it involves an impairment of
the civil rights of said private respondents, under the definition of
civil rights cited by the majority opinion (pp. 20-21) and which the
CHR has unquestioned authority to investigate (Section 18, Art. XIII,
1987 Constitution).
Human rights demand more than lip service and extend beyond
impressive displays of placards at street corners. Positive action and
results are what count. Certainly, the cause of human rights is not 13 Rollo, p. 46.
enhanced when the very constitutional agency tasked to protect
and vindicate human rights is transformed by us, from the start, 14 Annex "J", pp. 56-57.
into a tiger without dentures but with maimed legs to boot. I submit 15 Rollo, p. 59.
the CHR should be given a wide latitude to look into and investigate
situations which may (or may not ultimately) involve human rights 16 Ibid., p. 66.
violations.
17 Ibid., p. 67.
ACCORDINGLY, I vote to DISMISS the petition and to remand the
case to the CHR for further proceedings. 18 Rollo, pp. 77-88.

#Footnotes 19 Art. XIII, Sec. 17, [1].

1 Rollo, p. 16. 20 DECLARING THE EFFECTIVITY OF THE CREATION OF THE

COMMISSION ON HUMAN RIGHTS AS PROVIDED FOR IN THE 1987
2 Rollo, p. 17. CONSTITUTION, PROVIDING GUIDELINES FOR THE OPERATION
THEREOF, AND FOR OTHER PURPOSES.
3 Ibid., pp. 16-17.
21 Ibid., Sec. 17, [3]; E.O. No. 163, Sec. 4.
4 Ibid., p. 21.
22 Ibid., Sec. 18.
5 Ibid., see also Annex "C-3", Rollo, pp. 102-103.
23 Rollo, p. 45.
6 Ibid., p. 79.
24 204 SCRA 483, 492.
7 Annex "C", Rollo, p. 26.
25 Remigio Agpalo, Roxas Professor of Political Science, University
8 Rollo, pp. 26-27. of the Philippines, Human Rights in the Philippines: An Unassembled
9 Annex "E", Ibid., p. 34. Symposium, 1977, pp. 1-2.

10 Rollo, p. 5. 26 Emerenciana Arcellana, Department of Political Science,

U.P., Ibid., pp. 2-3.
11 Annex "F", Petition, rollo, pp. 36-42.
27 Nick Joaquin, National Artist, Ibid., p. 15.
12 Annex "G", Petition, Rollo, pp. 44-46.
28 Salvador Lopez, Professor, U.P. Law Center, Ibid., p. 20.
29 Submitted to the LAWASIA Human Rights Standing Committee:
Recent Trends in Human Rights, circa, 1981-1982, pp. 47-52.
30 Records of the Constitutional Commission, Volume 3, pp. 722-
723; 731; 738-739.
31 Black's Law Dictionary, Sixth edition, 1324; Handbook of
American Constitutional Law, (4th ed., 1927), p. 524.
32 Malcolm, The Constitutional Law of the Philippine Islands, (2nd
ed., 1926),
pp. 431-457.
33 Black's Law Dictionary, Ibid., p. 1325.
34 Anthony vs. Burrow, 129 F. 783, 789 [1904].
35 Sec. 19, Art. XIII.
36 208 SCRA 125, 131.
37 See Export Processing Zone Authority vs. Commission on Human
Rights,
208 SCRA 125.
38 Cabaero vs. Torres, 61 Phil. 523; Agustin vs. dela Fuente, 84
Phil. 515; Navarro vs. Lardizabal, 25 SCRA 370.
39 See Magallanes vs. Sarita, 18 SCRA 575.
A.M. No. 1120-MJ May 5, 1976
DOMINADOR C. BALDOZA, complainant,
vs.
HON. JUDGE RODOLFO B. DIMAANO, respondent.
RESOLUTION
ANTONIO, J.:
In a verified letter-complaint dated September 9, 1975, the
Municipal Secretary of Taal, Batangas, charges Municipal Judge
Rodolfo B. Dimaano, of the same municipality, with abuse of
authority in refusing to allow employees of the Municipal Mayor to
examine the criminal docket records of the Municipal Court to
secure data in connection with their contemplated report on the
peace and order conditions of the said municipality. Respondent, in
answer to the complaint, stated that there has never been an
intention to refuse access to official court records; that although
court records are among public documents open to inspection not
only by the parties directly involved but also by other persons who
have legitimate interest to such inspection, yet the same is always
subject to reasonable regulation as to who, when, where and how
they may be inspected. He further asserted that a court has
unquestionably the power to prevent an improper use or inspection
of its records and the furnishing of copies therefrom may be refused
where the person requesting is not motivated by a serious and
legitimate interest but acts out of whim or fancy or mere curiosity
or to gratify private spite or to promote public scandal.
In his answer, the respondent significantly observed:
Restrictions are imposed by the Court for fear of an abuse in the
exercise of the right. For fear that the dirty hands of partisan
politics might again be at play, Some of the cases filed and decided
by the Court after the declaration of Martial Law and years after the
election still bore the stigma of partisan politics as shown in the
affidavits and testimonies of witnesses.
Without casting aspersion on any particular individual, it is worth
mentioning, that the padlocks of the door of the Court has recently
been tampered by inserting papers and matchsticks.
Under the circumstances, to allow an indiscriminate and unlimited
exercise of the right to free access, might do more harm than good
to the citizenry of Taal. Disorder and chaos might result defeating
the very essence of their request. The undersigned is just as
interested as Mr. Baldoza in the welfare of the community and the
preservation of our democratic principles.
Be that as it may, a request of this magnitude cannot be
immediately granted without adequate deliberation and upon
advisement, especially so in this case where the undersigned
doubts the propriety of such request. Hence, it is believed that
authority should first be secured from the Supreme Court, through
the Executive Judge, for the formulation of guidelines and policies
on this matter.
The case was thereupon referred to Judge Francisco Mat. Riodique
for investigation and report. At the preliminary hearing on October
16, 1975, Taal Mayor Corazon A. Caniza filed a motion to dismiss
the complaint to preserve harmony and (cooperation among
officers in the same municipality. This motion was denied by the
Investigating Judge, but after formal investigation, he
recommended the exoneration of respondent. Pertinent portion of
his report reads as follows:
* * * When this case was heard, complainant Dominador Baldoza
informed the Court that he is aware of the motion to dismiss filed
by Mayor Corazon A. Caniza and that he is in conformity with the
dismissal of the administrative charge against Judge Rodolfo
Dimaano. The Court asked him if he could prove his case and he
said he can. So, the Court denied his oral motion to dismiss and
required him to present his evidence. Complainant only manifested
to the Court that he has no oral evidence. The only evidence he has
are the exchanged communication which were all in writing and
attached to the record between him and the respondent. The Court
asked the respondent what he has to say on the documentary
evidence of the complainant. He manifested that all his answers to
the complaint are all embodied in his answers filed with the Court.
A careful perusal, scrutiny, and study of the communications
between the complainant and the respondent, together with the
answers filed by the latter, reveal that there is no showing of abuse
of authority on the part of the respondent. The respondent allowed
the complainant to open and view the docket books of the
respondent under certain conditions and under his control and
supervision. Complainant admitted that he was aware of the rules
and conditions imposed by the respondent when he went to his
office to view his docket books for the purpose mentioned in his
communication. He also agreed that he is amenable to such rules
and conditions which the respondent may impose. Under these
conditions, therefore, the Court finds that the respondent has not
committed any abuse of authority.
The complainant was warned to be more cautious in filing any
administrative charge against any public official especially,
members of the judiciary, considering that an administrative charge
against a member of the judiciary may expose the latter to public
ridicule and scandal thereby minimizing if not eradicating public
trust and
After a careful evaluation of the recommendation, We find that the
respondent did not act arbitrarily in the premises. As found by the
Investigating Judge, the respondent allowed the complainant to
open and view the docket books of respondent certain conditions
and under his control and supervision. it has not been shown that
the rules and conditions imposed by the respondent were
unreasonable. The access to public records predicated on the right
of the people to acquire information on matters of public concern.
Undoubtedly in a democracy, the public has a legitimate interest in
matters of social and political significance. In an earlier case, 1 this
Court held that mandamus would lie to compel the Secretary of
Justice and the Register of Deeds to examine the records of the
latter office. Predicating the right to examine the records on
statutory provisions, and to a certain degree by general principles
of democratic institutions, this Court stated that while the Register
of Deeds has discretion to exercise as to the manner in which
persons desiring to inspect, examine or copy the records in his
office may exercise their rights, such power does not carry with it
authority to prohibit. Citing with approval People ex rel.
Title Guarantee & T. Co. vs. Railly, 2 this Court said:
The subject is necessarily committed, to a great degree, 'to his
(register of deeds') discretion as to how much of the conveniences
of the office are required to be preserved for the accomodation of
these persons. It is not his duty to permit the office to be thronged
needlessly with persons examining its books of papers, but it is his
duty to regulate, govern, and control his office in such a manner as
to permit the statutory advantages to be enjoyed by other persons
not employed by him as largely and extensibly as that consistently
can be done * * *. What the law expects and requires from him is
the exercise of an unbiased and impartial judgment, by which all
persons resorting to the office, under legal authority, and
conducting themselves in an orderly manner, shall be secured their
lawful rights and privileges, and that a corporation formed in the
manner in which the relator has been, shall be permitted to obtain
all the information either by searches, abstracts, or copies, that the
law has entitled it to obtain.
Except, perhaps, when it is clear that the purpose of the
examination is unlawful, or sheer, Idle curiosity, we do not believe it
is the duty under the law of registration officers to concern
themselves with the motives, reasons, and objects of the person
seeking access to the records. It is not their prerogative to see that
the information which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it be wrong to
publish the contents of the records, it is the legislature and not the
officials having custody thereof which is called upon to devise a
remedy. As to the moral or material injury which the publication
might inflict on other parties, that is the publisher's responsibility
and lookout. The publication is made subject to the consequences
of the law.
The concurring opinion of Justice Briones predicated such right not
on statutory grounds merely but on the constitutional right of the
press to have access to information as the essence of press
freedom. 3
The New Constitution now expressly recognizes that the people are
entitled to information on matters of public concern and thus are
expressly granted access to official records, as well as documents of
official acts, or transactions, or decisions, subject to such limitations
imposed by law. 4 The incorporation of this right in the Constitution information-fuentes que son de vida o muerte para la prensa pues
is a recognition of the fundamental role of free exchange of de ellas mismas dimana v fluye el jugo esencial de su existencia?"
information in a democracy. There can be no realistic perception by (Sabido v. Ozaeta, supra, p. 394).
the public of the nation's problems, nor a meaningful democratic
decision making if they are denied access to information of general 4 Article IV, Section 6, New Constitution.
interest. Information is needed to enable the members of society to 5 87 Harvard Law Review 1505.
cope with the exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on protection for 6 Ibid., pp. 1518-1519.
both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases. " 5 However, restrictions on
access to certain records may be imposed by law. Thus, access
G.R. No. 171396 May 3, 2006
restrictions imposed to control civil insurrection have been
permitted upon a showing of immediate and impending danger that PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD
renders ordinary means of control inadequate to maintain order. 6 LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
WHEREFORE, the case against respondent is hereby dismissed.
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
Fernando, Actg. C.J., Barredo, Actg.(Chairman), Aquino and Martin vs.
JJ., concur. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
Concepcion Jr., J., is on leave. ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
Footnotes ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
1 Sabido v. Ozaeta, 80 Phil. 383 (1948).
x-------------------------------------x
2 (1886),38 Hun (N.Y.) 429.
G.R. No. 171409 May 3, 2006
3 "Se dice, sin embargo, que esa prohibicion nada tiene que ver con
la libertad de imprenta. Pero pregunto:? de quele sirve a la prensa NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
la libertad si, por otro lado, se le niegan los instrumentos para INC., Petitioners,
ejercer esa libertad, se le cierran las fuentes publicas de vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
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,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.
CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY,
DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO
LOMIBAO, CHIEF PNP,Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
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,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
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,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF
STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF,Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
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.
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 aclear 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 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary
Raul Gonzales stated that political rallies, which to the Presidents
mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced
that "warrantless arrests and take-over of facilities, including
media, can already be implemented."11
Undeterred by the announcements that rallies and public
assemblies would not be allowed, groups of protesters (members
of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA
shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons,
and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against
the protesters marching forward to Cubao, Quezon City and to the
corner of Santolan Street and EDSA. That same evening, hundreds
of riot policemen broke up an EDSA celebration rally held along
Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017
as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-
list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group (CIDG)
of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories
by reporters, documents, pictures, and mock-ups of the Saturday
issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the
building.13
A few minutes after the search and seizure at the Daily
Tribune offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid
Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the
government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards
and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 we will recommend a
takeover." National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He
asked for "balanced reporting" from broadcasters when covering
the events surrounding the coup attempt foiled by the government.
He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened. 14
Also, on February 25, 2006, the police arrested Congressman
Crispin Beltran, representing the Anakpawis Party and Chairman
of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985.
Beltrans lawyer explained that the warrant, which stemmed from a
case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to visit
Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montao, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmarias,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casio and Gabriela Representative
Liza Maza. Bayan Muna Representative Josel Virador was arrested at
the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the
rights of Representatives Beltran, Satur Ocampo,et al., are not
being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that
the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis 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 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of
Article XII of the Constitution.
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:

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et A. PROCEDURAL:

al., alleged that PP 1017 is an "arbitrary and unlawful exercise by
the President of her Martial Law powers." And assuming that PP 1) Whether the issuance of PP 1021 renders the petitions moot and
1017 is not really a declaration of Martial Law, petitioners argued academic.
that "it amounts to an exercise by the President of emergency 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
powers without congressional approval." In addition, petitioners 171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
asserted that PP 1017 "goes beyond the nature and function of a and 171424 (Legarda) have legal standing.
proclamation as defined under the Revised Administrative Code."
B. SUBSTANTIVE:
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda
maintained that PP 1017 and G.O. No. 5 are "unconstitutional for 1) Whetherthe Supreme Court can review the factual bases of PP
being violative of the freedom of expression, including its cognate 1017.
rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under 2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
Article III, Section 4 of the 1987 Constitution." In this regard, she
a. Facial Challenge
stated that these issuances prevented her from fully prosecuting
her election protest pending before the Presidential Electoral b. Constitutional Basis
Tribunal.
c. As Applied Challenge
In respondents Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being A. PROCEDURAL
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
First, we must resolve the procedural roadblocks.
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and
171489 (Cadiz et al.) have no legal standing; third, it is not 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;32third, 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. Jordan41 held
that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed inTileston v. Ullman.43 The same Court
ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he
must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction.
In People v. Vera,44 it held that the person who impugns the validity
of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct
injury as a result." The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate,45 Manila Race
Horse Trainers Association v. De la Fuente,46 Pascual v. Secretary of
Public Works47 and Anti-Chinese League of the Philippines v. Felix. 48
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to
the "far-reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue
under the principle of "transcendental importance." Pertinent
are the following cases:
(1) Chavez v. Public Estates Authority, 52 where the Court ruled
that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the
petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court
held that "given the transcendental importance of the issues
involved, the Court may relax the standing requirements
and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting
Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that 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
63 64
Corporation, and Taada v. Tuvera, 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."1avvphil.net
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 people68but 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.
Baker70 and Montenegro v. Castaneda71 to the volatile era
of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to
which full discretionary authority has been delegated to the
legislative or executive branch of the government." 75Barcelon and
Montenegro were in unison in declaring that the authority to
decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the
authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of
checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
ofLansang was divided in Aquino v. Enrile.77 There, the Court was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question. 78 Then
came 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
83
arbitrariness. 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
91
dictatorship. 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 infree 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,104the 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." InBroadrick 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."106Here, 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 ofSanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is
more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the States extraordinary power to
take over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in
the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is
actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the
military power has been called upon by the executive to assist in
the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment, not commit
any acts which will in any way render more difficult the restoration
of order and the enforcement of law." 113
In his "Statement before the Senate Committee on Justice" on
March 13, 2006, Mr. Justice Vicente V. Mendoza, 114 an authority in
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of
the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be
used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its
nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and
(d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where
there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyos calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on Section
17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the
primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it
that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he
will, among others, "execute its laws." 116 In the exercise of such
function, the President, if needed, may employ the powers attached
to his office as the Commander-in-Chief of all the armed forces of
the country,117 including the Philippine National Police 118 under the
Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction."
\
Petitioners contention is understandable. A reading of PP 1017
operative clause shows that it was lifted 120 from Former President
Marcos Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the
Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my
direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce
obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017
issued by President Arroyo is: to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate
"decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2, Book
III of Executive Order No. 292 (Administrative Code of 1987). She
may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules
of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in
executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate
to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation
is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which
only concern a particular officer or office of the Government shall
be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters
relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies,
bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special
orders.
President Arroyos ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees are
laws which are of the same category and binding force as statutes
because they were issued by the President in the exercise of his
legislative power during the period of Martial Law under the 1973
Constitution.121
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives." To be sure,
neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyos exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs
laws, laws governing family and property relations, laws on
obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees,
orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the
Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the
state of national emergency under PP 1017, can call the military not
only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII
which reads:
Sec. 17. In times of national emergency, when the public interest
so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President
Marcos Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the
management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the
National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present
national emergency."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyos inclusion of Section
17, Article XII in PP 1017 is an encroachment on the legislatures
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority
to declare "a state of national emergency" and
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
130
security.
"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.131This 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
xxxxxx
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
assemblyunder 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 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said
petitioners shows that they resulted from theimplementation,
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
135
misabused 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.138This is logical. Just imagine the absurdity of situations
when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time
ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are "acts and commands of the
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who
issues them and the official who receives them. 139 They are based
on and are the product of, a relationship in which power is their
source, and obedience, their object. 140 For these reasons, one
requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out
the "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated
with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has
yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the
international community as well. The following observations are
quite apropos:
In the actual unipolar context of international relations, the "fight
against terrorism" has become one of the basic slogans when it
comes to the justification of the use of force against certain states
and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and
constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic
interests.
The basic problem underlying all these military actions or threats
of the use of force as the most recent by the United States against
Iraq consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization
of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying "One countrys
terrorist is another countrys freedom fighter." The apparent
contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in
South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists
by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts
the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against
civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate
use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a
state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India,
liberation fighters in that of Pakistan the earlier Contras in
Nicaragua freedom fighters for the United States, terrorists for the
Socialist camp or, most drastically, the Afghani Mujahedeen (later
to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way because of
opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its
actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate"
accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will
therefore speak of a "liberation struggle," not of "terrorism" when
acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state
actor) is labeled in regard to the 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 byreclusion 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 arenecessary and
appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such
acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be
secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police
must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of
arrest.143
In the Brief Account144 submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the
PNP operatives arrested him on the basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was
treated brusquely by policemen who "held his head and tried to
push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours;
and seventh,he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies
petitioner Davids warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that
the arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and their erroneous assumption that petitioner David was the
leader of the rally.146 Consequently, the Inquest Prosecutor ordered
his immediate release on the ground of insufficiency of evidence.
He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge him
with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it
was not even known whether petitioner David was the leader of the
rally.147
But what made it doubly worse for petitioners David et al. is that
not only was their right against warrantless arrest violated, but also
their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil
that Congress has a right to prevent. In other words, like other
rights embraced in the freedom of expression, the right to assemble
is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization
from the government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the use of such
place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right.
As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even
the Solicitor General, during the oral argument, failed to justify the
arresting officers conduct. In De Jonge v. Oregon,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 KMUet al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacaangs directive canceling all permits
previously issued by local government units. This is arbitrary. The
wholesale cancellation of all permits to rally is a blatant disregard of
the principle that "freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear
and present danger that the State may deny the citizens right to
exercise it. Indeed, respondents failed to show or convince the
Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear
and present danger. Here, petitioners were not even notified and
heard on the revocation of their permits. 150 The first time they
learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a persons right is restricted by
government action, it behooves a democratic government to see to
it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet
of freedom of speech i.e., the freedom of the press. Petitioners
narration of facts, which the Solicitor General failed to refute,
established the following: first,the Daily Tribunes offices were
searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25, 2006; fourth,the
search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a strong presence, to tell
media outlets not to connive or do anything that would help
the rebels in bringing down this government." Director
General Lomibao further stated that "if they do not follow the
standards and the standards are if they would contribute
to instability in the government, or if they do not subscribe
to what is in General Order No. 5 and Proc. No. 1017 we
will recommend a takeover." National Telecommunications
Commissioner Ronald Solis urged television and radio networks
to "cooperate" with the government for the duration of the state of
national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times
when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or
any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that
the warrant must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time
of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners freedom of the press.
The best gauge of a free and democratic society rests in the degree
of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were
discontinued.
Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners' freedom to express themselves
in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant
press is essential for the political 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
xxxxxxxxx
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 lawseven
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 ARTEMIO V. PANGANIBAN
1017 declaring national emergency under Section 17, Article VII of Chief Justice
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 (On leave)
LEONARDO A.
legislation. REYNATO S. PUNO
QUISUMBING
Associate Justice
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by Asscociate Justice
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 CONSUELO YNARES-
ANTONIO T. CARPIO
violence." Considering that "acts of terrorism" have not yet been SANTIAGO
Asscociate Justice
defined and made punishable by the Legislature, such portion of Associate Justice
G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the MA. ALICIA AUSTRIA-
dispersal and warrantless arrest of the KMU and NAFLU-KMU RENATO C. CORONA
MARTINEZ
members during their rallies, in the absence of proof that these Asscociate Justice
Associate Justice
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 CONCHITA CARPIO ROMEO J. CALLEJO,
well as the warrantless search of the Tribune offices and whimsical MORALES SR.
seizure of its articles for publication and other materials, are Associate Justice Asscociate Justice
declared UNCONSTITUTIONAL.

No costs.
ADOLFO S. AZCUNA DANTE O. TINGA
SO ORDERED. Associate Justice Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
MINITA V. CHICO- CANCIO C. GARCIA
WE CONCUR: NAZARIO
 6
Ibid.
Associate Justice Asscociate Justice
7
Minutes of the Intelligence Report and Security Group, Philippine
Army, Annex "I" of Respondents Consolidated Comment.
PRESBITERO J. VELASCO, JR.
Associate Justice 8
Respondents Consolidated Comment.
CERTIFICATION 9
Ibid.
Pursuant to Section 13, Article VIII of the Constitution, it is hereby 10
Ibid.
certified that the conclusions in the above Decision were reached in
11
consultation before the case was assigned to the writer of the Petition in G.R. No. 171396, p. 5.
opinion of the Court. 12
Police action in various parts of Metro Manila and the reactions of
ARTEMIO V. PANGANIBAN the huge crowds being dispersed were broadcast as "breaking
Chief Justice news" by the major television stations of this country.
13
Petition in G.R. No. 171400, p. 11.
14
Ibid.
Footnotes 15
The prime duty of the Government is to serve and protect the
1
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. people. The Government may call upon the people to defend the
Clark Lecturer, Volume XIX, 1971, p. 29. State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal military or civil
2
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, service.
February 15, 2006.
16
No person shall be deprived of life, liberty, or property without
3
Articulated in the writings of the Greek philosopher, Heraclitus of due process of law, nor shall any person be denied the equal
Ephesus, 540-480 B.C., who propounded universal impermanence protection of the laws.
and that all things, notably opposites are interrelated.
17
The right of the people to be secure in their persons, houses,
4
Respondents Comment dated March 6, 2006. papers, and effects against unreasonable searches and seizures of
5 whatever nature and for any purpose shall be inviolable, and no
Ibid.
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination and Tresolini, American Constitutional Law, Sixth Edition, 1983, p.
under oath or affirmation of the complainant and the witnesses he 79).
may produce, and particularly describing the place to be searched
24
and the persons or things to be seized. Cruz, Philippine Political Law, 2002 Ed., p. 259.
25
18
No law shall be passed abridging the freedom of speech, of Ibid.
expression, or of the press, or the right of the people peaceably to 26
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004,
assemble and petition the Government for redress of grievances. 429 SCRA 736.
19
(1) The Congress, by a vote of two-thirds of both Houses in joint 27
Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No.
session assembled, voting separately, shall have the sole power to 132795, March 10, 2004, 425 SCRA 129; Vda. De Dabao v. Court of
declare the existence of a state of war. Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma
(2) In times of war or other national emergency, the Congress may, v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415
by law, authorize the President, for a limited period and subject to SCRA 590.
such restrictions as it may prescribe, to exercise powers necessary 28
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos.
and proper to carry out a declared national policy. Unless sooner 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court
withdrawn by resolution of the Congress, such powers shall cease of Appeals, supra.
upon the next adjournment thereof.
29
20
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
In times of national emergency, when the public interest so
requires, the State may, during the emergency and under 30
Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby,
reasonable terms prescribed by it, temporarily take over or direct 118 U.S. 425.
the operation of any privately owned public utility or business
31
affected with public interest. Province of Batangas v. Romulo, supra.
32
21
1 Cranch 137 [1803]. Lacson v. Perez, supra.
33
22
Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Province of Batangas v. Romulo, supra.
Lectures on the Constitution of the United States (Boston: Boston 34
Albaa v. Commission on Elections, G.R. No. 163302, July 23,
University Heffernan Press, 1939), pp. 376-77.
2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2,
23
The Court has no self-starting capacity and must await the action 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No.
of some litigant so aggrieved as to have a justiciable case. (Shapiro 159085, February 3, 2004, 421 SCRA 656.
35 51
Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27,
SCRA 438. where the Court held that where the question is one of public duty
and the enforcement of a public right, the people are the real party
36
G.R. No. 159085, February 3, 2004, 421 SCRA 656. in interest, and it is sufficient that the petitioner is a citizen
37
Blacks Law Dictionary, 6th Ed. 1991, p. 941. interested in the execution of the law;

38
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). Legaspi v. Civil Service Commission, G.R. No. 72119, May 29,
1987, 150 SCRA 530, where the Court held that in cases involving
39
275 Ky 91, 120 SW2d 765 (1938). an assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen and part of
40
19 Wend. 56 (1837). the general public which possesses the right.
41
232 NC 48, 59 SE2d 359 (1950). Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
42 Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the
302 U.S. 633.
Court held that objections to taxpayers lack of personality to sue
43
318 U.S. 446. may be disregarded in determining the validity of the VAT law;
44
65 Phil. 56 (1937). Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264,
where the Court held that while no expenditure of public funds was
45
G.R. No. 117, November 7, 1945 (Unreported). involved under the questioned contract, nonetheless considering its
46 important role in the economic development of the country and the
G.R. No. 2947, January 11, 1959 (Unreported).
magnitude of the financial consideration involved, public interest
47
110 Phil. 331 (1960). was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to
48
77 Phil. 1012 (1947). question it.
49
84 Phil. 368 (1949) The Court held: "Above all, the transcendental Association of Small Landowners in the Philippines, Inc. v.
importance to the public of these cases demands that they be Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175
settled promptly and definitely, brushing aside, if we must, SCRA 343, where the Court ruled that while petitioners are strictly
technicalities of procedure." speaking, not covered by the definition of a "proper party,"
50 nonetheless, it has the discretion to waive the requirement, in
L-No. 40004, January 31, 1975, 62 SCRA 275.
determining the validity of the implementation of the CARP.
 57
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, G.R. No. 132922, April 21, 1998, 289 SCRA 337.
191 SCRA 452, where the Court held that it enjoys the open
58
discretion to entertain taxpayers suit or not and that a member of G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357
the Senate has the requisite personality to bring a suit where a SCRA 756.
constitutional issue is raised. 59
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 60
235 SCRA 506 (1994).
771, where the Court held that petitioner as a taxpayer, has the
personality to file the instant petition, as the issues involved, 61
Supra.
pertains to illegal expenditure of public money;
62
Supra.
Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420,
63
July 30, 1991, 199 SCRA 750, where the Court held that where 197 SCRA 52, 60 (1991).
serious constitutional questions are involved, the "transcendental 64
Supra.
importance" to the public of the cases involved demands that they
be settled promptly and definitely, brushing aside technicalities of 65
See NAACP v. Alabama, 357 U.S. 449 (1958).
procedures;
66
G.R. No. 141284, August 15, 2000, 338 SCRA 81.
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA
67
420, where the Court held that the importance of the issues From the deliberations of the Constitutional Commission, the
involved concerning as it does the political exercise of qualified intent of the framers is clear that the immunity of the President
voters affected by the apportionment, necessitates the brushing from suit is concurrent only with his tenure and not his term. (De
aside of the procedural requirement of locus standi. Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
68
52
G.R. No. 133250, July 9, 2002, 384 SCRA 152. Section 1, Article XI of the Constitution provides: Public Office is a
public trust. Public officers and employees must at all times be
53
G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, accountable to the people, serve them with utmost responsibility,
2000, 342 SCRA 449. integrity, loyalty and efficiency, act with patriotism and justice, and
54
lead modest lives.
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
69
55
Ibid., Sec. 2.
Supra.
70
56
No. 2908, September 30, 2005, 471 SCRA 87.
G.R. No. 118910, November 16, 1995, 250 SCRA 130.
71
91 Phil. 882 (1952). "political questions are not per se beyond the Courts jurisdiction ...
but that as a matter of policy implicit in the Constitution itself the
72
No. L-33964, December 11, 1971, 42 SCRA 448. Court should abstain from interfering with the Executives
73
No. L-35546, September 17, 1974, 59 SCRA 183. Proclamation." (Bernas, The 1987 Constitution of the Republic of
the Philippines: A Commentary, 1996 Edition, p. 794.)
74
No. L-61388, April 20, 1983, 121 SCRA 472. 79
See Separate Opinion of J. Puno in Integrated Bar of the
75
Taada v. Cuenco, 103 Phil. 1051 (1957). Philippines v. Zamora, supra.
80
76
Lansang v. Garcia, supra, pp. 473 and 481. Supra.
81
77
Supra. Cruz, Philippine Political Law, 2002 Ed., p. 247.
82
78
"Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998,
Aquino took the position that the proclamation of martial law and 298 SCRA 756.
the arrest and detention orders accompanying the proclamation 83
posed a "political question" beyond the jurisdiction of the Court. Supra, 481-482.
Justice Antonio, in a separate opinion concurred in by Makasiar, 84
Smith and Cotter, Powers of the President during Crises, 1972, p.
Fernandez, and Aquino, argued that the Constitution had 6.
deliberately set up a strong presidency and had concentrated
85
powers in times of emergency in the hands of the President and had Ibid.
given him broad authority and discretion which the Court was
86
bound to respect. He made reference to the decision in Lansang v. The Social Contract (New York: Dutton, 1950), pp. 123-124.
Garcia but read it as in effect upholding the "political question" 87
Smith and Cotter, Powers of the President during Crises, 1972,
position. Fernandez, in a separate opinion, also argued Lansang, pp. 6-7.
even understood as giving a narrow scope of review authority to the
Court, affirmed the impossible task of checking the action taken by 88
Representative Government, New York, Dutton, 1950, pp. 274,
the President. Hence, he advocated a return to Barcelon v. Baker. 277-78.
Similarly, Esguerra advocated the abandonment of Lansang and a
89
return to Barcelon. And, although Justices Castro, Fernando, Muoz- The Discourses, Bk. 1, Ch. XXXIV.
Palma, and, implicitly, Teehankee, lined up on the side of 90
Smith and Cotter, Powers of the President During Crises, 1972. p.
justiciability as enunciated in Lansang, x x x Barredo, however,
8.
wanted to have the best of both worlds and opted for the view that
91 105
Ibid. Supra.
92 106
See The Problem of Constitutional Dictatorship, p. 328. See Concurring Opinion of Justice Mendoza in Estrada v.
Sandiganbayan, supra.
93
Ibid., p. 353.
107
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
94
Ibid., pp. 338-341.
108
Ibid.
95
Smith and Cotter, Powers of the President During Crises, 1972, p.
109
9. 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v.
Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State
96
Constitutional Government and Democracy, Ch. XXVI, rev. ed., Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
Boston: Ginn & Co., 1949, p. 580.
110
Ermita-Malate Hotel and Motel Operators Association v. City
97
Ibid, pp. 574-584. Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967).
98
Smith and Cotter, Powers of the President During Crises, 1972, p. 111
G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this
10. Court sustained President Arroyos declaration of a "state of
99
Rossiter, Constitutional Dictatorship, Princeton: Princeton rebellion" pursuant to her calling-out power.
University Press, 1948, pp. 298-306. 112
Supra.
100
Smith and Cotter, Powers of the President During Crises, 1972, p. 113
Westel Willoughby, Constitutional Law of the United States 1591
11. [2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974),
101
Smith and Cotter, Powers of the President During Crises, 1972, p. (Fernando, J., concurring)].
12. 114
Retired Associate Justice of the Supreme Court.
102
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. 115
Section 1, Article VII of the Constitution.
Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J. Jackson.
116
Section 5, Article VII of the Constitution.
103
See Concurring Opinion of Justice Mendoza in Estrada v.
117
Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA Section 18, Article VII of the Constitution.
393.
118
Section 6, Article XVI of the Constitution.
104
481 U.S. 739, 95 L. Ed. 2d 697 (1987).
119
See Republic Act No. 6975.
120
Ironically, even the 7th Whereas Clause of PP 1017 which states
that "Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and
the State the primary duty of Government" replicates more closely
Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2
of the 1987 Constitution which provides that, "[t[he prime duty of
the Government is to serve and protect the people."
121
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1,
citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-
Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election,
supra.
122
Section 17, Article XIV of the 1973 Constitution reads: "In times
of national emergency when the public interest so requires, the
State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public
interest."
123
Antieau, Constitutional Construction, 1982, p.21.
124
Cruz, Philippine Political Law, 1998, p. 94.
125
343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
126
Tresolini, American Constitutional Law, 1959, Power of the
President, pp. 255-257.
127
Smith and Cotter, Powers of the President During Crises, 1972, p.
14
128
The Federal Emergency Relief Act of 1933 opened with a
declaration that the economic depressioncreated a serious
emergency, due to wide-spread unemployment and the inadequacy
of State and local relief funds, . . . making it imperative that the
Federal Government cooperate more effectively with the several
States and Territories and the District of Columbia in furnishing
relief to their needy and distressed people. President Roosevelt in
declaring a bank holiday a few days after taking office in 1933
proclaimed that "heavy and unwarranted withdrawals of gold and
currency from banking institutions for the purpose of hoarding; ...
resulting in "sever drains on the Nations stocks of gold have
created a national emergency," requiring his action. Enacted within
months after Japans attack on Pearl Harbor, theEmergency Price
Control Act of 1942 was designed to prevent economic
dislocations from endangering the national defense and security
and the effective prosecution of the war. (Smith and Cotter, Powers
of the President During Crises, 1972, p.18)
129
The Emergency Appropriation Act for Fiscal 1935 appropriated
fund to meet the emergency and necessity for relief in stricken
agricultural areas and in another section referred to "the present
drought emergency."[129] The India Emergency Food Aid Act of
1951 provided for emergency shipments of food to India to meet
famine conditions then ravaging the great Asian sub-continent.
The Communication Act of 1934 and its 1951 amendment grant the
President certain powers in time of "public peril or disaster." The
other statutes provide for existing or anticipated emergencies
attributable to earthquake, flood, tornado, cyclone, hurricane,
conflagration an landslides.[129] There is also a Joint Resolution of
April 1937. It made "funds available for the control of incipient or
emergency outbreaks of insect pests or plant diseases, including
 137
grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v.
1, 1952, Sec. 2 [a]) Supra. Gutberlett, 211 NY 309, 105 NE 548.
130 138
National Security may be cataloged under the heads Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29
of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities S Ct 370.
or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated
139
an attack or series of attacks by an enemy of the United States De Leon and De Leon Jr., Administrative Law, Text and Cases,
which conceivably would cause substantial damage or injury to 2001 Ed., p. 115.
civilian property or persons in the United States by any one of 140
Ibid.
several means; sabotage, the use of bombs, shellfire, or atomic,
radiological, chemical, bacteriological means or other weapons or 141
In a Lecture delivered on March 12, 2002 as part of the Supreme
processes. Such an occurrence would cause a "National Emergency Court Centenary Lecture Series, Hans Koechler, Professor of
for Civil Defense Purposes," or "a state of civil defense emergency," Philosophy at the University of Innsbruck (Austria) and President of
during the term which the Civil Defense Administrator would have the International Progress Organization, speaking on "The United
recourse to extraordinary powers outlined in the Act. The New York- Nations, The International Rule of Law and Terrorism" cited in the
New Jersey Civil Defense Compact supplies an illustration in this Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary,
context for emergency cooperation. "Emergency" as used in this G.R. No. 151445, April 11, 2002, 380 SCRA 739.
compact shall mean and include invasion, or other hostile
142
action, disaster, insurrection or imminent danger thereof. ( Id., Section 2, Article III of the 1987 Constitution.
p.15-16) 143
Bernas, The 1987 Constitution of the Republic of the Philippines,
131
Cruz, Philippine Political Law, 1998, p. 95. A Reviewer-Primer, p. 51.
144
132
Record of the Constitutional Commission, Vol. III, pp. 266-267. Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
145
133
Record of the Constitutional Convention, pp. 648-649. An Act Ensuring the Free Exercise by the People of their Right
Peaceably to Assemble and Petition the Government for Other
134
84 Phil. 368 (1949). Purposes.
135
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173. 146
Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
136
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 147
Ibid.
282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct
148
158. 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
149
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA Fourteen of the 15 SC justices participated in the decision. Senior
553. Associate Justice Reynato S. Puno was on leave.
150
Section 5. Application requirements - All applications for a Justice Angelina Sandoval Gutierrezs 78-page ponencia was
permit shall comply with the following guidelines: concurred in by 10 Justices: Chief Justice Artemio V. Panganiban and
Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago,
xxxxxx Antonio T. Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio
(c) If the mayor is of the view that there is imminent and grave Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-
danger of a substantive evil warranting Nazario, and Cancio C. Garcia.
the denial or modification of the permit, he shall immediately Both the Chief Justice and Justice Ynares-Santiago wrote separate
inform the applicant who must be heard on the matter. concurring opinions. The Chief Justices concurring opinion was
151
Petition in G.R. No. 171400, p. 11. joined by Justices Carpio, Carpio Morales, and Callejo, Sr.

152
No. L-64161, December 26, 1984, 133 SCRA 816. Justice Dante O. Tingas dissenting opinion was joined by Justices
Renato C. Corona and Presbitero J. Velasco, Jr.
153
Dissenting Opinion, J. Cruz, National Press Club v. Commission on
Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 EN BANC
SCRA 1. G.R. No. 171396 DAVID et al. v. ARROYO, etc., et al. and
154
Boyd v. United States, 116 U.S. 616 (1886). related cases (G.R. Nos. 171409, 171483, 171485, 171400,
171424 and 171489)
155
Transcript of Stenographic Notes, Oral Arguments, March 7,
2006, p. 470. Promulgated on:

156
Ibid., pp. 432-433. May 3, 2006

157
Ibid, pp. 507-508. x --------------------------------------------------------------------------- x

158
Smith and Cotter, Powers of the President During Crisis, 1972, p. CONCURRING OPINION
146. CJ:

I was hoping until the last moment of our deliberations on these

SUMMARY OF THE VOTING IN THE PP 1017 DECISION consolidated cases that the Court would be unanimous in its
Decision. After all, during the last two weeks, it decided with one
voice two equally contentious and nationally significant
controversies involving Executive Order No. 4641 and the so-called
Calibrated Preemptive Response policy.2
However, the distinguished Mr. Justice Dante O. Tingas Dissenting
Opinion has made that hope an impossibility. I now write, not only
to express my full concurrence in the thorough and elegantly
written ponencia of the esteemed Mme. Justice Angelina Sandoval-
Gutierrez, but more urgently to express a little comment on Justice
Tingas Dissenting Opinion (DO).
The Dissent dismisses all the Petitions, grants no reliefs to
petitioners, and finds nothing wrong with PP 1017. It labels the PP a
harmless pronouncement -- "an utter superfluity" -- and denounces
the ponencia as an "immodest show of brawn" that "has
imprudently placed the Court in the business of defanging paper
tigers."
Under this line of thinking, it would be perfectly legal for the
President to reissue PP 1017 under its present language and
nuance. I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the
police -- "to some minds" -- "may have flirted with power." With due
respect, this is a masterful understatement. PP 1017 may be a
paper tiger, but -- to borrow the colorful words of an erstwhile Asian
leader -- it has nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits
of presidential prerogatives and the perseverance of this Court in
safeguarding the peoples constitutionally enshrined liberty. They
are playing with fire, and unless prudently restrained, they may one
day wittingly or unwittingly burn down the country. History will
never forget, much less forgive, this Court if it allows such
misadventure and refuses to strike down abuse at its inception.
Worse, our people will surely condemn the misuse of legal hocus
pocus to justify this trifling with constitutional sanctities.
And even for those who deeply care for the President, it is timely
and wise for this Court to set down the parameters of power and to
make known, politely but firmly, its dogged determination to
perform its constitutional duty at all times and against all odds.
Perhaps this country would never have had to experience the
wrenching pain of dictatorship; and a past President would not have
fallen into the precipice of authoritarianism, if the Supreme Court
then had the moral courage to remind him steadfastly of his
mortality and the inevitable historical damnation of despots and
tyrants. Let not this Court fall into that same rut.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Senate v. Ermita, GR No. 169777, April 20, 2006.
2
Bayan v. Ermita, GR No. 169838, April 25, 2006.
EN BANC
G.R. No. 171396 --- Professor Randolf S. David, et x ---------------------------------------------------------------------------------------- x
al., Petitioners, versus Gloria Macapagal-Arroyo, as President
and Commander-in-Chief, et al, Respondents. CONCURRING OPINION

G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune YNARES-SANTIAGO, J.:
Publishing Co., Inc., Petitioners, versus Honorable Secretary The only real security for social well-being is the free exercise of
Eduardo Ermita and Honorable Director General Arturo C. mens minds.
Lomibao, Respondents.
-Harold J. Laski, Professor of Government and Member of the British
G.R. No. 171485 --- Francis Joseph G. Escudero, et Labor Party, in his book, Authority in the Modern State (1919).
al. Petitioners, versus Eduardo R. Ermita, et al.,Respondents.
The ideals of liberty and equality, the eminent U.S. Supreme Court
G.R. No. 171483 --- Kilusang Mayo Uno, represented by its Justice Benjamin Cardozo once wrote, are preserved against the
Chairperson Elmer C. Labog and Secretary General Joel assaults of opportunism, the expediency of the passing hour, the
Maglunsod, et al., Petitioners, versus Her Excellency erosion of small encroachments, the scorn and derision of those
President Gloria Macapagal Arroyo, et al., Respondents. who have no patience with general principles. 1 In an open and
G.R. No. 171400 --- Alternative Law Groups, Inc.. democratic society, freedom of thought and expression is the
(ALG), Petitioners, versus Executive Secretary, Eduardo matrix, the indispensable condition, of nearly every other form of
Ermita, et al., Respondents. freedom.2

G.R. No. 171489 Jose Anselmo I. Cadiz, et al., Petitioners, I share the view that Presidential Proclamation No. 1017 (PP 1017)
under which President Gloria Macapagal Arroyo declared a state of
versus Hon. Executive Secretary Eduardo Ermita, et national emergency, and General Order No. 5 (GO No. 5), issued by
al., Respondents. the President pursuant to the same proclamation are both partly
unconstitutional.
G.R. No. 171424 --- Loren B.
Legarda, Petitioner, versus President Gloria Macapagal- I fully agree with the pronouncement that PP 1017 is no more than
Arroyo, in her capacity as President and Commander-in- the exercise by the President, as the Commander-in-Chief of all
Chief, et al., Respondents; armed forces of the Philippines, of her power to call out such armed
forces whenever it becomes necessary to prevent or
Promulgated: suppress lawless violence, invasion or rebellion. This is allowed
May 3, 2006 under Section 18, Article VII of the Constitution.
However, such "calling out" power does not authorize the President
to direct the armed forces or the police to enforce laws not related
to lawless violence, invasion or rebellion. The same does not allow
the President to promulgate decrees with the force and effect
similar or equal to laws as this power is vested by the Constitution
with the legislature. Neither is it a license to conduct searches and
seizures or arrests without warrant except in cases provided in the
Rules of Court. It is not a sanction to impose any form of prior
restraint on the freedom of the press or expression or to curtail the
freedom to peaceably assemble or frustrate fundamental
constitutional rights.
In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S.
Azcuna emphasized that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. These rights constitute the
very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected.
On the other hand, the direct reference to Section 17, Article XII of
the Constitution as the constitutional basis for the declaration of a
state of national emergency is misplaced. This provision can be
found under the article on National Economy and Patrimony which
presupposes that "national emergency" is of an economic, and not
political, nature. Moreover, the said provision refers to the
temporary takeover by the State of any privately-owned public
utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the
public interest so requires and subject to "reasonable terms" which
the State may prescribe.
The use of the word "State" as well as the reference to "reasonable
terms" under Section 17, Article XII can only pertain to Congress. In
other words, the said provision is not self-executing as to be validly
invoked by the President without congressional authorization. The
provision merely declares a state economic policy during times of
national emergency. As such, it cannot be taken to mean as
authorizing the President to exercise "takeover" powers pursuant to
a declaration of a state of national emergency.
The President, with all the powers vested in her by Article VII,
cannot arrogate unto herself the power to take over or direct the
operation of any privately owned public utility or business affected
with public interest without Congressional authorization. To do so
would constitute an ultra vires act on the part of the Chief
Executive, whose powers are limited to the powers vested in her by
Article VII, and cannot extend to Article XII without the approval of
Congress.
Thus, the Presidents authority to act in times of national
emergency is still subject to the limitations expressly prescribed by
Congress. This is a featured component of the doctrine of
separation of powers, specifically, the principle of checks and
balances as applicable to the political branches of government, the
executive and the legislature.
With regard to GO No. 5, I agree that it is unconstitutional insofar as
it mandates the armed forces and the national police "to prevent
and suppress acts of terrorism and lawless violence in the country."
There is presently no law enacted by Congress that defines
terrorism, or classifies what acts are punishable as acts of terrorism.
The notion of terrorism, as well as acts constitutive thereof, is at
best fraught with ambiguity. It is therefore subject to different
interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of
what constitutes "terrorism" have led the law enforcement officers
to necessarily guess at its meaning and differ as to its application
giving rise to unrestrained violations of the fundamental guarantees
of freedom of peaceable assembly and freedom of the press.
In Kolender v. Lawson,4 the United States Supreme Court nullified a
state statute requiring persons who loitered or wandered on streets
to provide "credible and reliable" identification and to account for
their presence when requested to do so by a police officer. Writing
for the majority, Justice Sandra Day OConnor noted that the most
important aspect of vagueness doctrine was the imposition of
guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for
invocation of that doctrine was of special concern in this case
because of the potential for arbitrary suppression of the
fundamental liberties concerning freedom of speech and
expression, as well as restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of
national emergency as a statement of a factual conditionpursuant
to our ruling in Sanlakas v. Executive Secretary,5 I wish to
emphasize that the same does not grant her any additional powers.
Consequently, while PP 1017 is valid as a declaration of a factual
condition, the provisions which purport to vest in the President
additional powers not theretofore vested in her must be struck
down. The provision under GO No. 5 ordering the armed forces to
carry out measures to prevent or suppress "acts of terrorism" must
be declared unconstitutional as well.
Finally, it cannot be gainsaid that government action to stifle
constitutional liberties guaranteed under the Bill of Rights cannot
be preemptive in meeting any and all perceived or potential threats
to the life of the nation. Such threats must be actual, or at least
gravely imminent, to warrant government to take proper action. To
allow government to preempt the happening of any event would be
akin to "putting the cart before the horse," in a manner of speaking.
State action is proper only if there is a clear and present danger of a
substantive evil which the state has a right to prevent. We should
bear in mind that in a democracy, constitutional liberties must
always be accorded supreme importance in the conduct of daily life.
At the heart of these liberties lies freedom of speech and thought
not merely in the propagation of ideas we love, but more
importantly, in the advocacy of ideas we may oftentimes loathe. As
succinctly articulated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free
speech and assembly. x x x It is the function of speech to free men
from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one. x x x But even
advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short
of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between
advocacy and incitement, between preparation and attempt,
between assembling and conspiracy, must be borne in mind. In
order to support a finding of clear and present danger it must be
shown either that immediate serious violence was to be expected
or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated. 6
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Taada III, Ronald
petitions. Llamas, H. Harry L. Roque, Jr., Joel Ruiz Butuyan, Roger R. Rayel,
Gary S. Mallari, Romel Regalado Bagares, Christopher F.C. Bolastig,
CONSUELO YNARES-SANTIAGO petitioners, v. Gloria Macapagal-Arroyo, as President and
Associate Justice Commander-in-Chief, Executive Secretary Eduardo Ermita, Hon.
Avelino Cruz II, Secretary of National Defense, General Generoso
Senga, Chief of Staff, Armed Forces of the Philippines, Director
General Arturo Lomibao, Chief, Philippine National Police,
Footnotes respondents.)
1
Cardozo, B. Nature of Judicial Process, 1921. G.R. No. 171409 (Niez Cacho-Olivares and Tribune Publishing
Co., Inc., petitioner, v. Honorable Secretary Eduardo Ermita and
2
Palko v. State of Connecticut, 302 U.S. 319 (1937). Honorable Director General Arturo Lomibao, respondents.)
3
G.R. Nos. 169838, 169848, 169881, April 25, 2006. G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago,
4 Teodoro A. Casino, Agapito A. Aquino, Mario G. Aguja, Satur C.
461 U.S. 352 (1983).
Ocampo, Mujiv S. Hataman, Juan Edgardo Angara, Teofisto DL.
5
G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, Guingona III, Emmanuel Josel J. Villanueva, Liza L. Maza, Imee R.
421 SCRA 656. Marcos, Renato B. Magtubo, Justin Marc SB. Chipeco, Roilo Golez,
Darlene Antonio-Custudio, Loretta Ann P. Rosales, Josel G. Virador,
6
Brandeis, J. , joined by Holmes, J., concurring in Whitney v. Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel, Ana
California, 274 U.S. 357 (1927). Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F.
Leonenen, Neri Javier Colmenares, Movement of Concerned Citizens
for Civil Liberties, represented by Amado Gat Inciong, petitioners, v.
Eduardo R. Ermita, Executive Secretary, Avelino J. Cruz, Jr.,
Secretary, DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga,
AFP Chief of Staff, Arturo Lumibao, Chief PNP, respondents.)

G.R. No. 171483 (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, v. Her Excellency,
President Gloria Macapagal-Arroyo, The Honorable Executive
Secretary, Eduardo Ermita, The Chief of Staff, Armed Forces of the
Philippines, Generoso Senga, and the PNP Director General, Arturo
Lomibao, respondents.)
G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner,
v. Executive Secretary Eduardo L. Ermita. Lt. Gen. Generoso Senga,
and Director General Arturo Lomibao, respondents.)
G.R. No. 171489 (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, v. Hon. Executive Secretary Eduardo
Ermita, General Generoso Senga, in his capacity as AFP Chief of
Staff, and Direcotr General Arturo Lomibao, in his capacity as PNP
Chief, respondents.)
G.R. No. 171424 (Loren B. Legarda, petitioner, v. 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 Philippine (AFP); and
Eduardo Ermita, in his capacity as Executive Secretary,
respondents.)
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-x
DISSENTING OPINION
TINGA, J:
I regret to say that the majority, by its ruling today, has imprudently
placed the Court in the business of defanging paper tigers. The
immodest show of brawn unfortunately comes at the expense of an
exhibition by the Court of a fundamental but sophisticated
understanding of the extent and limits of executive powers and
prerogatives, as well as those assigned to the judicial branch. I
agree with the majority on some points, but I cannot join the
majority opinion, as it proceeds to rule on non-justiciable issues
based on fears that have not materialized, departing as they do
from the plain language of the challenged issuances to the extent
of second-guessing the Chief Executive. I respectfully dissent.
The key perspective from which I view these present petitions is my
own ponencia in Sanlakas v. Executive Secretary,1 which centered
on Presidential Proclamation No. 427 (PP 427), declaring a "state of
rebellion" in 2003. The Court therein concluded that while the
declaration was constitutional, such declaration should be regarded
as both regarded as "an utter superfluity", which "only gives notice
to the nation that such a state exists and that the armed forces
may be called to prevent or suppress it", and "devoid of any legal
significance", and "cannot diminish or violate constitutionally
protected rights." I submit that the same conclusions should be
reached as to Proclamation No. 1017 (PP 1017). Following the
cardinal precept that the acts of the executive are presumed
constitutional is the equally important doctrine that to warrant
unconstitutionality, there must be a clear and unequivocal breach
of the Constitution, not a doubtful and argumentative
implication.2 Also well-settled as a rule of construction is that where
thee are two possible constructions of law or executive issuance
one of which is in harmony with the Constitution, that construction
should be preferred.3 The concerns raised by the majority relating
to PP 1017 and General Order Nos. 5 can be easily disquieted by
applying this well-settled principle.
I.
PP 1017Has No Legal Binding Effect; Creates No Rights and
Obligations; and Cannot Be Enforced or Invoked in a Court< Of Law
First, the fundamentals. The President is the Chief of State and
Foreign Relations, the chief of the Executive Branch, 4 and the
Commander-in-Chief of the Armed Forces. 5 The Constitution vests
on the President the executive power. 6 The President derives these
constitutional mandates from direct election from the people. The
President stands as the most recognizable representative symbol of
government and of the Philippine state, to the extent that foreign
leaders who speak with the President do so with the understanding
that they are speaking to the Philippine state.
Yet no matter the powers and prestige of the presidency, there are
significant limitations to the office of the President. The President
does not have the power to make or legislate laws, 7 or disobey
those laws passed by Congress. 8 Neither does the President have to
power to create rights and obligations with binding legal effect on
the Filipino citizens, except in the context of entering into
contractual or treaty obligations by virtue of his/her position as the
head of State. The Constitution likewise imposes limitations on
certain powers of the President that are normally inherent in the
office. For example, even though the President is the administrative
head of the Executive Department and maintains executive control
thereof,9 the President is precluded from arbitrarily terminating the
vast majority of employees in the civil service whose right to
security of tenure is guaranteed by the Constitution. 10
The President has inherent powers,11 powers expressly vested by
the Constitution, and powers expressly conferred by statutes. The
power of the President to make proclamations, while confirmed by
statutory grant, is nonetheless rooted in an inherent power of the
presidency and not expressly subjected to constitutional limitations.
But proclamations, as they are, are a species of issuances of
extremely limited efficacy. As defined in the Administrative Code,
proclamations are merely "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".12 A proclamation, on its own, cannot create or
suspend any constitutional or statutory rights or obligations. There
would be need of a complementing law or regulation referred to in
the proclamation should such act indeed put into operation any law
or regulation by fixing a date or declaring a status or condition of a
public moment or interest related to such law or regulation. And
should the proclamation allow the operationalization of such law or
regulation, all subsequent resultant acts cannot exceed or
supersede the law or regulation that was put into effect.
Under Section 18, Article VII of the Constitution, among the
constitutional powers of the President, as Commander-in-Chief, is to
"call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion".13 The existence of invasion or rebellion could
allow the President to either suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under
martial law, but there is a fairly elaborate constitutional procedure
to be observed in such a case, including congressional affirmation
or revocation of such suspension or declaration, as well as the
availability of judicial review. However, the existence of lawless
violence, invasion or rebellion does not ipso facto cause the "calling
out" of the armed forces, the suspension of habeas corpus or the
declaration of martial law it remains within the discretion of the These were the premises that ultimately informed the Courts
President to engage in any of these three acts should said decision in Sanlakas, which affirmed the declaration of a "state of
conditions arise. rebellion" as within the "calling out" power of the President, but
which emphasized that for legal intents and purposes, it should be
Sanlakas involved PP 427, which declared the existence of a "state both regarded as "an utter superfluity", which "only gives notice to
of rebellion." Such declaration could ostensibly predicate the the nation that such a state exists and that the armed forces may
suspension of the privilege of the writ of habeas corpus or the be called to prevent or suppress it," and "devoid of any legal
declaration of martial law, but the President did not do so. Instead, significance," as it could not "cannot diminish or violate
PP 427, and the accompanying General Order No. 4, invoked the constitutionally protected rights." The same premises apply as to PP
"calling out" of the Armed Forces to prevent lawless violence, 1017.
invasion and rebellion. Appreciably, a state of lawless violence,
invasion or rebellion could be variable in scope, magnitude and A comparative analysis of PP 427 and PP 1017, particularly their
gravity; and Section 18, Article VII allows for the President to operative clauses, is in order.
respond with the appropriate measured and proportional response.
PP 427 PP 1017
Indeed, the diminution of any constitutional rights through the
suspension of the privilege of the writ or the declaration of martial
law is deemed as "strong medicine" to be used sparingly and only NOW, THEREFORE, I, NOW, THEREFORE, I Gloria
as a last resort, and for as long as only truly necessary. Thus, the GLORIA MACAPAGAL- Macapagal-Arroyo, President
mere invocation of the "calling out" power stands as a balanced ARROYO, by virtue of the of the Republic of the
means of enabling a heightened alertness in dealing with the armed powers vested in me by law, Philippines and Commander-
threat, but without having to suspend any constitutional or hereby confirm the in-Chief of the Armed Forces
statutory rights or cause the creation of any new obligations. For existence of an actual and of the Philippines, by virtue
the utilization of the "calling out" power alone cannot vest unto the on-going rebellion, of the powers vested upon
President any new constitutional or statutory powers, such as the compelling me to declare a me by Section 18, Article 7
enactment of new laws. At most, it can only renew emphasis on the state of rebellion. of the Philippine
duty of the President to execute already existing laws without Constitution which states
In view of the foregoing, I that: "The President. . .
extending a corresponding mandate to proceed extra-
am issuing General Order whenever it becomes
constitutionally or extra-legally. Indeed, the "calling out" power
No. 4 in accordance with necessary, . . . may call out
does not authorize the President or the members of the Armed
Section 18, Article VII of the (the) armed forces to
Forces to break the law.
Constitution, calling out the
 suspension of the privilege of the writ of habeas corpus or the
Armed Forces of the prevent or suppress. . . declaration of martial law, though in accordance with the strict
Philippines and the rebellion. . .," and in my guidelines under the same provision. Under Section 17, Article XII,
Philippine National Police to capacity as their the existence of a state of national emergency is sufficient ground
immediately carry out the Commander-in-Chief, do for the State, during the emergency, under reasonable terms
necessary actions and hereby command the Armed prescribed by it, and when the public interest so requires, to
measures to suppress and Forces of the Philippines, to temporarily take over or direct the operation of any privately-owned
quell the rebellion with due maintain law and order public utility or business affected with public interest. Under Section
regard to constitutional throughout the Philippines, 23(2), Article VI, the existence of a state of national emergency
rights. prevent or suppress all may also allow Congress to authorize the President, for a limited
forms of lawless violence as period and subject to such restrictions as it may prescribe, to
well any act of insurrection exercise powers necessary and proper to carry out a declared
or rebellion and to enforce national policy.
obedience to all the laws
and to all decrees, orders Certainly, the declaration could stand as the first step towards
and regulations constitutional authorization for the exercise by the President, the
promulgated by me Congress or the State of extraordinary powers and prerogatives.
personally or upon my However, the declaration alone cannot put into operation these
direction; and as provided in extraordinary powers and prerogatives, as the declaration must be
Section 17, Article 12 of the followed through with a separate act providing for the actual
Constitution do hereby utilization of such powers. In the case of the "state of rebellion,"
declare a State of National such act involves the suspension of the writ or declaration of
Emergency. martial law. In the case of the "state of national emergency," such
act involves either an order for the takeover or actual takeover by
the State of public utilities or businesses imbued with public
Let us begin with the similarities. Both PP 427 and PP 1017 are interest or the authorization by Congress for the President to
characterized by two distinct phases. The first is the declaration exercise emergency powers.
itself of a status or condition, a "state of rebellion" in PP 437, and a
"state of national emergency" under PP 1017. Both "state of In PP 427, the declaration of a "state of rebellion" did not lead to
rebellion" and "state of national emergency" are terms within the suspension of the writ or the declaration of martial law. In PP
constitutional contemplation. Under Section 18, Article VII, the 1017, the declaration of a "state of national emergency" did not
existence of a "state of rebellion" is sufficient premise for either the lead to an authorization for the takeover or actual takeover of any
utility or business, or the grant by Congress to the President of
emergency powers. Instead, both declarations led to the invocation
of the calling out power of the President under Section 18, Article
VII, which the majority correctly characterizes as involving only
"ordinary police action."
I agree with the ponencias holding that PP 1017 involves the
exercise by the President of the "calling out" power under Section
18, Article VII. In Integrated Bar v. Zamora,14 the Court was
beseeched upon to review an order of President Estrada
commanding the deployment of the Marines in patrols around Metro
Manila, in view of an increase in crime. 15 The Court, speaking
through Justice Santiago Kapunan, affirmed the Presidents order,
asserting that "it is the unclouded intent of the Constitution to vest
upon the President, as Commander-in-Chief of the Armed Forces,
full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the Presidents
exercise of judgment deserves to be accorded respect from this
Court."16 Tellingly, the order of deployment by President Estrada
was affirmed by the Court even though we held the view that the
power then involved was not the "calling out" power, but "the
power involved may be no more than the maintenance of peace
and order and promotion of the general welfare." 17
It was also maintained in Integrated Bar that while Section 18,
Article VII mandated two conditions actual rebellion or invasion
and the requirement of public safety before the suspension of the
privilege of the writ ofhabeas corpus or the declaration of martial
law could be declared, "these conditions are not required in the
case of the power to call out the armed forces. The only criterion is
that whenever it becomes necessary, the President may call the
armed forces to suppress lawless violence, invasion or
rebellion."18 The Court concluded that the implication was "that the
President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers." 19
These propositions were affirmed in Sanlakas, wherein the
invocation of the calling out power was expressly made by
President Arroyo. The Court noted that for the purpose of exercising
the calling out power, the Constitution did not require the President
to make a declaration of a state of rebellion. 20 At the same time, the
Court in Sanlakas acknowledged that "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."21
For still unclear reasons, the majority attempts to draw a distinction
between Sanlakas and the present petitions by that the statutory
authority to declare a "state of rebellion" emanates from the
Administrative Code of 1987, particularly the provision authorizing
the President to make proclamations. As such, the declaration of a
"state of rebellion," pursuant to statutory authority, "was merely an
act declaring a status or condition of public moment or interest."
The majority grossly misreads Sanlakas, which expressly roots the
declaration of a state of rebellion from the wedded powers of the
Chief Executive, under Section 1, Article VII, and as Commander-in-
Chief, under Section 18, Article VII.
Insofar as PP 1017 is concerned, the calling out power is definitely
involved, in view of the directive to the Armed Forces of the
Philippines to "suppress all forms of lawless violence". But there are
nuances to the calling out power invoked in PP 1017 which the
majority does not discuss. The directive "to suppress all forms of
lawless violence" is addressed not only to the Armed Forces but to
the police as well. The "calling out" of the police does not derive
from Section 17, Article VII, or the commander-in-chief clause, our
national police being civilian in character. Instead, the calling out of
the police is sourced from the power of the President as Chief
Executive under Section 1, Article VII, and the power of executive
control under Section 18, Article VII. Moreover, while the
permissible scope of military action is limited to acts in furtherance
of suppressing lawless violence, rebellion, invasion, the police can
be commanded by the President to execute all laws without
distinction in light of the presidential duty to execute all laws. 22
constitutional or extra-legal acts in the name of PP 1017
may be subjected to the appropriate civil, criminal or
administrative liability.
To prove this point, let us now compare PP 1017 with a different
presidential issuance, one that was intended to diminish
constitutional and civil rights of the people. The said issuance,
Presidential Proclamation No. 1081, was issued by President Marcos
in 1972 as the instrument of declaring martial law. The operative
provisions read:
PD. 1081 PP 1017

Still, insofar as Section 17, Article VII is concerned, wide latitude is

Now, thereof, I, Ferdinand E. NOW, THEREFORE, I Gloria
accorded to the discretion of the Chief Executive in the exercise of
Marcos, President Of the Macapagal-Arroyo, President
the "calling out" power due to a recognition that the said power is
Philippines, by virtue of the of the Republic of the
of limited import, directed only to the Armed Forces of the
powers vested upon me by Philippines and Commander-
Philippines, and incapable of imposing any binding legal effect on
article VII, Section 10, in-Chief of the Armed Forces
the citizens and other branches of the Philippines. Indeed, PP 1017
Paragraph (2) of the of the Philippines, by virtue
does not purport otherwise. Nothing in its operative provisions
Constitution, do hereby of the powers vested upon
authorize the President, the Armed Forces of the Philippines, or any
place the entire Philippines me by Section 18, Article 7
officer of the law, to perform any extra-constitutional or extra-legal
as defined in the article I, of the Philippine
acts. PP 1017 does not dictate the suspension of any of the peoples
Section 1, of the Constitution which states
guarantees under the Bill of Rights.
Constitution under martial that: "The President. . .
If it cannot be made more clear, neither the declaration of a law, and in my capacity as whenever it becomes
state of emergency under PP 1017 nor the invocation of the their commander-in-chief, necessary, . . . may call out
calling out power therein authorizes warrantless arrests, do hereby command the (the) armed forces to
searches or seizures; the infringement of the right to free arned forces of the prevent or suppress. . .
expression, peaceable assembly and association and other Philippines, to maintain law rebellion. . .," and in my
constitutional or statutory rights. Any public officer who and order throughout the capacity as their
nonetheless engaged or is engaging in such extra-
Philippines, prevent or Commander-in-Chief, do usurpation of authority,
suppress all forms of lawless hereby command the Armed rank, title and improper use
violence as well as any act Forces of the Philippines, to of names, uniforms and
of insurrection or rebellion maintain law and order insignia, crimes committed
and to enforce obedience to throughout the Philippines, by public officers, and for
all the laws and decrees, prevent or suppress all such other crimes as will be
orders and regulations forms of lawless violence as enumerated in Orders that I
promulgated by me well any act of insurrection shall subsequently
personally or upon my or rebellion and to enforce promulgate, as well as
direction. obedience to all the laws crimes as a consequence of
and to all decrees, orders any violation of any decree,
In addition, I do hereby and regulations order or regulation
order that all persons promulgated by me promulgated by me
presently detained, as well personally or upon my personally or promulgated
as others who may direction; and as provided in upon my direction shall be
hereafter be similarly Section 17, Article 12 of the kept under detention until
detained for the crimes of Constitution do hereby otherwise ordered released
insurrection or rebellion, and declare a State of National by me or by my duly
all other crimes and Emergency. designated representative.
offenses committed in (emphasis supplied)
furtherance or on the
occasion thereof, or incident
thereto, or in connection Let us examine the differences between PP No. 1081 and PP 1017.
therewith, for crimes First, while PP 1017 merely declared the existence of a state of
against national security rebellion, an act ultimately observational in character, PP 1081
and the law of nations, "placed the entire Philippines under martial law," an active
crimes, against the implement23 that, by itself, substituted civilian governmental
fundamental laws of the authority with military authority. Unlike in the 1986 Constitution,
state, crimes against public which was appropriately crafted with an aversion to the excesses of
order, crimes involving Marcosian martial rule, the 1935 Constitution under which PP 1081
was issued left no intervening safeguards that tempered or limited
the declaration of martial law. Even the contrast in the verbs used,
"place" as opposed to "declare," betrays some significance. To
declare may be simply to acknowledge the existence of a particular
condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual
condition even if it did not exist before.
Both PP 1081 and PP 1017 expressly invoke the calling out power.
However, the contexts of such power are wildly distaff in light of PP
1081s accompanying declaration of martial law. Since martial law
involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is
significantly greater than the one involved in PP 1017, which could
only contemplate the enforcement of existing laws in relation to the
suppression of lawless violence, rebellion or invasion and the
maintenance of general peace and order.
Further proof that PP 1081 intended a wholesale suspension of civil
liberties in the manner that PP 1017 does not even ponder upon is
the subsequent paragraph cited, which authorizes the detention
and continued detention of persons for a plethora of crimes not only
directly related to the rebellion or lawless violence, but of broader
range such as those "against national security," or "public order."
The order of detention under PP 1081 arguably includes every crime
in the statute book. And most alarmingly, any person detained by
virtue of PP 1081 could remain in perpetual detention unless
otherwise released upon order of President Marcos or his duly
authorized representative.
Another worthy point of contrast concerns how the Supreme Court,
during the martial law era, dealt with the challenges raised before it
to martial law rule and its effects on civil liberties. While martial law
stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and
liberties could have stood ground against even the most
fundamental of human rights abuses ostensibly protected under the
1935 and 1973 constitutions and under international declarations
and conventions. Yet a perusal of Aquino v. Enrile, 24 the case that
decisively affirmed the validity of martial law rule, shows that most
of the Justices then sitting exhibited diffidence guised though as
deference towards the declaration of martial law. Note these few
excerpts from the several opinions submitted in that case which
stand as typical for those times:
The present state of martial law in the Philippines is peculiarly
Filipino and fits into no traditional patterns or judicial precedents.
xxx In the first place I am convinced (as are the other Justices),
without need of receiving evidence as in an ordinary adversary
court proceeding, that a state of rebellion existed in the country
when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the courts
but of all observant people residing here at that time. xxx The state
of rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are
none in other regions except in isolated pockets in Luzon, and that
therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of
rebellion in a modern setting. It does not consist simply of armed
clashes between organized and identifiable groups on fields of their
own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no
actual fighting. Underground propaganda, through printed
newssheets or rumors disseminated in whispers; recruiting of
armed and ideological adherents, raising of funds, procurement of
arms and materiel, fifth-column activities including sabotage and
intelligence all these are part of the rebellion which by their
nature are usually conducted far from the battle fronts. They cannot
be counteracted effectively unless recognized and dealt with in that
context.25
xxx
[T]he fact that courts are open cannot be accepted as proof that the
rebellion and insurrection, which compellingly called for the
declaration of martial law, no longer imperil the public safety. Nor
are the many surface indicia adverted to by the petitioners (the
increase in the number of tourists, the choice of Manila as the site
of international conferences and of an international beauty contest)
to be regarded as evidence that the threat to public safety has
abated. There is actual armed combat, attended by the somber
panoply of war, raging in Sulu and Cotabato, not to mention the
Bicol region and Cagayan Valley. I am hard put to say, therefore,
that the Governments claim is baseless.
I am not insensitive to the plea made here in the name of individual
liberty. But to paraphrase Ex parte Moyer, if it were the liberty alone
of the petitioner Diokno that is in issue we would probably resolve
the doubt in his favor and grant his application. But the Solicitor
General, who must be deemed to represent the President and the
Executive Department in this case, has manifested that in the
Presidents judgment peace and tranquility cannot be speedily
restored in the country unless the petitioners and others like them
meantime remain in military custody. For, indeed, the central
matter involved is not merely the liberty of isolated individuals, but
the collective peace, tranquility and security of the entire nation. 26
xxx
It may be that the existence or non-existence or imminence of a
rebellion of the magnitude that would justify the imposition of
martial law is an objective fact capable of judicial notice, for a
rebellion that is not of general knowledge to the public cannot
conceivably be dangerous to public safety. But precisely because it
is capable of judicial notice, no inquiry is needed to determine the
propriety of the Executives action.
Again, while the existence of a rebellion may be widely known, its
real extent and the dangers it may actually pose to the public
safety are not always easily perceptible to the unpracticed eye. In
the present day practices of rebellion, its inseparable subversion
aspect has proven to be more effective and important than "the
rising (of persons) publicly and taking arms against the
Government" by which the Revised Penal Code characterizes
rebellion as a crime under its sanction. Subversion is such a covert
kind of anti-government activity that it is very difficult even for
army intelligence to determine its exact area of influence and
effect, not ot mention the details of its forces and resources. By
subversion, the rebels can extend their field of action unnoticed
even up to the highest levels of the government, where no one can
always be certain of the political complexion of the man next to
him, and this does not exclude the courts. Arms, ammunition and all
kinds of war equipment travel and are transferred in deep secrecy
to strategic locations, which can be ones neighborhood without him
having any idea of what is going on. There are so many insidious
ways in which subversives act, in fact too many to enumerate, but
the point that immediately suggests itself is that they are mostly
incapable of being proven in court, so how are We to make a judicial
inquiry about them that can satisfy our judicial conscience.
The Constitution definitely commits it to the Executive to determine
the factual bases and to forthwith act as promptly as possible to
meet the emergencies of rebellion and invasion which may be
crucial to the life of the nation. He must do this with unwavering
conviction, or any hesitancy or indecision on his part will surely
detract from the needed precision in his choice of the means he
would employ to repel the aggression. The apprehension that his
decision might be held by the Supreme Court to be a transgression
of the fundamental law he has sworn to defend and preserve
would deter him from acting when precisely it is most urgent and
critical that he should act, since the enemy is about to strike the
mortal blow.27
xxx
To start with, Congress was not unaware of the worsening
conditions of peace and order and of, at least, evident insurgency,
what with the numerous easily verifiable reports of open rebellious
activities in different parts of the country and the series of rallies
and demonstrations, often bloody, in Manila itself and other centers
of population, including those that reached not only the portals but
even the session hall of the legislature, but the legislators seemed
not to be sufficiently alarmed or they either were indifferent or did
not know what to do under the circumstances. Instead of taking
immediate measures to alleviate the conditions denounced and
decried by the rebels and the activists, they debated and argued
long on palliatives without coming out with anything substantial
much less satisfactory in the eyes of those who were seditiously
shouting for reforms. In any event, in the face of the inability of
Congress to meet the situation, and prompted by his appraisal of a
critical situation that urgently called for immediate action, the only
alternative open to the President was to resort to the other
constitutional source of extraordinary powers, the Constitution
itself.28
xxx
Proclamation 1081 is in no sense any more constitutionally
offensive. In fact, in ordering detention of persons, the Proclamation
pointedly limits arrests and detention only to those "presently
detained, as well as others who may hereafter be similarly detained
for the crimes of insurrection or rebellion, and all other crimes and
offences committed in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith, for crimes against
national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes
involving usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public officers,
and for such other crimes as will be enumerated in Orders that I
shall subsequently promulgate, as well as crimes as a consequence
of any violation of any decree, order or regulation promulgated by
me personally or promulgated upon my direction." Indeed, even in
the affected areas, the Constitution has not been really suspended
much less discarded. As contemplated in the fundamental law itself,
it is merely in a state of anaesthesia, to the end that the much
needed major surgery to save the nations life may be successfully
undertaken.29
xxx
The quoted lines of reasoning can no longer be sustained, on many
levels, in these more enlightened times. For one, as a direct
reaction to the philosophy of judicial inhibition so frequently
exhibited during the Marcos dictatorship, our present Constitution
has explicitly mandated judicial review of the acts of government as
part of the judicial function. As if to rebuff Aquino, the 1987
Constitution expressly allows the Supreme Court to review the
sufficiency of the factual basis of the proclamation of martial law
and decide the same within 30 days from the filing of the
appropriate case.30 The Constitution also emphasizes that a state of
martial law did not suspend the operation of the Constitution or
supplant the functioning of the judicial and legislative
branches.31 The expediency of hiding behind the political question
doctrine can no longer be resorted to.
For another, the renewed emphasis within domestic and
international society on the rights of people, as can be seen in
worldwide democratic movements beginning with our own in 1986,
makes it more difficult for a government established and governed
under a democratic constitution, to engage in official acts that run
contrary to the basic tenets of democracy and civil rights. If a
government insists on proceeding otherwise, the courts will stand in
defense of the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of national
governmental instrumentalities, and the principle of republicanism
all ensure that the constitutional government retains significant
powers and prerogatives, for it is through such measures that it can
exercise sovereign will in behalf of the people. Concession to those
presidential privileges and prerogatives should be made if due. The
abuses of past executive governments should not detract from
these basic governmental powers, even as they may warrant a
greater degree of wariness from those institutions that balance
power and the people themselves. And the rule of law should
prevail above all. The damage done by martial rule was not merely
personal but institutional, and the proper rebuke to the caprices
and whims of the iniquitous past is to respect the confines of the
restored rule of law.32
Nothing in PP 1017, or any issuance by any President since Aquino,
comes even close to matching PP 1081. It is a rank insult to
those of us who suffered or stood by those oppressed under
PP 1081 to even suggest that the innocuous PP 1017 is of
equivalent import.
PP 1017 Does Not Purport or Pretend that the President Has The
Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017
and PP 1081, harped upon by some of the petitioners and alluded to
by the majority. PP 1017 contains a command to the Armed Forces
"to enforce obedience to all the laws and to all decrees, orders and
regulations by [the President]". A similar command was made under
PP 1081. That in itself should not be a cause of surprise, since both
PP 1017 and PP 1081 expressly invoked the "calling out" power,
albeit in different contexts.
The majority however considers that since the President does not
have the power to issue decrees, PP 1017 is unconstitutional insofar
as it enforces obedience "to all decrees." For one, it should be made
clear that the President currently has no power to issue decrees,
and PP 1017 by no measure seeks to restore such power to the
President. Certainly, not even a single decree was issued by
President Arroyo during the several days PP 1017 was in effect, or
during her term thus far for that matter.
At the same time, such power did once belong to the President
during the Marcos era and was extensively utilized by President
Marcos. It has to be remembered that chafed as we may have
under some of the Marcos decrees, per the 1987 Constitution they
still remain as part of the law of the land unless particularly stricken
down or repealed by subsequent enactments. Indeed, when the
President calls upon the Armed Forces to enforce the laws, those
subsisting presidential decrees issued by President Marcos in the
exercise of his legislative powers are included in the equation.
This view is supported by the rules of statutory construction. The
particular passage in PP 1017 reads ""to enforce obedience to all
the laws and to all decrees, orders and regulations," with the
phrases "all the laws and to all decrees" separated by a comma
from "orders and regulations promulgated by me." Inherently, laws
and those decrees issued by President Marcos in the exercise of his
legislative powers, and even those executive issuances of President
Aquino in the exercise of her legislative powers, belong to the same
class, superior in the hierarchy of laws than "orders and
regulations." The use of the conjunction "and" denotes a joinder or
union, "relating the one to the other." 33 The use of "and" establishes
an association between laws and decrees distinct from orders and
regulations, thus permitting the application of the doctrine of
noscitur a sociis to construe "decrees" as those decrees which at
present have the force of law. The dividing comma further signifies
the segregation of concepts between "laws and decrees" on one
hand, and "orders and regulations" on the other.
Further proof that "laws and decrees" stand as a class distinct from
"orders and regulations" is the qualifying phrase "promulgated by
me," which necessarily refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by
President Arroyo since she assumed office in 2001. "Laws and
decrees" do not relate only to those promulgated by President
Arroyo, but other laws enacted by past sovereigns, whether they be
in the form of the Marcos presidential decrees, or acts enacted by
the American Governor-General such as the Revised Penal Code.
Certainly then, such a qualification sufficiently addresses the fears
of the majority that PP 1017 somehow empowers or recognizes the
ability of the current President to promulgate decrees. Instead, the
majority pushes an interpretation that, if pursued to its logical end,
suggests that the President by virtue of PP 1017 is also arrogating
unto herself, the power to promulgate laws, which are in the mold
of enactments from Congress. Again, in this respect, the grouping of
"laws" and "decrees" separately from "orders" and "regulations"
signifies that the President has not arrogated unto herself the
power to issue decrees in the mold of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to
decrees which the current President could not very well issue, such
intention is of no consequence, since the proclamation does not
intend or pretend to grant the President such power in the first
place. By no measure of contemplation could PP 1017 be
interpreted as reinstating to the President the power to issue
decrees.
I cannot see how the phrase "enforce obedience to decrees" can be
the source of constitutional mischief, since the implementation of
PP 1017 will not vest on the President the power to issue such
decrees. If the Court truly feels the need to clarify this point, it can
do so with the expediency of one sentence or even a footnote. A
solemn declaration that the phrase is unconstitutional would be like
killing a flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives
Inherent and Traditional in the Office of The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, non-existent
as they may be in relation to the citizenry, the courts or on
Congress. Still, there is another purpose and dimension behind PP
1017 that fall within the valid prerogatives of the President.
The President, as head of state, is cast in a unique role in our polity
matched by no other individual or institution. Apart from the
constitutional powers vested on the President lie those powers
rooted in the symbolic functions of the office. There is the common
expectation that the President should stand as the political, moral
and social leader of the nation, an expectation not referred to in of
the oath of office, but expected as a matter of tradition. In fact, a
President may be cast in crisis even if the Chief Executive has
broken no law, and faithfully executed those laws that exist, simply
because the President has failed to win over the hearts and minds
of the citizens. As a Princeton academic, Woodrow Wilson once
observed that with the People, the President is everything, and
without them nothing, and the sad decline of his own eventual
presidency is no better proof of the maxim. Such are among the
vagaries of the political office, and generally beyond judicial relief
or remedy.
Justice Robert Jacksons astute observation in Youngstown Sheet &
Tube Co. v. Sawyer34 on the unique nature of the presidency, has
been widely quoted:
Executive power has the advantage of concentration in a single
head in whose choice the whole Nation has a part, making him the
focus of public hopes and expectations. In drama, magnitude, and
finality, his decisions so far overshadow any others that almost
alone he fills the public eye and ear. No other personality in public
life can begin to compete with him in access to the public mind
through modern methods of communications. By his prestige as
head of state and his influence upon public opinion he exerts a
leverage upon those who are supposed to check and balance his
power which often cancels their effectiveness. 35
Correspondingly, the unique nature of the office affords the
President the opportunity to profoundly influence the public
discourse, not necessarily through the enactment or enforcement of
laws, but specially by the mere expediency of taking a stand on the
issues of the day. Indeed, the President is expected to exercise
leadership not merely through the proposal and enactment of laws,
but by making such vital stands. U.S. President Theodore Roosevelt
popularized the notion of the presidency as a "bully pulpit", in line
with his belief that the President was the steward of the people
limited only by the specific restrictions and prohibitions appearing
in the Constitution, or impleaded by Congress under its
constitutional powers.
Many times, the President exercises such prerogative as a
responsive measure, as after a mass tragedy or calamity. Indeed,
when the President issues a declaration or proclamation of a state
of national mourning after a disaster with massive casualties, while
perhaps de rigeur, is not the formalistic exercise of tradition, but a
statement that the President, as the representative of the Filipino
people, grieves over the loss of life and extends condolences in
behalf of the people to the bereaved. This is leadership at its most
solemn.
Yet the President is not precluded, in the exercise of such role, to be
merely responsive. The popular expectation in fact is of a pro-
active, dynamic chief executive with an ability to identify problems
or concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of state,
very well has the capacity to use the office to garner support for
those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put
America on track to the goal of placing a man on the moon. Those
memorable presidential speeches memorized by schoolchildren
may have not, by themselves, made operative any law, but they
served not only merely symbolic functions, but help profoundly
influence towards the right direction, the public opinion in the
discourse of the times. Perhaps there was no more dramatic
example of the use of the "bully pulpit" for such noble purposes
than in 1964, when an American President from Texas stood before
a Congress populated by many powerful bigots, and fully
committed himself as no other President before to the cause of civil
rights with his intonation of those lines from the civil rights anthem,
"we shall overcome."
From an earlier era in American history, Lincolns Emancipation
Proclamation stands out as a presidential declaration which clearly
staked American polity on the side of the democratic ideal, even
though the proclamation itself was of dubitable legal value. The
proclamation, in short form, "freed the slaves", but was not itself
free of legal questions. For one, the notion that the President could,
by himself, alter the civil and legal status of an entire class of
persons was dubious then and now, although President Lincoln did
justify his action as in the exercise of his powers as commander-in-
chief during wartime, "as a fit and necessary war measure for
suppressing [the] rebellion." Moreover, it has been pointed out that
the Proclamation only freed those slaves in those states which were
then in rebellion, and it eventually took the enactment of the
Thirteenth Amendment of the U.S. Constitution to legally abolish
involuntary servitude.36 Notwithstanding the legal haze surrounding
it, the Emancipation Proclamation still stands as a defining example
not only of the Lincoln Presidency, but of American democratic
principles. It may be remembered to this day not exactly as an
operational means by which slaves were actually freed, but as a
clear rhetorical statement that slavery could no longer thenceforth
stand.
The President as Chief Government Spokesperson of the democratic
ideals is entrusted with a heady but comfortable pursuit. But no less
vital, if somewhat graver, is the role of the President as the Chief
Defender of the democratic way of life. The "calling out" power
assures the President such capability to a great extent, yet it will
not fully suffice as a defense of democracy. There is a need for the
President to rally the people to defend the Constitution which
guarantees the democratic way of life, through means other than
coercive. I assert that the declaration of a state of emergency, on
premises of a looming armed threat which have hardly been
disputed, falls within such proper functions of the President as the
defender of the Constitution. It was designed to inform the people
of the existence of such a threat, with the expectation that the
citizenry would not aid or abet those who would overturn through
force the democratic government. At the same time, the
Proclamation itself does not violate the Constitution as it does not
call for or put into operation the suspension or withdrawal of any
constitutional rights, or even create or diminish any substantive
rights.
I submit that it would be proper for the Court to recognize that PP
1017 strikes a commendable balance between the Constitution, the
"calling out" power, and the inherent function of the Presidency as
defender of the democratic constitution. PP 1017 keeps within the
scope and limitations of these three standards. It asserts the
primacy of the democratic order, civilian control over the armed
forces, yet respects constitutional and statutory guarantees of the
people.
II.
Section 17, Article XII of the Constitution In Relation to PP 1017
My next issue with the majority pertains to the assertion that the
President does not have the power to take over public utilities or
businesses impressed with public interest under Section 17, Article
XII of the Constitution without prior congressional authorization. I
agree that the power of the State to take over such utilities and
businesses is highly limited, and should be viewed with suspicion if
actually enforced.
Yet qualifications are in order with regard to how Section 17, Article
XII actually relates of PP 1017.
I agree with the majority that a distinction should be asserted as
between the power of the President to declare a state of
emergency, and the exercise of emergency powers under Section
17, Article XII. The President would have the power to declare a
state of emergency even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face
and as applied, did not involve the actual takeover of any public
utility or business impressed with public interest. To some minds,
the police action in relation to the Daily Tribune may have flirted
with such power, yet ultimately the newspaper was able to
independently publish without police interference or court
injunction. It may be so that since PP 1017 did make express
reference to Section 17, Article XII, but it should be remembered
that the constitutional provision refers to a two-fold power of the
State to declare a national emergency and to take over such
utilities and enterprises. The first power under Section 17, Article XII
is not distinct from the power of the President, derived from other
constitutional sources, to declare a state of national emergency.
Reference to Section 17, Article XII in relation to the power to
declare a state of national emergency is ultimately superfluous. A
different situation would obtain though if PP 1017 were invoked in
the actual takeover of a utility or business, and in such case, full
consideration of the import of Section 17, Article XII would be
warranted. But no such situation obtains in this case, and any
discussion relating to the power of the State to take over a utility or
business under Section 17, Article XII would ultimately be obiter
dictum.
I respectfully submit that the Court, in these petitions, need not
have engaged this potentially contentious issue, especially as it
extends to whether under constitutional contemplation, the
President may act in behalf of the State in exercising the powers
under Section 17, Article XII. Nonetheless, considering that the
majority has chosen to speak out anyway, I will express agreement
that as a general rule, the President may exercise such powers
under Section 17, Article XII only under the grant of congressional
approval. Certainly, the notion that congressional authority is
required under Section 17, Article XII is not evident from the
provision. Even Fr. Bernas notes that Section 17 does not require, as
does Article VI, Section 23(2), that the authorization be "by law",
thus leaving the impression that the authorization can come from
the President.37
After the 1989 coup detat, President Aquino issued issued
Proclamation No. 503 on 6 December 1989, declaring a state of
national emergency, and referring therein to Section 17, Article XII
by citing the entire provision. The declaration was subsequently
reaffirmed by Congress when two weeks after, it enacted Republic
Act No. 6826. Notably, Section 3(3) of the law authorized the
President "to temporarily takeover or direct the operation of any
privately-owned public utility or business affected with public
interest that violates the herein declared national policy". Tellingly,
however, such authority was granted by Congress expressly
"pursuant to Article VI, Section 23(2) of the Constitution", and not
the take-over provision in Section 17, Article XII. Evidently, the view
that Section 17, Article XII requires prior congressional authority has
some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17
as requiring congressional authority or approval before the takeover
under the provision may be effected. After all, the taking over of a
privately owned public utility or business affected with public
interest would involve an infringement on the right of private
enterprise to profit; or perhaps even expropriation for a limited
period. Constitutionally, the taking of property can only be
accomplished with due process of law, 38 and the enactment of
appropriate legislation prescribing the terms and conditions under
which the President may exercise the powers of the State under
Section 17 stands as the best assurance that due process of law
would be observed.
The fact that Section 17 is purposely ambivalent as to whether the
President may exercise the power therein with or without
congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in
extreme situations wherein obtention of congressional authority is
impossible or inexpedient considering the emergency. I thus dissent
to any proposition that such requirement is absolute under all
circumstances. I maintain that in such extreme situations, the
President may exercise such authority subject to judicial review.
It should be admitted that some emergencies are graver and more
imminent than others. It is not within the realm of impossibility that
by reason of a particularly sudden and grave emergency, Congress
may not be able to convene to grant the necessary congressional
authority to the President. Certainly, if bombs from a foreign
invader are falling over Manila skies, it may be difficult, not to
mention unnecessarily onerous, to require convening Congress
before the President may exercise the functions under Section 17,
Article XII. The proposition of the majority may be desirable as the
general rule, but the correct rule that should be adopted by the
Court should not be so absolute so as to preclude the exercise by
the President of such power under extreme situations.
In response to this argument, the majority cites portions of Araneta
v. Dinglasan,39 most pertinent of which reads: "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."
For one, Araneta did not involve a situation wherein the President
attempted to exercise emergency powers without congressional
authority; concerning as it did the exercise by President Quirino of
those emergency powers conferred several years earlier by
Congress to President Quezon at the onset of the Pacific phase of
World War II. The Court therein ruled that the emergency that
justified then the extraordinary grant of powers had since expired,
and that there no longer existed any authority on the part of the
President to exercise such powers, notwithstanding that the law,
Commonwealth Act No. 671, "did not in term fix the duration of its
effectiveness".
Clearly, the context in which the Court made that observation
in Araneta is not the same context within which my own
observations oscillate. My own submission is premised on the
extreme situation wherein Congress may be physically unable to
convene, an exceptional circumstance which the hard-line stance of
the majority makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded that
such extreme circumstance could occur, when it noted President
Quezons claim that he was impelled to call for a special session of
the National Assembly after foreseeing that "it was most unlikely
that the Philippine Legislature would hold its next regular session
which was to open on January 1, 1942." 40 That the National
Assembly then was able to convene and pass Commonwealth Act
No. 671 was fortunate, but somewhat a luxury nonetheless. Indeed,
it is not beyond the realm of possibility that the emergency
contemplated would be so grave that a sufficient number of
members of Congress would be physically unable to convene and
meet the quorum requirement.
Ultimately though, considering that the authorized or actual
takeover under Section 17, Article XII, is not presented as a properly
justiciable issue. Nonetheless, and consistent with the general
tenor, the majority has undertaken to decide this non-justiciable
issue, and to even place their view in the dispositive portion in a bid
to enshrine it as doctrine. In truth, the Courts pronouncement on
this point is actually obiter. It is hoped that should the issue become
ripe for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations
wherein congressional approval is impossible or highly impractical
to obtain, the powers under Section 17, Article XII may be
authorized by the President.
III.
Overbreadth and "Void for Vagueness" Doctrines Applicable Not
Only To Free Speech Cases
The majority states that "the overbreadth doctrine is an analytical
tool developed for testing on their faces statutes in free speech
cases"41, and may thus be entertained "in cases involving statutes
which, by their terms, seek to regulate only spoken words, and not
conduct. A similar characterization is made as to the "void for
vagueness" doctrine, which according to the majority, is "subject to
the same principles governing overbreadth doctrine also an
analytical tool for testing on their faces statutes in free speech
cases."42
As I noted in my Separate Opinion in Romualdez v.
Sandiganbayan,43 citing Justice Kapunan, there is a viable
distinction between "void for vagueness" and "overbreadth" which
the majority sadly ignores.
A view has been proferred that "vagueness and overbreadth
doctrines are not applicable to penal laws." These two concepts,
while related, are distinct from each other. On one hand, the
doctrine of overbreadth applies generally to statutes that
infringe upon freedom of speech. On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not
merely those that regulate speech or other fundamental
constitutional right. (not merely those that regulate speech
or other fundamental constitutional rights.) The fact that a
particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness
grounds cannot succeed.44
The distinction may prove especially crucial since there has been a
long line of cases in American Supreme Court jurisprudence
wherein penal statutes have been invalidated on the ground that
they were "void for vagueness." As I cited in Romualdez v.
Sandiganbayan,45 these cases are Connally v. General Construction
Co,.46 Lanzetta v. State of New Jersey,47 Bouie v. City of
Columbia,48 Papachristou v. City of Jacksonville,49 Kolender v.
Lawson,50and City of Chicago v. Morales.51
Granting that perhaps as a general rule, overbreadth may find
application only in "free speech" 52 cases, it is on the other hand
very settled doctrine that a penal statute regulating conduct, not
speech, may be invalidated on the ground of "void for vagueness".
In Romualdez, I decried the elevation of the suspect and radical
new doctrine that the "void for vagueness" challenge cannot apply
other than in free speech cases. My view on this point has not
changed, and insofar as the ponencia would hold otherwise, I thus
dissent.
Moreover, even though the argument that an overbreadth
challenge can be maintained only in free speech cases has more
jurisprudential moorings, the rejection of the challenge on that
basis alone may prove unnecessarily simplistic. I maintain that
there is an even stronger ground on which the overbreadth and
"void for vagueness" arguments can be refuted that Presidential
Proclamation 1017 (PP 1017) neither creates nor diminishes any
rights or obligations whatsoever. In fact, I submit again that this
proposition is the key perspective from which the petitions should
be examined.
IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is
generally constitutional. However, they make an unnecessary
distinction with regard to "acts of terrorism", pointing out that
Congress has not yet passed a law defining and punishing terrorism
or acts of terrorism.
That may be the case, but does the majority seriously suggest that
the President or the State is powerless to suppress acts of terrorism
until the word "terrorism" is defined by law? Terrorism has a widely
accepted meaning that encompasses many acts already punishable
by our general penal laws. There are several United Nations and
multilateral conventions on terrorism53, as well as declarations
made by the United Nations General Assembly denouncing and
seeking to combat terrorism.54 There is a general sense in
international law as to what constitutes terrorism, even if no precise
definition has been adopted as binding on all nations. Even without
an operative law specifically defining terrorism, the State already
has the power to suppress and punish such acts of terrorism,
insofar as such acts are already punishable, as they almost always
are, in our extant general penal laws. The President, tasked with the
execution of all existing laws, already has a sufficient mandate to
order the Armed Forces to combat those acts of terrorism that are
already punishable in our Revised Penal Code, such as rebellion,
coup detat, murder, homicide, arson, physical injuries, grave
threats, and the like. Indeed, those acts which under normal
contemplation would constitute terrorism are associated anyway
with or subsumed under lawless violence, which is a term found in
the Constitution itself. Thus long ago, the State has already seen it
fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or
create new penal acts, since such power belongs to the legislative
alone. Fortunately, General Order No. 5 does not assume to make
such redefinitions. It may have been a different matter had General
Order No. 5 attempted to define "acts of terrorism" in a manner that
would include such acts that are not punished under our statute
books, but the order is not comported in such a way. The proper
course of action should be to construe "terrorism" not in any legally
defined sense, but in its general sense. So long as it is understood
that "acts of terrorism" encompasses only those acts which are
already punishable under our laws, the reference is not
constitutionally infirm.
The majority cites a theoretical example wherein a group of persons
engaged in a drinking spree may be arrested by the military or
police in the belief that they were committing acts of terrorism
pursuant to General Order No. 5. Under the same logical framework
that group of persons engaged in a drinking spree could very well
be arrested by the military or police in the belief that they are
committing acts of lawless violence pursuant to General Order No.
5, instead of acts of terrorism. Obviously such act would be "abuse
and oppression" on the part of the military and the police, whether
justified under "lawless violence" or "acts of terrorism". Yet
following the logic of the majority, the directive to prevent acts of
"lawless violence" should be nullified as well.
If the point of the majority is that there are no justiciable standards
on what constitutes acts of terrorism, it should be pointed out that
only the following scenarios could ensue. For one, a person would
actually be arrested and charged with "acts of terrorism", and such
arrest or charge would be thrown out of the courts, since our
statute books do not criminalize the specific crime of terrorism.
More probably, a person will be arrested and charged for acts that
may under the laypersons contemplation constitutes acts of
terrorism, but would be categorized in the information and charge
sheet as actual crimes under our Revised Penal Code. I simply
cannot see how General Order No. 5 could validate arrests and
convictions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of definition
and possible broad context of "acts of terrorism", seems to be
positively applying the arguments of "overbreadth" or "void for
vagueness", arguments which they earlier rejected as applicable
only in the context of free expression cases. The inconsistency is
breath-taking. While I disagree with the majority-imposed
limitations on the applicability of the "overbreadth" or "void for
vagueness" doctrines, I likewise cannot accede to the application of
those doctrines in the context of General Order No. 5, for the same
reason that they should not apply to PP 1017. Neither General
Order No. 5 nor PP 1017 is a penal statute, or have an operative
legal effect of infringing upon liberty, expression or property. As
such, neither General Order No. 5 nor PP 1017 can cause the
deprivation of life, liberty or property, thus divorcing those
issuances from the context of the due process clause. The same
absence of any binding legal effect of these two issuances
correspondingly disassociates them from the constitutional
infringement of free expression or association. Neither "void for
vagueness" nor "overbreadth" therefore lie.
Another point. The majority concludes from General Order No. 5
that the military or police is limited in authority to perform those
acts that are "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence," and
such acts committed beyond such authority are considered illegal. I
do not dispute such conclusion, but it must be emphasized that
"necessary and appropriate actions and measures" precisely do not
authorize the military or police to commit unlawful and
unconstitutional acts themselves, even if they be geared towards
suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or
obligations, or diminish existing ones, it necessarily follows
that General Order No. 5, even if premised on a state of
emergency, cannot authorize the military or police to ignore
or violate constitutional or statutory rights, or enforce laws
completely alien to the suppression of lawless
violence. Again, following the cardinal principle of legal
hermeneutics earlier adverted to, General Order No. 5 should be
viewed in harmony with the Constitution, and only if it the Order
irreconcilably deviates from the fundamental law should it be struck
down.
V.
Court Should Refrain Making Any Further Declaration, For Now,
Relating to the Individual Grievances Raised by the Petitioners in
Relation To PP 1017
I respectfully disagree with the manner by which the majority would
treat the "void as applied" argument presented by the petitioners.
The majority adopts the tack of citing three particular injuries
alleged by the petitioners as inflicted with the implementation of PP
1017. The majority analyzes the alleged injuries, correlates them to
particular violations of the Bill of Rights, and ultimately concludes
that such violations were illegal.
The problem with this approach is that it would forever deem the
Court as a trier or reviewer at first instance over questions involving
the validity of warrantless arrests, searches, seizures and the
dispersal of rallies, all of which entail a substantial level of factual
determination. I agree that PP 1017 does not expand the grounds
for warrantless arrests, searches and seizures or dispersal of rallies,
and that the proclamation cannot be invoked before any court to
assert the validity of such unauthorized actions. Yet the problem
with directly adjudicating that the injuries inflicted on David, et al.,
as illegal, would be that such would have been done with undue
haste, through an improper legal avenue, without the appropriate
trial of facts, and without even impleading the particular officers
who effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the petitioners
upon the implementation of PP 1017 are a source of grave concern.
Indubitably, any person whose statutory or constitutional rights
were violated in the name of PP 1017 or General Order No. 5
deserves redress in the appropriate civil or criminal proceeding, and
even the minority wishes to makes this point as emphatically clear,
if not moreso, as the majority. Yet a ruling from this Court,
without the proper factual basis or prayer for remuneration
for the injury sustained, would ultimately be merely
symbolic. While the Court will not be harmed by a symbolic
reaffirmation of commitment to the principles in the Bill of
Rights, it will be harmed by a ruling that unduly and
inappropriately expands the very limited function of the
Court as a trier of facts on first instance.
In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that
our legal system may run counter-intuitive in the sense that the
seemingly or obviously guilty may still, after trial, be properly
acquitted or exonerated; to the extent that even an accused who
murders another person in front of live television cameras
broadcast to millions of sets is not yet necessarily guilty of the
crime of murder or homicide.56 Hence, the necessity of a proper trial
so as to allow the entire factual milieu to be presented, tested and
evaluated before the court. In my theoretical example, the said
accused should nonetheless be acquitted if the presence of
exempting circumstances is established. The same principle applies
in these cases. Certainly, we in the Court can all agree that PP 1017
cannot be invoked to justify acts by the police or military officers
that go beyond the Constitution and the laws. But the course of
prudence dictates that the pronouncement of such a doctrine, while
enforceable in a court of law, should not yet extend itself to specific
examples that have not yet been properly litigated. The function
of this Court is to make legal pronouncements not based on
"obvious" facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures
were "illegal" would likewise preclude any meaningful review or
reevaluation of pertinent legal doctrines that otherwise could have
been reexamined had these acts been properly challenged in
regular order. For example, the matter of the warrantless arrests in
these cases could have most certainly compelled the Court to again
consider the doctrine laid down in Umil v. Ramos on warrantless
arrests and rebellion as a continuing crime, a doctrine that may
merit renewed evaluation. Yet any healthy reexamination of Umil, or
other precedents for that matter, require the presentation and trial
of the proper factual predicates, a course which the majority
unfortunately "short-cuts" in this present decision.
Of course, despite the grandiloquent pronouncement by the
majority that the acts complained of by the petitioners and
implemented pursuant to General Order No. 5 are illegal, it could
nonetheless impose civil, criminal or administrative sanctions on
the individual police officers concerned, as these officers had not
been "individually identified and given their day in court". Of
course, the Court would be left with pie on its face if these persons,
once "given their day in court", would be able to indubitably
establish that their acts were actually justified under law. Perhaps
worse, the pronouncement of the majority would have had the
effect of prejudging these cases, if ever lodged, even before trial on
the merits.
Certainly, a declaration by the majority that PP 1017 or General
Order No. 5 cannot justify violation of statutory or constitutional
rights (a declaration which the minority would have no qualms
assenting to) would sufficiently arm those petitioners and other
persons whose rights may have been injured in the implementation
of PP 1017, with an impeccable cause of action which they could
pursue against the violators before the appropriate courts. At the
same time, if the officers or officials concerned have basis to
contend that no such rights were violated, for justifications
independent of PP 1017 or General Order No. 5, such claims could
receive due consideration before the courts. Such a declaration
would squarely entrench the Court as a defender of the Bill of
Rights, foster enforceable means by which the injured could seek
actual redress for the injury sustained, and preserve the integrity
and order of our procedural law.
VI.
Conclusion
The country-wide attention that the instant petitions have drawn
should not make the Court lose focus on its principal mission, which
is to settle the law of the case. On the contrary, the highly political
nature of these petitions should serve as forewarning for the Court
to proceed ex abundante cautelam, lest the institution be unduly
dragged into the partisan mud. The credibility of the Court is
ensured by making decisions in accordance with the Constitution
without regard to the individual personalities involved; with sights
set on posterity, oblivious of the popular flavor of the day.
By deciding non-justiciable issues and prejudging cases and
controversies without a proper trial on the merits, the majority has
diminished the potency of this Courts constitutional power in favor
of rhetorical statements that afford no quantifiable relief. It is for
the poet and the politician to pen beautiful paeans to the peoples
rights and liberties, it is for the Court to provide for viable legal
means to enforce and safeguard these rights and liberties. When
the passions of these times die down, and sober retrospect
accedes, the decision of this Court in these cases will be looked
upon as an extended advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny
from those interested and tasked with preserving our civil liberties.
They may even stand, in the appropriate contexts, as viable
partisan political issues. But the plain fact remains that, under legal
contemplation, these issuances are valid on their face, and should
result in no constitutional or statutory breaches if applied according
to their letter.
I vote to DISMISS all the petitions.
DANTE O. TINGA
Associate Justice
Footnotes
1
G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421
SCRA 656.
2
R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.
3
"When a statute is reasonably susceptible of two constructions,
one constitutional and the other unconstitutional, that construction
in favor of its constitutionality shall be adopted and the
construction that will render it invalid rejected." See R. Agpalo, id.,
at 266; citing Mutuc v. COMELEC, G.R. No. 32717, Nov. 26, 1970, 36
SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. No.
21064, Feb. 18, 1970, 31 SCRA 413; American Bible Society v. City
of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil. 683
(1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet
Exploration, Inc. v. Department of Agriculture and Natural
Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA 285 (1977); De la
Cruz v. Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
4
See Constitution, Section 17, Article VII.
5
See Constitution, Section 18, Article VII.
6
See Constitution, Section 1, Article VII.
7
The plenary legislative power being vested in Congress. See
Constitution, Section 1, Article VI.
8
"[The President] shall ensure that the laws be faithfully executed."
See Constitution, Section 17, Article VII.
9 25
Supra note 4. Aquino, Jr. v. Enrile, id. at 240-241.
10 26
"No officer or employee of the civil service shall be removed or Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.
suspended except for cause provided by law." See Constitution,
27
Section 2(3), Article IX-B. Id. at 398-399, Barredo, J., concurring.
28
11
See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, Id. at 405-406, Barredo, J., concurring.
178 SCRA 760, 763. 29
Id. at 423, Barredo, J., concurring.
12
See Administrative Code, Section 4, Chapter 2, Book III. 30
Constitution, Section 18, Article VII.
13
See Section 18, Article VII, Constitution. 31
Constitution, Section 18, Article VII.
14
392 Phil. 618 (2000) 32
See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.
15
Id. at 627. 33
See R. Agpalo, Statutory Construction, p. 206.
16
Id. at 644. 34
343 U.S. 579, 653-654, J. Jackson, concurring.
17
Id. at 636. 35
Ibid.
18
Id. at 643. 36
See George Fort Milton, The Use of Presidential Power: 1789-
19
Id. 1943, 1980 ed., at 119-120.
37
20
Sanlakas v. Executive Secretary, supra note 1, at 668. See J. Bernas, S.J., The 1987 Constitution of the Republic of the
Philippines: A Commentary, 2003 ed., at 1183.
21
Id. at 677.
38
See Section 1, Article III, Constitution.
22
Supra note 8.
39
84 Phil. 368 (1949).
23
The declaration of martial law then within the President to make
40
under authority of Section 10(2), Article VII of the 1935 Id. at 379.
Constitution. 41
Decision, infra.
24
No. L-35546, 17 September 1974, 59 SCRA 183. 42
Id.
43
G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406. http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April
2006).
44
Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil.
54
290, J. Kapunan, dissenting, at pp. 382-384. See, e.g., Resolution No. 49/60, Adopted by the United Nations
General Assembly on 17 February 1995.
45
Id., at 398-401.
55
G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-
46
269 U.S. 385, 393 (1926). 348. J. Tinga, dissenting.
47
306 U.S. 451 (1939). 56
Id. at 345.
48
378 U.S. 347 (1964). G.R. No. 178552 October 5, 2010
49
405 U.S. 156 (1972). SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on
50
461 U.S. 352 (1983). behalf of the South-South Network (SSN) for Non-State
Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS,
51
Case No. 97-1121, 10 June 1999. JR., Petitioners,
vs.
52
But see United States v. Robel, 389 U.S. 258 (1967), wherein the ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE
U.S. Supreme Court invalidated a portion of the Subversive Control SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN
Activities Act on the ground of overbreadth as it sought to proscribe AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE
the exercise the right of free association, also within the First SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
Amendment of the United States Constitution but a distinct right SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER,
altogether from free expression. THE CHIEF OF STAFF OF THE ARMED FORCES OF THE
53 PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL
To name a few, the Convention on the Prevention and Punishment
POLICE, Respondents.
of Crimes against Internationally Protected Persons, including
Diplomatic Agents (1973); International Convention for the x - - - - - - - - - - - - - - - - - - - - - - -x
Suppression of Terrorist Bombings (1997); International Convention
for the Suppression of the Financing of Terrorism (1999); the G.R. No. 178554
International Convention for the Suppression of Acts of Nuclear
Terrorism (2005). See "United Nations Treaty Collection KILUSANG MAYO UNO (KMU), represented by its Chairperson
Conventions on Terrorism", Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR.,
Antonio C. Pascual, and CENTER FOR TRADE UNION AND SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ,
HUMAN RIGHTS, represented by its Executive Director Daisy ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.),
Arago, Petitioners, CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-
vs. ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA
HON. EDUARDO ERMITA, in his capacity as Executive DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
Secretary, NORBERTO GONZALES, in his capacity as Acting vs.
Secretary of National Defense, HON. RAUL GONZALES, in his GLORIA MACAPAGAL-ARROYO, in her capacity as President
capacity as Secretary of Justice, HON. RONALDO PUNO, in and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO
his capacity as Secretary of the Interior and Local ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
Government, GEN. HERMOGENES ESPERON, in his capacity GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
CALDERON, in his capacity as PNP Chief of ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
Staff, Respondents. INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO
PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO
x - - - - - - - - - - - - - - - - - - - - - - -x TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES,
G.R. No. 178581 THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI),
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
CONFEDERATION FOR UNITY, RECOGNITION AND NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), including its intelligence and investigative elements, AFP
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), CHIEF GEN. HERMOGENES ESPERON, Respondents.
SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG x - - - - - - - - - - - - - - - - - - - - - - -x
KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF G.R. No. 178890
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE
FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA,
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF
PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la
Paz, and representing the following organizations:
HUSTISYA, represented by Evangeline Hernandez and also
on her own behalf; DESAPARECIDOS, represented by Mary
Guy Portajada and also on her own behalf, SAMAHAN NG
MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA
AMNESTIYA (SELDA), represented by Donato Continente and
also on his own behalf, ECUMENICAL MOVEMENT FOR
JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M.
Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S
RESPONSE, represented by Fr. Gilbert Sabado,
OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President
and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO
PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES,
THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI),
THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP),
represented by Atty. Feliciano M. Bautista, COUNSELS FOR
THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA
CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO
OSMEA III and WIGBERTO E. TAADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE
MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG
(BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG
MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
(MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-
ST, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-
ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA
LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA
TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS
(LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID
PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS
NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK),
SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG
KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK),
STARTER, LOSOS RURAL POOR ORGANIZATION FOR
PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO
REYES, FRANCESCA B. TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO,
SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President
and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE
ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO
PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES,
THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI),
THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality
of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and
Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007,1signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner
Southern Hemisphere Engagement Network, Inc., a non-
government organization, and Atty. Soliman Santos, Jr., a concerned
citizen, taxpayer and lawyer, filed a petition for certiorari and
prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of
Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for
Trade Union and Human Rights (CTUHR), represented by their
respective officers3 who are also bringing the action in their
capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang
Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of
Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers, 4 and
joined by concerned citizens and taxpayers Teofisto Guingona, Jr.,
Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John
Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita
Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member
organizations Hustisya, Desaparecidos, Samahan ng mga Ex-
Detainees Laban sa Detensyon at para sa Amnestiya (SELDA),
Ecumenical Movement for Justice and Peace (EMJP), and Promotion
of Church Peoples Response (PCPR), which were represented by
their respective officers5who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R.
No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP),
Counsels for the Defense of Liberty (CODAL), 6Senator Ma. Ana
Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada
filed a petition for certiorari and prohibition docketed as G.R. No.
179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern
Tagalog Region,7 and individuals8 followed suit by filing on
September 19, 2007 a petition for certiorari and prohibition
docketed as G.R. No. 179461 that replicates the allegations raised
in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-
Terrorism Council9 composed of, at the time of the filing of the
petitions, Executive Secretary Eduardo Ermita as Chairperson,
Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign
Affairs Secretary Alberto Romulo, Acting Defense Secretary and
National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the
IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National Police (PNP)
Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded
President Gloria Macapagal-Arroyo and the support agencies for the
Anti-Terrorism Council like the National Intelligence Coordinating
Agency, National Bureau of Investigation, Bureau of Immigration,
Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and
the PNP intelligence and investigative elements.
The petitions fail.
Petitioners resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
Rules of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board or
officer exercising judicial or quasi-judicial functionshas acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of
particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail
just the same.
In constitutional litigations, the power of judicial review is limited by
four exacting requisites, viz: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis
mota of the case.10
In the present case, the dismal absence of the first two requisites,
which are the most essential, renders the discussion of the last two
superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires 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.11
Anak Mindanao Party-List Group v. The Executive
12
Secretary summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and
substantial interest in a 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 on 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.
[A] party who assails the constitutionality of a statute must have a
direct and personal interest. It must show not only that the law or
any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that
it is about to be subjected to some burdens or penalties by reason
of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a
favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being
suspected "communist fronts" by the government, especially the
military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens
and taxpayers.
While Chavez v. PCGG13 holds that transcendental public
importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of
harmful conduct, as will later be elucidated, necessitate a closer
judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome
of the controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR,
petitioners in G.R. No. 178890, allege that they have been
subjected to "close security surveillance by state security forces,"
their members followed by "suspicious persons" and "vehicles with
dark windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as
"enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the
Solicitor General (OSG) correctly points out that petitioners have
yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to
take judicial notice of respondents alleged action of tagging them
as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National Peoples Army
(NPA). The tagging, according to petitioners, is tantamount to the
effects of proscription without following the procedure under the
law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the
same allegations.
The Court cannot take judicial notice of the alleged "tagging" of
petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is
that of notoriety. Hence, it can be said that judicial notice is limited
to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within
the territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial
matters coming to the knowledge of men generally in the course of
the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready
and unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a
wide variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of
judicial notice. Petitioners apprehension is insufficient to
substantiate their plea. That no specific charge or proscription
under RA 9372 has been filed against them, three years after its
effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R.
No. 178554, who merely harp as well on their supposed "link" to the
CPP and NPA. They fail to particularize how the implementation of
specific provisions of RA 9372 would result in direct injury to their
organization and members.
While in our jurisdiction there is still no judicially declared terrorist
organization, the United States of America17(US) and the European
Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf
Group as foreign terrorist organizations. The Court takes note of the
joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt
the US and EU classification of the CPP and NPA as terrorist
organizations.19 Such statement notwithstanding, there is yet to be
filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under
RA 9372. Again, RA 9372 has been in effect for three years now.
From July 2007 up to the present, petitioner-organizations have
conducted their activities fully and freely without any threat of,
much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by
Party-list Representatives Saturnino Ocampo, Teodoro Casio,
Rafael Mariano and Luzviminda Ilagan, 20 urged the government to
resume peace negotiations with the NDF by removing the
impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino
Administration21 of resuming peace talks with the NDF, the
government is not imminently disposed to ask for the judicial
proscription of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court
with direct and specific interests in the questions being raised.22 Of
recent development is the filing of the first case for proscription
under Section 1723 of RA 9372 by the Department of Justice before
the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link
to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence
of a prosecution under RA 9372 by alluding to past rebellion
charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion
charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA,
and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan
Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato
Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement
were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA,
KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it
easier to charge a person with rebellion, its elements not having
been altered.
Conversely, previously filed but dismissed rebellion charges bear no
relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372,
none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of
locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance
to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does
not, however, suffice to clothe the IBP or any of its members with
standing.27 The IBP failed to sufficiently demonstrate how its
mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have
been the subject of "political surveillance," also lacks locus standi.
Prescinding from the veracity, let alone legal basis, of the claim of
"political surveillance," the Court finds that she has not shown even
the slightest threat of being charged under RA 9372. Similarly
lacking in locus standi are former Senator Wigberto Taada and
Senator Sergio Osmea III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372.
Outside these gratuitous statements, no concrete injury to them
has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty.
Soliman Santos Jr. in G.R. No. 178552 also conveniently state that
the issues they raise are of transcendental importance, "which must
be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have
been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with
locus standi. Petitioners must show an actual, or immediate danger
of sustaining, direct injury as a result of the laws enforcement. 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.
Neither can locus standi be conferred upon individual petitioners as
taxpayers and citizens. A taxpayer suit is proper only when there is
an exercise of the spending or taxing power of Congress, 28 whereas
citizen standing must rest on direct and personal interest in the
proceeding.29
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of
the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by
the assertion of a public right, do not establish locus standi.
Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an
actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government.30(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that
the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by
the parties. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.32
Information Technology Foundation of the Philippines v.
COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The
controversy must be justiciabledefinite and concrete, touching on
the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of
a legal right, on the one hand, and a denial thereof on the other
hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive
in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. (Emphasis and
underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the
Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent
events.34 Similarly, a petition that fails to allege that an application
for a license to operate a radio or television station has been denied
or granted by the authorities does not present a justiciable
controversy, and merely wheedles the Court to rule on a
hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v.
Commission on Elections36 for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections, 37 to rule
on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of
the Muslim Code and those of the national law, there being no
actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge.
This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the
issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,39 allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking
relief."40 The plaintiffs therein filed an action before a federal court
to assail the constitutionality of the material support statute, 18
U.S.C. 2339B (a) (1),41 proscribing the provision of material support
to organizations declared by the Secretary of State as foreign
terrorist organizations. They claimed that they intended to provide
support for the humanitarian and political activities of two such
organizations.
Prevailing American jurisprudence allows an adjudication on the
merits when an anticipatory petition clearly shows that the
challenged prohibition forbids the conduct or activity that a
petitioner seeks to do, as there would then be a justiciable
controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have
failed to show that the challenged provisions of RA 9372 forbid
constitutionally protected conduct or activity that they seek to do.
No demonstrable threat has been established, much less a real and
existing one.
Petitioners obscure allegations of sporadic "surveillance" and
supposedly being tagged as "communist fronts" in no way
approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion,
which is not its function.43
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.44
The possibility of abuse in the implementation of RA 9372 does 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.45 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.
A facial invalidation of a statute is allowed only in free
speech cases, wherein certain rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly
broad the definition of the crime of terrorism46under RA 9372 in that
terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no
standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-
for-vagueness and overbreadth find no application in the present
case since these doctrines apply only to free speech cases; and that
RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is
imperative to outline the schools of thought on whether the void-
for-vagueness and overbreadth doctrines are equally applicable
grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the
idea of limiting the application of the two doctrines to free speech
cases. They particularly cite Romualdez v. Hon.
47 48
Sandiganbayan and Estrada v. Sandiganbayan.
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word
"intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act
was intrinsically vague and impermissibly broad. The Court stated
that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases," and are "not appropriate for
testing the validity of penal statutes." 50 It added that, at any rate,
the challenged provision, under which the therein petitioner was
charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on
Elections,52 the Court stated that a facial invalidation of criminal
statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election
offense53 under the Voters Registration Act of 1996, with which the
therein petitioners were charged, is couched in precise language. 54
The two Romualdez cases rely heavily on the Separate Opinion 55 of
Justice Vicente V. Mendoza in the Estradacase, where the Court
found the Anti-Plunder Law (Republic Act No. 7080) clear and free
from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a "facial" invalidation as opposed to an
"as-applied" challenge. He basically postulated that allegations that
a penal statute is vague and overbroad do not justify a facial review
of its validity. The pertinent portion of the Concurring Opinion of
Justice Mendoza, which was quoted at length in the main Estrada
decision, reads:
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible"chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity." The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been 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." For this
reason, it has been held that "a facial challenge to a legislative act
is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid." As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional."
As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim
that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties
not before the Court whose activities are constitutionally protected.
It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.
But, as the U.S. Supreme Court pointed out in Younger v. Harris
[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.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the
overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation
of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth
doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even
though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied"
challenge.
Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facialinvalidation is an
examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on
the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected
speech or activities.60
Justice Mendoza accurately phrased the subtitle 61 in his concurring
opinion that the vagueness and overbreadth doctrines, as grounds
for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified
by the aim to avert the "chilling effect" on protected speech, the
exercise of which should not at all times be abridged. 62 As reflected
earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected
rights.63
The Court reiterated that there are "critical limitations by which a
criminal statute may be challenged" and "underscored that an on-
its-face invalidation of penal statutes x x x may not be allowed." 64
[T]he rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes
may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the
grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A
facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test
will impair the States ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the
States power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him. 65(Emphasis
and underscoring supplied)
It is settled, on the other hand, that the application of the
overbreadth doctrine is limited to a facial kind of challenge
and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that
are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as
applied to the litigants.
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
66
parties. (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the
Court, in at least two cases, 67 observed that the US Supreme Court
has not recognized an overbreadth doctrine outside the limited
context of the First Amendment,68 and that claims of facial
overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken
69 70
words. In Virginia v. Hicks, it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the "transcendent
value to all society of constitutionally protected expression." 71
Since a penal statute may only be assailed for being
vague as applied to petitioners, a limited vagueness analysis of
the definition of "terrorism" in RA 9372 is legally impermissible
absent an actual or imminent chargeagainst them
While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that
there was no basis to review the law "on its face and in its
entirety."72 It stressed that "statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular
defendant."73
American jurisprudence74 instructs that "vagueness challenges that
do not involve the First Amendment must be examined in light of
the specific facts of the case at hand and not with regard to the
statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated
defendants claims that criminal statutes are unconstitutionally
vague, developing a doctrine hailed as "among the most important
guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under
the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases, 76 the
Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the
crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the
Revised Penal Code. Notably, the petitioners in these three cases,
similar to those in the two Romualdez andEstrada cases, were
actually charged with the therein assailed penal statute, unlike in
the present case.
There is no merit in the claim that RA 9372 regulates speech so as
to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited
Section 3 of RA 9372, the following elements may be culled: (1) the
offender commits an act punishable under any of the cited
provisions of the Revised Penal Code, or under any of the
enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is
actuated by the desire to coerce the government to give in to
an unlawful demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of "unlawful
demand" in the definition of terrorism 77 must necessarily be
transmitted through some form of expression protected by the free
speech clause.
The argument does not persuade. What the law seeks to penalize
is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there
must first be a predicate crime actually committed to trigger the
operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an
"unlawful demand." Given the presence of the first element, any
attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected
conduct into a protected speech.
Petitioners notion on the transmission of message is entirely
inaccurate, as it unduly focuses on just one particle of an element
of the crime. Almost every commission of a crime entails some
mincing of words on the part of the offender like in declaring to
launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful
transaction. An analogy in one U.S. case 78 illustrated that the fact
that the prohibition on discrimination in hiring on the basis of race
will require an employer to take down a sign reading "White
Applicants Only" hardly means that the law should be analyzed as
one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of
the criminal conduct alter neither the intent of the law to punish
socially harmful conduct nor the essence of the whole act as
conduct and not speech. This holds true a fortiori in the present
case where the expression figures only as an inevitable incident of
making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as
in most instances brought about through speaking or writing. But it
has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because
the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech
and press would make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society. 79 (italics
and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct,
because they merely evidence a prohibited conduct. 80 Since speech
is not involved here, the Court cannot heed the call for a facial
analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a
vagueness analysis of the therein subject penal statute as
applied to the therein petitioners inasmuch as they were actually
charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review
the assailed penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the
pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since the therein plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual
charge nor a credible threat of prosecutionunder RA 9372. Even a
limited vagueness analysis of the assailed definition of "terrorism"
is thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on a
statutes future effect on hypothetical scenarios nor allows the
courts to be used as an extension of a failed legislative lobbying in
Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
 in consultation before the case was assigned to the writer of the
PRESBITERO J. VELASCO,
ANTONIO T. CARPIO opinion of the Court.
JR.
Associate Justice
Associate Justice RENATO C. CORONA
Chief Justice
ANTONIO EDUARDO B.
ARTURO D. BRION
NACHURA
Associate Justice
Associate Justice
Footnotes

TERESITA J. LEONARDO- 1
A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
DIOSDADO M. PERALTA
DE CASTRO
Associate Justice 2
REPUBLIC ACT No. 9372, Sec. 62.
Associate Justice
3
KMU Chairperson Elmer Labog, NAFLU-KMU National President
LUCAS P. BERSAMIN ROBERTO A. ABAD Joselito V. Ustarez and NAFLU-KMU Secretary General Antonio C.
Associate Justice Associate Justice Pascual, and CTUHR Executive Director Daisy Arago.
4
BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA
MARIANO C. DEL MARTIN S. VILLARAMA, Secretary General Emerenciana de Jesus, KMP Secretary General
CASTILLO JR. Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE
Associate Justice Associate Justice National President Ferdinand Gaite, KADAMAY Vice Chairperson
Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS National
Chairperson Vencer Crisostomo, Anakbayan Secretary General
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Eleanor de Guzman, PAMALAKAYA Chairperson Fernando Hicap, ACT
Associate Justice Associate Justice
Chairperson Antonio Tinio, Migrante Chairperson Concepcion
Bragas-Regalado, HEAD Deputy Secretary General Dr. Geneve
MARIA LOURDES P. A. SERENO Rivera, and Agham Chairperson Dr. Giovanni Tapang. Grafe and
Associate Justice Tapang, however, failed to verify the petition.
CERTIFICATION 5
Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for
Pursuant to Section 13, Article VIII of the Constitution, I hereby Hustisya, Mary Guy Portajada for Desaparecidos, Donato Continente
certify that the conclusions in the above Decision had been reached
 10
for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado Francisco v. House of Representatives, G.R. No. 160261,
for PCPR. November 10, 2003, 415 SCRA 44, 133 (2003).
6 11
IBP is represented by Atty. Feliciano M. Bautista, national Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633
president, while CODAL is represented by Atty. Noel Neri, (2000), citing Baker v. Carr, 369 U.S. 186 (1962).
convenor/member.
12
G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
7
BAYAN-ST is represented by Secretary General Arman Albarillo;
13
Katipunan ng mga Magsasaka sa Timog Katagulagan (KASAMA-TK) 360 Phil. 133 (1998).
by Secretary General Orly Marcellana; Pagkakaisa ng mga 14
Rollo (G.R. No. 178890), pp. 11-12.
Manggagawa sa Timog Katagalugan (PAMANTIK-KMU) by Regional
Secretary General Luz Baculo; GABRIELA-Southern Tagalog by 15
Rollo (G.R. No. 178581), p. 17.
Secretary General Helen Asdolo; Organized Labor Association in
16
Line Industries and Agriculture (OLALIA) by Chairperson Romeo Vide Genesis Transport Service, Inc. v. Unyon ng Malayang
Legaspi; Southern Tagalog Region Transport Organization (STARTER) Manggagawa ng Genesis Transport, G.R. No. 182114, April 5, 2010.
by Regional Chairperson Rolando Mingo; Bayan Muna Partylist-ST by 17
<http://www.state.gov/s/ct/rls/other/des/123085.htm> (last
Regional Coordinator Bayani Cambronero; Anakbayan-ST by
visited August 13, 2010).
Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson
Mark Velasco; PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, 18
<http://eur-
Bigkis at Lakas ng mga Katutubo sa Timog Katagalugan (BALATIK) ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00
by Regional Auditor Aynong Abnay; Kongreso ng mga Magbubukid 410045.pdf> and its recent update <http://eur-
para sa Repormang Agraryo (Kompra) represented by member Leng lex.europa.eu/LexUriServ/LexUriServ.do?
Jucutan; Martir ng Bayan with no representation; Pagkakaisa at uri=OJ:L:2009:023:0037:01:EN:HTM> on the Council Common
Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented Position (last visited August 13, 2010).
by Provincial Secretary General Darwin Liwag; and Los Baos Rural
19
Poor Organization for Progress and Equality represented by Teodoro Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
Reyes. <http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-
75951/Reds_target_of_terror_law> (last visited August 16, 2010).
8
Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran,
20
Edgardo Bitara Yap, Oscar Lapida, Delfin de Claro, Sally Astera, House Resolution No. 641.
Christian Nio Lajara, Mario Anicete, and Emmanuel Capulong. 21
In his State of the Nation Address, President Benigno Aquino III
9
REPUBLIC ACT No. 9372, Sec. 53. said: "x x x x. Tungkol naman po sa CPP-NPA-NDF: handa na ba
kayong maglaan ng kongkretong mungkahi, sa halip na pawang
batikos lamang?
Kung kapayapaan din ang hangad ninyo, handa po kami sa
malawakang tigil-putukan. Mag-usap tayo.
Mahirap magsimula ang usapan habang mayroon pang amoy ng
pulbura sa hangin. Nananawagan ako: huwag po natin hayaang
masayang ang napakagandang pagkakataong ito upang magtipon
sa ilalim ng iisang adhikain.
Kapayapaan at katahimikan po ang pundasyon ng kaunlaran.
Habang nagpapatuloy ang barilan, patuloy din ang pagkakagapos
natin sa kahirapan. x x x x." See:
<http://www.gov.ph/2010/07/26/state-of-the-nation-address-2010>
(last visited August 25, 2010).
22
In Francisco v. House of Representatives, 460 Phil. 830, 899
(2003), the Court followed the determinants cited by Mr, Justice
Florentino Feliciano in Kilosbayan v. Guingona for using the
transcendental importance doctrine, to wit: (a) the character of the
funds or other assets involved in the case; (b) the presence of a
clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government;
and (c) the lack of any other party with a more direct and specific
interest in the questions being raised.
23
SEC. 17. Proscription of Terrorist Organization, Association, or
Group of Persons. Any organization, association, or group of
persons organized for the purpose of engaging in terrorism, or
which, although not organized for that purpose, actually uses acts
to terrorize mentioned in this Act or to sow and create a condition of
widespread fear and panic among the populace in order to coerce
the government to give in to an unlawful demand shall, upon
application of the Department of Justice before a competent
Regional Trial Court, with due notice and opportunity to be heard
given to the organization, association, or group of persons
concerned, be declared as a terrorist and outlawed organization,
association, or group of persons by the said Regional Trial Court.
24
<http://www.philstar.com/Article.aspx?
articleId=607149&publicationSubCategoryId=63> (last visited:
September 1, 2010).
25
G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
26
Rollo (G.R. No. 178581), pp. 111-125.
27
Supra note 22 at 896.
28
Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast
v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.
29
Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Comelec, G.R. No. 132922, April 21, 1998, 289 SCRA 337.
30
Constitution, Article VIII, Section 1.
31
63 Phil. 139, 158 (1936).
32
Republic Telecommunications Holding, Inc. v. Santiago, G.R. No.
140338, August 7, 2007, 529 SCRA 232, 243.
33
499 Phil. 281, 304-305 (2005).
34
Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).
35
Allied Broadcasting Center v. Republic, G.R. No. 91500, October
18, 1990, 190 SCRA 782.
36
314 Phil. 131 (1995).
37
G.R. No. 89651, November 10, 1989, 179 SCRA 287.
38
De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17,
2010, citing Buckley v. Valeo, 424 U.S. 1, 113-118 (1976) and
Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148
(1974).
39
561 U.S. [unpaginated] (2010). Volume 561 is still pending
completion.
40
Id. citing Babbitt v. Farm Workers, supra.
41
2339B. Providing material support or resources to designated
foreign terrorist organizations. (a) Prohibited Activities.
(1) Unlawful conduct. Whoever knowingly provides material
support or resources to a foreign terrorist organization, or attempts
or conspires to do so, shall be fined under this title or imprisoned
not more than 15 years, or both, and, if the death of any person
results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in
subsection (g)(6)), that the organization has engaged or engages in
terrorist activity (as defined in section 212(a)(3)(B) of the
Immigration and Nationality Act), or that the organization has
engaged or engages in terrorism (as defined in section 140(d)(2) of
the Foreign Relations Authorization Act, Fiscal Years 1988 and
1989).
42
Doe v. Bolton, 410 U.S. 179, 188-189 (1973).
43
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509,
January 18, 2005, 449 SCRA 1, 10, citing Allied Broadcasting Center,
Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
44
Lawrence H. Tribe, American Constitutional Law Vol. I, p.332 (3rd
ed. 2000), citing Steffel v. Thompson, 415 U.S. 452 (1974) and Ellis
v. Dyson, 421 U.S. 426 (1975).
45
Vide Garcia v. Commission on Elections, G.R. No. 111511, October
5, 1993, 227 SCRA 100, 117, stating that "all powers are
susceptible of abuse. The mere possibility of abuse cannot,
however, infirm per se the grant of power[.]"
46
RA 9372 defines the crime of terrorism as follows:
SEC. 3. Terrorism. Any person who commits an act punishable
under any of the following provisions of the Revised Penal Code:
a. Article 222 (Piracy in General and Mutiny in the High Seas or in
the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
c. Article 134-a (Coup detat), including acts committed by private
persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction); or under
1. Presidential Decree No. 1613 (The Law on Arson);

2. Republic Act No. 6969 (Toxic Substances and Hazardous and
Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability
Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway
Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the
Laws on Illegal and Unlawful Possession, Manufacture, Dealing in,
Acquisition or Disposition of Firearms, Ammunitions or Explosives)
thereby sowing and creating a condition of widespread and
extraordinary fear and panic among the populace, in order to
coerce the government to give in to an unlawful demand shall be
guilty of the crime of terrorism and shall suffer the penalty of forty
(40) years of imprisonment, without the benefit of parole as
provided for under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.
47
479 Phil. 265 (2004).
48
421 Phil. 290 (2001).
49
Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It
shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines,
the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business,
transaction, contract or application with the Government x x x.
(Underscoring supplied)
50
Romualdez v. Hon. Sandiganbayan, supra at 281.
51
Id. at 288.
52
G.R. No. 167011, April 30, 2008, 553 SCRA 370.
53
Punishable under Section 45(j) in relation to Section 10(g) or (j) of
Republic Act No. 8189.
54
Romualdez v. Commission on Elections, supra at 284.
55
Estrada v. Sandiganbayan, supra at 421-450.
56
Id. at 353-356.
57
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186,
195.
58
Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956,
March 31, 1992, 207 SCRA 712, 719-720.
59
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the
Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003), note 39,
citing Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235, 261-262 (1994).
60 74
Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert.
489 SCRA 160, 239; Romualdez v. Commission on Elections, supra denied, 517 U.S. 1119, 134 L. Ed. 2d 519 (1996); Chapman v.
at 418, note 35. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States
v. Powell, 423 U.S. 87, 46 L. Ed. 2d 228 (1975); United States v.
61
Estrada v. Sandiganbayan, supra at 429. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
62
Constitution, Art. III, Sec. 4. 75
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the
63
The power to define crimes and prescribe their corresponding Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003).
penalties is legislative in nature and inherent in the sovereign 76
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA
power of the state to maintain social order as an aspect of police 186; People v. Dela Piedra, G.R. No. 121777, January 24, 2001, 350
power. The legislature may even forbid and penalize acts formerly SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009,
considered innocent and lawful provided that no constitutional 600 SCRA 476.
rights have been abridged. (People v. Siton, G.R. No. 169364,
77
September 18, 2009, 600 SCRA 476, 485). Republic Act No. 9372, Sec. 3, supra.
64 78
Romualdez v. Commission on Elections, supra at 643. Rumsfield v. Forum for Academic and Institutional Rights, Inc.,
547 U.S. 47, 164 L.Ed 2d 156 (2006).
65
Id. at 645-646.
79
Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed.
66
David v. Macapagal-Arroyo, supra at 238. 834, 843-844 (1949); Cf Brown v. Hartlage, 456 U.S. 45, 71 L. Ed 2d
67
Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, 732, 742 (1982) that acknowledges: x x x The fact that such an
supra. agreement [to engage in illegal conduct] necessarily takes the form
of words does not confer upon it, or upon the underlying conduct,
68
Estrada v. Sandiganbayan, supra at 354. the constitutional immunities that the First Amendment extends to
speech.Finally, while a solicitation to enter into an agreement
69
Id. arguably crosses the sometimes hazy line distinguishing conduct
70 from pure speech, such a solicitation, even though it may have an
539 U.S. 113, 156 L. Ed. 2d 148 (2003).
impact in the political arena, remains in essence an invitation to
71
Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972). engage in an illegal exchange for private profit, and may properly
be prohibited.
72
Estrada v. Sandiganbayan, supra at 355.
73
Id.
80
Vide Eugene Volokh, Speech as Conduct: Generally Applicable the questioned law. The specific questions raised by the petitioners
Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," against R.A. 9372 may be raised in the proper forum if and when an
and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1315 (2005). actual controversy arises and becomes ripe for adjudication.

CONCURRING OPINION ROBERTO A. ABAD

Associate Justice
ABAD, J.:

I concur with the majority opinion in dismissing the various petitions

filed before this Court challenging the validity of Republic Act (R.A.)
9372. I feel a need to emphasize, however, that as the grounds for
dismissal are more procedural than substantive, our decision in
these consolidated cases does not definitively uphold the validity of