REPUBLIC OF THE PHILIPPINES Supreme Court Manila

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner VersusG.R. No. ____________

EXECUTIVE SECRETARY For Certiorari and EDUARDO R. ERMITA, LT. Prohibition With GEN. GENEROSO SENGA, Application for Temporary and DIRECTOR GENERAL Restraining Order. ARTURO LOMIBAO, Respondents. X-------------------------------------X

PETITION FOR CERTIORARI AND PROHIBITION

With Application for a Temporary Restraining Order PETITIONER, ALTERNATIVE LAW GROUPS, INC., by counsel, respectfully states: History repeats itself. On July 27, 2003, President Gloria Macapagal-Arroyo issued Proclamation No. 427 and General Order No. 4, both declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. Several petitions were filed before this Honorable Court challenging the validity of the twin presidential issuances. In dismissing the petitions, the Supreme Court ruled in Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004: The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that military tribunals have replaced civil courts in the theater of war or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers. On February 24, 2006, President Gloria Macapagal-Arroyo issued Proclamation No. 1017 and General Order No. 5, both declaring a state of emergency and calling out the Armed Forces to prevent and suppress alleged lawless violence, insurrection or rebellion, and acts of terrorism. Unlike in Sanlakas, however, the police and military replaced civil courts, they have taken the function of civil government, and there is curtailment of civil and political rights. The President has exercised judicial and legislative powers. The President has exercised martial law powers.

Even Article II, Section 4 of the 1987 Constitution was mangled, and the 1973 Martial Law version was resurrected, to justify the twin issuances.
Under these changed circumstances, the Honorable Courts decision in Sanlakas Proclamation No. 1017 and General Order No. 5 should be struck down and declared null and void.

v. Executive Secretary should not be repeated.

NATURE AND PURPOSE OF THE PETITION This is a Petition, under Rule 65 of the Rules of Court, for certiorari and prohibition, with an application for the issuance of a temporary restraining order and/or a writ of preliminary injunction. The Petition prays that this Honorable Court issue: 1) A judgment declaring null and void, for being unconstitutional,

Proclamation No. 1017 entitled, PROCLAMATION DECLARING A STATE OF NATIONAL EMERENCY and General Order No. 5 entitled, DIRECTING THE ARMED FORCES OF THE PHILIPPINES IN THE FACE OF NATIONAL EMERGENCY, TO MAINTAIN PUBLIC PEACE, ORDER AND SAFETY AND TO PREVENT AND SUPPRESS LAWLESS VIOLENCE; 2) A judgment commanding the respondents and all persons acting on the

basis of Proclamation No. 1017 and General Order No. 5 to cease from implementing the said Proclamation and Order. 3) No. 5. A Temporary Restraining Order and/or Writ of Preliminary Injunction

enjoining the respondents from implementing Proclamation No. 1017 and General Order

The Petitioner undertakes to submit certified true copies of the assailed issuances. In view of the strict security in Malacanang Palace, certified true copies

cannot be immediately obtained. The Petitioner respectfully manifests that, pursuant to Section 1, Rule 129 of the Rules of Court, the Honorable Court may take judicial notice of Proclamation No. 1017 and General Order No. 5, as official acts of the executive department. For the Honorable Courts easy reference, however, a copy each of the

questioned Proclamation and Order are attached to this Petition as Annexes A and B, respectively. BASIS OF THE PETITION

The Petition invokes the Honorable Courts exercise of its sacred constitutional obligation to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Art. VII, Sec. 1) The Petition is filed as there is no remedy of appeal

and neither is there available to petitioners any other plain, speedy and adequate remedy, administrative or otherwise, in the ordinary course of law.

The Petition seeks the issuance of the writ of certiorari, prohibition and mandamus, on the basis of the following: GROUNDS FOR GRANTING THE PETITION PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE THE FOLLOWING PROVISIONS OF THE 1987 CONSTITUTION: ARTICLE II, SECTION 4, WHICH PROVIDES THAT THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND PROTECT THE PEOPLE. ARTICLE III, SECTION 1, WHICH PROVIDES THAT NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED THE EQUAL PROTECTION OF THE LAWS. ARTICLE III, SECTION 2, WHICH GUARANTEES THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES. ARTICLE III, SECTION 4, WHICH GUARANTEES THE FREEDOM OF SPEECH, OF EXPRESSION, AND OF THE PRESS, AND THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES. ARTICLE III, SECTION 7, WHICH GUARANTEES THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN. ARTICLE VI, SECTION 23, WHICH GRANTS THE CONGRESS THE POWER TO AUTHORIZE THE PRESIDENT TO EXERCISE EMERGENCY POWERS IN TIMES OF NATIONAL EMERGENCY. ARTICLE XII, SECTION 17, WHICH PROVIDES THAT THE STATE MAY TEMPORARILY TAKE OVER OR DIRECT THE OPERATION OF ANY PRIVATELY OWNED PUBLIC UTILITY OR BUSINESS AFFECTED WITH THE PUBLIC INTEREST. THE EXECUTIVE, IN ISSUING THE ASSAILED PROCLAMATION AND GENERAL ORDER, AND IN IMPLEMENTING THEM, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS THEY TRANSGRESSED CLEAR CONSTITUTIONAL GUARANTEES AND PARAMETERS OF GOVERNMENTAL POWERS.

THE PARTIES The Petitioner 1. Petitioner Alternative Law Groups, Inc. (ALG) is a non-stock, non-

profit corporation duly organized and existing under Philippine laws, with address at Room 215, Institute of Social Order, Ateneo de Manila University, Loyola Heights, Quezon City. ALG is represented in this Petition by its Council Chairperson, Atty. Arlene J. Bag-ao. The petitioner is a coalition of seventeen (17) legal resource non-

governmental organizations that engage in developmental or alternative lawyering and work with the poor and marginalized groups in different parts of the country.

2.

The petitioner has the following organizations as members:

2.1. Albert Schweitzer Association, Philippines, Inc. (ASAP), a nongovernment organization that provides free legal assistance to children-inconflict-with-law. The core of ASAP consists of young professionals and lawyers who offer volunteer services, pursuant to the organizations credo that no child should be unnecessarily detained due to circumstances beyond his/her control. ASAP also works toward the reintegration of former child detainees into their families and into society in general. 2.2. Alternative Law Research and Development Center, Inc., (ALTERLAW), a legal-resource non-government organization that is committed to the promotion and protection of human rights and responding to issues of social inequity in a pro-active, creative and progressive manner. Since its establishment in 1992, ALTERLAW has worked for the rights of marginalized groups including the migrant workers, urban poor, children, informal sector. 2.3. Ateneo Human Rights Center (AHRC), one of the first universitybased institutions engaged in the promotion of peace, development and human rights in the Philippines. Established in October 1986, the Center seeks to realize its mandate of protecting and promoting human rights advocates among lawyers, law students and grassroots leaders, the monitoring of the human rights situation in the Philippines and abroad, research and publication, public education on peace, development and human rights, legal assistance to indigent victims of human rights abuses, law school curriculum development and values formation. 2.4. Balay Alternative Legal Advocates for Development in Mindanaw, Inc. (BALAOD Mindanaw), a non-stock, non-profit organization that aims to help in the advancement of the legal and justice issues of different marginalized sectors and communities in Mindanao in the context of active peoples participation in governance. BALAOD promotes paralegal formation, provides other legal services to marginalized sectors and communities, conducts capability-building interventions on local legislation and dispute resolution, provides a venue for networking and alternative legal assistance for law practitioners, law schools and law students, and facilitates the creation of a favorable policy environment responsive to the needs of marginalized sectors and communities.

2.5. Childrens Legal Bureau (CLB), Inc., a Cebu-based non-stock, nonprofit organization envisioning a just world for children. CLB is committed to empower communities in promoting justice for children through legal aid, training, advocacy and networking. Its services include providing legal services to abused children and children in conflict with the law, providing paralegal trainings to communities and children, policy development and advocacy related to childs rights. 2.6. Environmental Legal Assistance Center (ELAC), a nongovernmental organization that was organized to address the emerging challenge of environment lawyering especially in the rural areas where degradation of the environment is most felt. It aims to protect and assert environmental rights and equitable access to and control of natural resource use by communities in Palawan and the Visayas through effective developmental legal assistance and community-based resource management. ELAC envisions communities that are empowered and self determining stewards of natural resources. 2.7. Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA), a non-government organization established in Cebu City in 1983. It is an umbrella organization composed mostly of community-based groups pooling their resources together to assist the disadvantaged and the unprivileged sectors in society. Using free legal aid, rehabilitation of offenders and crime prevention programs, and covering the entire Province of Cebu, the target groups for its programs and services include: children and youth, children in conflict with law (CICL), former CICL, women and the urban poor. 2.8. Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), a social development organization promoting a sustainable and humane society through the empowerment of marginalized sectors in rural areas, especially among farmers and farm workers, to undertake their own development, participate fully in democratic processes and demand their rightful share in the stewardship of the land and the fruits of their labor. Its mission is to facilitate agrarian reform implementation and sustainable rural development with various stakeholders at the national and local level, especially farmers, farm workers toward the formation of sustainable integrated area a development (SIAD) communities. 2.9. Legal Rights and Natural Resources Center Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-KSK/FOEI-Phils.), a policy and legal research and advocacy institution that was organized as a nonstock, non-profit, non-partisan, cultural, scientific and research foundation duly registered with the Securities and Exchange Commission. The organization is also the official Philippine affiliate of Friends of the Earth International. The goal of LRC-KSK is to empower the marginalized and disenfranchised peoples directly dependent on our natural resources so as to able to effect ecologically sustainable, culturally appropriate, economically viable, gender sensitive, equitable uses, management, conservation and development of our natural resources. 2.10. Paglilingkod Batas Pangkapatiran Foundation (PBPF), a Mindanao-based non-governmental organization which seeks to capacitate peoples organizations so that they can effect legal change to serve the communitys interests for genuine empowerment and equity-led development. Established in April of 1990, the organization serves communities throughout Mindanao where it provides paralegal formation, legal assistance and support through research and litigation. It has four (4) major areas of work: environment, women and children and governance.

2.11. Participatory Research Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) FoundationPANAY, Inc., a non-government organization operating in Iloilo City, Antique, and other areas in Panay Island. It seeks to empower the grassroots and deprived sectors of society so that they can take control of their own destinies towards a sustainable and ecologically sound environment. 2.12. Pilipina Legal Resources Center (PLRC), a non-profit, social development agency that uses legal resources for the empowerment and development of women and disadvantaged communities. Organized in 1982 in Davao City, PLRC has engaged in legislative and policy reform, advocacy for judicial reform, legal literacy, organizational development, research, organizing and network building and technical support. Its current programs are focused on womens rights and reproductive rights, women in politics and governance, judicial reform in the Sharia Courts, and peace building in Mindanao. 2.13. Sentro ng Alternatibong Lingap Panligal (SALIGAN), a legal resource non-governmental organization doing developmental legal work with farmers, workers, the urban poor, women, and local communities. Founded in 1987, SALIGAN operates in different areas throughout the Philippines, through its main office in Quezon City and its branches in Bicol Region and in Mindanao. SALIGANs programs include Legal Education, Litigation, Policy Reform Work and Research and Publications. 2.14. Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), an organization of lawyers and indigenous peoples advocates that pioneered and continues to engage in development work among indigenous peoples in the Philippines. It was established in 1985 and had since implemented programs for the development of IP communities through: Developmental Legal Assistance, Legal Education and Outreach, Institutional Capability Building, Ancestral Domains Delineation and Resource Management Planning. 2.15. Tanggol Kalikasan (TK), a public interest environmental law office which envisions an empowered society that relates with its environment in just and sustainable manner for the equitable benefit of all Filipinos. Tanggol Kalikasans mission is to facilitate the empowerment of communities and institutions to manage their ecosystems through law and other creative mechanisms. Conscious of the power of an organized and informed citizenry, TKs programs are aimed at encouraging greater citizens participation in environmental law enforcement and policy-making in resource allocation. 2.16. Womens Legal Bureau (WLB), a non-government legal organization promoting and fighting for womens human rights in accordance with feminist and development perspectives and principles. Specifically, its mission is to provide feminist legal services and actively engage in advocacy together with other womens groups to transform the law and the legal system in furtherance of the right of women to self-determination and the advancement of their dignity, rights and leadership. For most of its 12 years of operations, WLB has been at the forefront of pioneering initiatives to promote and protect womens human rights in the country. 2.17. Womens Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD), a feminist legal resource institution for women committed to advancing womens human rights through feminist methodologies in the critique and analysis of law and the legal system. Through its core program (Feminist Counseling and Legal Services), WomenLEADs core of lawyers and paralegals engage in litigation to challenge laws, and the legal culture which reinforces biases against women. Its other programs include training and education, campaign on womens issues, and research and publication.

3.

With the exception of the Ateneo Human Rights Center (AHRC), all ALG The AHRC does not have

member organizations are also duly registered organizations.

a legal personality separate from the Ateneo de Manila University, but it enjoys autonomy in its programs and operations. of Filipino citizens. ALG member organizations are composed

4.

The petitioner files this case as a real party in interest and, as

representative of its member organizations and these organizations individual members, as a class suit in their capacity as taxpayers and citizens, for themselves and in behalf of all taxpayers and citizens similarly situated. The petitioner files this Petition for itself

and other organizations and individual citizens who are similarly situated but are so numerous that it is impracticable to bring them all before the Honorable Court.

5.

The petitioner can be served summons and other processes through the

undersigned counsel at the address stated below.

The Respondents 6. Secretary. Public respondent Eduardo R. Ermita is the incumbent Executive He is sued in his official capacity as a public official. Respondent Ermita

may be served summons and other processes at his office at Malacaang Palace, Manila. Public respondent Executive Secretary is primarily charged with the duty of issuing and implementing the questioned Proclamation No. 1017 and General Order No. 5.

7.

Public respondent Gen. Generoso Senga and Gen. Arturo Lomibao are

the incumbent Chief of Staff of the Armed Forces, and Chief of the Philippine National Police, respectively. They are primarily charged with the duty of implementing the Public respondent Senga can

assailed Proclamation No. 1017 and General Order No. 5.

be served summons and other processes at his office at Camp Aguinaldo, Quezon City,

while public respondent Lomibao can be served summons and other processes at his office at Camp Crame, Quezon City.

JURISDICTIONAL ALLEGATIONS 8. Pursuant to Section 1, Rule 65 of the Rules of Court, the petitioner

hereby certifies, as shown by the attached affidavits, that, it has not commenced any action involving the same issues before the Supreme Court, the Court of Appeals, or different divisions thereof, or before any other tribunal or agency, and that to the best of its knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. The petitioner also certifies that should it hereafter learn that a similar action or proceeding has been filed or is pending in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, it undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof, within five (5) days therefrom.

9.

The petitioner further certifies that upon the filing of this Petition, it has Proof of service of copies of this Petition on the

paid the required docket fees.

respondents and on the Solicitor General is submitted together with this Petition.

TIMELINESS AND URGENCY OF THE PETITION 10. On 24 February 2006, President Gloria Macapagal Arroyo issued

Proclamation No. 1017, entitled, PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY. On the same day, President Gloria Macapagal Arroyo issued General

Order No. 5 (Implementing Proclamation No. 1017).

11.

As a result of such issuance, the Executive, the Armed Forces and the

National Police have started the implementation of, and continues to implement, the assailed issuances with the unconstitutional provisions assailed in this Petition. The

respondents continuously commits acts constituting grave abuse of discretion amounting to lack or excess of jurisdiction in violation of the rights of the petitioner and other taxpayers and citizens.

12.

This Petition is timely filed to question the validity of the said This

Proclamation No. 1017 and General Order No. 5 on constitutional grounds.

Petition requires urgent resolution as the issues involved pertain to fundamental freedoms guaranteed under the Constitution and the very foundations of our system of government.

13.

The principle of exhaustion of administrative remedies does not apply to The

this case since the issue involved is a purely legal or constitutional question.

principle of hierarchy of courts likewise does not apply since it generally applies to cases involving factual questions. The instant case raises constitutional issues of

transcendental importance to the public. The petitioner respectfully submits that the Honorable Court can resolve to exercise primary jurisdiction over the instant case.

THE MATERIAL FACTS 1. In the early morning of 24 February 2006, the military announced that it

has foiled a plot to unseat President Gloria Macapagal-Arroyo. Army Brigadier General Danilo Lim was relieved as commander of the First Scout Ranger Regiment and taken into custody, while Marine Captain Ariel Querubin was placed under investigation over the alleged plot.

2.

Before noon of the same day, President Arroyo issued Presidential

Proclamation No. 1017 placing the country under a state of national emergency, citing a clear and present danger posed by the alleged tactical alliance among groups to forcibly grab power. Proclamation 1017 provides:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by 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 dulyconstituted 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 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; 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 Presidentwhenever it becomes necessarymay call out (the) armed forces to prevent or suppressrebellion, 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, Article12 of the Constitution do hereby declare a State of National Emergency. 3. On the same day, the President issued General Order No. 5 entitled,

DIRECTING THE ARMED FORCES OF THE PHILIPPINES IN THE FACE OF NATIONAL EMERGENCY, TO MAINTAIN PUBLIC PEACE, ORDER AND SAFETY AND TO PREVENT AND SUPPRESS LAWLESS VIOLENCE. The General Order provides: 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

10

the Philippine National Police (PNP), to prevent and suppress acts of terrorism, 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. 4. During the press conference held by members of the Cabinet, Presidential

spokesperson Ignacio Bunye announced that all government-organized activities related to the 20th anniversary celebration of the 1986 EDSA Revolution have been canceled and the rally permits issued to various groups were subsequently revoked.

5.

During the day, rallies of several groups of protesters were dispersed.

The police used teargas, water canons and truncheons to disperse marchers who were stopped at the corner of Edsa and Santolan. The protest groups stationed at the People Power monument and those who were in Cubao, Quezon City were also dispersed.

6.

While the police were breaking up the protest rally, columnist and

University of the Philippines Professor Randy David and activist-lawyer Argee Guevarra were arrested after breaking away from a group of marchers who were on their way to the EDSA Shrine to negotiate with Quezon City Police Director Chief Superintendent Nicasio Radovan Jr. They were taken to Camp Karingal in Quezon City for questioning.

7.

In compliance with Proclamation 1017, National Telecommunications

Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. Solis asked for

"balanced reporting" from broadcasters when covering the events surrounding the alleged 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 during times when the national security is threatened.

11

8.

That same evening, the protesters joined the EDSA 1 celebration held in

Makati City and like what happened earlier, hundreds of riot police, wielding truncheons and shields, moved in to disperse protesters who gathered on Ayala Avenue and Paseo de Roxas, pushing them in the direction of EDSA.

9.

On 25 February 2006, at around 12:20 in the morning, operatives of the

Criminal Investigation and Detection Group (CIDG) raided the Daily Tribune office at the GLC Building on T.M. Kalaw Street in Manila. The raiding team took with them stories submitted by reporters, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame were stationed inside the editorial and business offices of the Tribune, on the 8th and 9th floors, respectively. Policemen from the Manila Police District were stationed outside the building.

10.

A few minutes after the warrantless search of police into the Tribune's

offices, according to various reports, the police were also seen surrounding the premises of the printing office of another pro-opposition newspaper, Malaya, and its sister publication, the tabloid Abante.

11.

In order to explain what happened during the warrantless search of the

Tribune, the Philippine National Police Chief Director General Arturo Lomibao warned that the police will take over news groups that will not conform to standards set by the government. He said police will implement standards and guidelines for media.

12.

Subsequently, Anakpawis Partylist Representative Crispin Beltran was

arrested as he was leaving his farmhouse in Bulacan. Beltran, his wife, and their five companions were invited for questioning to Camp Crame by operatives of the CIDG. In Camp Crame, police showed them an arrest warrant issued against Beltran in 1985. Beltrans lawyer Atty. Romeo Capulong said that he told the police that the warrant, which stemmed from an inciting to rebellion case filed by the Marcos regime, had long been quashed. Yet police refused to release the congressman because, Capulong was

12

told, only Philippine National Police Chief Director General Arturo Lomibao could decide what to do with Beltran.

13.

Bayan Muna Partylist Representative Satur Ocampo eluded arrest at an

opposition-sponsored forum at Sulo Hotel in Quezon City in the morning, although his car and two drivers, identified only as Roel and Art, were taken into custody.

14.

Retired Major General Ramon Montao, a former head of the defunct

Constabulary, was also arrested by operatives of the CIDG to Camp Crame to answer some charges. Montao was with his wife and some golfmates at the Orchard Gold

and Country Club in Dasmarias, Cavite when the CIDG men approached and asked him to go with them.

15.

As of the preparation of the petition, both Representative Beltran and

General Montao are yet to be released from police custody. ISSUE

THE

MAIN

ISSUE

IN

THIS

PETITION

IS

WHETHER

OR

NOT

THE

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING AND IMPLEMENTING PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5. The resolution of this principal issue depends, in turn, on the resolution of the constitutional issues raised at the outset of this petition, to wit:

IS PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 NULL AND VOID FOR BEING UNCONSTITUTIONAL AS IT VIOLATES ARTICLE II, SECTION 4, WHICH PROVIDES THAT THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND PROTECT THE PEOPLE? IS PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 NULL AND VOID FOR BEING UNCONSTITUTIONAL AS IT VIOLATES FUNDAMENTAL LIBERTIES GUARANTEED BY THE BILL OF RIGHTS, SPECIFICALLY:

13

ART III, SECTION 1, WHICH PROVIDES THAT NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED THE EQUAL PROTECTION OF THE LAWS; ARTICLE III, SECTION 2, WHICH GUARANTEES THE RIGHT OF THE PEOPLE TO BE SCURE IN THEIR PERSONS, HOUSES, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; ARTICLE III, SECTION 4, WHICH GUARANTEES THE FREEDOM OF SPEECH, OF EXPRESSION, AND OF THE PRESS, AND THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES. IS PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY CONSTITUTE USURPATION BY THE EXECUTIVE OF THE POWERS VESTED IN THE LEGISLATIVE UNDER ARTICLE VI, SECTION 23, WHICH GRANTS THE CONGRESS THE POWER TO AUTHORIZE THE PRESIDENT TO EXERCISE EMERGENCY POWERS IN TIMES OF NATIONAL EMERGENCY? IS PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE ARTICLE XII, SECTION 17, WHICH PROVIDES THAT THE STATE MAY TEMPORARILY TAKE OVER OR DIRECT THE OPERATION OF ANY PRIVATELY OWNED PUBLIC UTILITY OR BUSINESS AFFECTED WITH THE PUBLIC INTEREST? The petitioner respectfully submits that, in issuing and implementing the questioned Proclamation No. 1017 and General Order No. 5, the Executive acted with grave abuse of discretion amounting to lack or excess of jurisdiction and violated the clear provisions of the 1987 Constitution. The respondents implementation of such void and unconstitutional order is a continuing commission of grave abuse of discretion amounting to lack or excess of jurisdiction and a clear transgression of the Constitution. Such unlawful implementation of the unconstitutional issuances must, perforce, be stopped and the respondents and all others acting on the basis of the Proclamation No. 1017 and General Order No. 5 must be directed to strictly comply with the mandates of the Constitution.

14

DISCUSSION Before the discussion of the constitutional issues, it is important to establish the petitioners legal personality to impugn the validity of Proclamation No. 1017 and General Order No. 5.

PETITIONER HAS THE REQUISITE STANDING TO INSTITUTE THE PRESENT ACTION THE PETITIONER HAS THE LEGAL
STANDING AS AN ORGANIZATION OF CITIZENS OF THE PHILIPPINES WHO HAVE PERSONAL AND SUBSTANTIAL INTEREST IN THE OUTCOME OF THE CASE.

1.

Petitioner respectfully submits that, as an organization of citizens of the

Philippines seeking to enforce a Constitutional right, Petitioner has standing to sue upon this suit to declare unconstitutional Proclamation No. 1017 and General Order No. 5. Furthermore, Petitioner claims that, being a matter of transcendental importance, this Honorable Court must take cognizance of this case and brush aside procedural requirements in order to perform its Constitutional duty to determine whether or not there has been grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government.1 As Mr. Justice Isagani A. Cruz declared in his dissenting opinion in the case of Guazon v. De Villa,2 It is not only the owner of the burning house who has a right to call the firemen. Everyone has the right and responsibility to prevent the fire from spreading even if he lives in the other block.

2.

At the outset, it bears emphasis that in Chavez v. PEA-Amari,3 this

Honorable Court categorically stated: The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply with its
1 2 3

PHIL CONST. art. VIII, 1 181 SCRA 623 384 SCRA 152

15

constitutional duties. There are two constitutional issues involved here. First is the right of citizens to information on matters of public concern. x x x Moreover, the petition raises matters of transcendental importance to the public. In Chavez v. PCGG, the Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental importance to the public, thus "Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of 'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of 'paramount public interest,' and if they 'immediately affect the social, economic and moral well being of the people.' Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest. xxx xxx xxx

In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced 'is a public right recognized by no less than the fundamental law of the land.' Legaspi v. Civil Service Commission, while reiterating Taada, further declared that 'when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right.' Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned contract for the development, management and operation of the Manila International Container Terminal, 'public interest [was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country and the magnitude of the financial consideration involved.'

16

We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner's standing. Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed." We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights to information and to the equitable diffusion of natural resources matters of transcendental public importance, the petitioner has the requisite locus standi. (emphasis supplied) 3. It is submitted that the doctrines laid down by this Honorable Court find

direct bearing to the present case.

PETITIONER IS A GROUP OF CITIZENS OF THE PHILIPPINES SEEKING TO ENFORCE A CONSTITUTIONAL RIGHT. 4. The settled rule is that the party who impugns the validity of a statute

must have a personal and substantial interest in the case such that the said party has sustained, or will sustain direct injury as a result of its enforcement.4 It must appear

that the person complaining has been or is about to be denied some right or privilege to which the said party is lawfully entitled or that the said party is in danger of being subjected to some burdens or penalties by reason of the statute complained of. These requirements, the Petitioner humbly submits, are adequately met in this case.

5.

This Honorable Court has ruled that when suing as a citizen, the interest

of the petitioner assailing the constitutionality of a statute must be direct and personal. The citizen must be able to show, not only that the law or any government act is invalid, but also that s/he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that s/he suffers thereby in some indefinite

People v. Vera, 65 Phil. 56 (1937).

17

way. It must appear that the person complaining has been or is about to be denied some right or privilege to which s/he is lawfully entitled or that s/he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.5

6.

However, the Court, in the recent case of Francisco et. al. v. House

Speaker et. al.6 clarified this when it ruled that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.7 This reiterates the case of Taada v. Tuvera8 where the

Honorable Court said that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and as such is interested in the execution of the laws. Thus, the petitioner need not show that s/he has any legal or special interest in the result of the action.

7.

In this case, the Petitioner has satisfied the two basic requisites laid down

by jurisprudence9 to sustain petitioners legal standing, to wit: (1) the enforcement of a public right, and (2) espousal of the said right by a Filipino citizen. Indeed, herein

Petitioner is a group of citizens of the Philippines, part of the general public, who are seeking to enforce their right against the deprivation of life, liberty or property without due process of law, the right to be secure in their persons, houses, and effects, the right against unreasonable searches and seizures, and the right to information.

5 6 7

Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 [2000]; Gonzales v. Narvasa,, 337 SCRA 733 [2000]; TELEBAP v. COMELEC, 289 SCRA 337 [1998]. G.R. 160261, November 10, 2003 This is a reiteration of the early decisions, most notably, Severino v. Governor General (16 Phil. 366, 378 [1910]), where the court has recognized the right of citizens to file petitions to enforce a public right. The Court said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to the proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error. No reason exists in the case at bar for applying the general rule insisted upon by counsel for respondent. The circumstances which surround this case area different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. 136 SCRA 27, 36-37 (1985).

18

THIS CASE INVOLVES CONSTITUTIONAL ISSUES THAT ARE

OF TRANSCENDENTAL IMPORTANCE

8.

The Petitioner respectfully asks this Honorable Court to rule on the

substantial constitutional issues raised herein because of their transcendental importance to public interest. As early as the Emergency Power Cases,10 this Honorable Court has allowed suits where serious constitutional issues are involved, notwithstanding the absence of direct interest in the subject of the litigation, since, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside technicalities of procedure. said11: Nevertheless, where a most compelling reason exists, such as when the matter is of transcendental importance and paramount interest to the nation, the Court must take the liberal approach that recognizes the legal standing of nontraditional plaintiffs, such as citizens and taxpayers, to raise constitutional issues that affect them. This Court thus did so in a case that involves the conservation of our forests for ecological needs. Until an exact balance is struck, the Court must accept an eclectic notion that can free itself from the bondage of legal nicety and hold trenchant technicalities subordinate to what may be considered to be of overriding concern. 9. This same liberal policy on locus standi has been applied by this More particularly, the Court

Honorable Court in various cases where the petitioner was able to craft an issue of transcendental significance to the people, as when the issues raised involve public rights.12

10.

In the discussion above and in the succeeding discussion, the Petitioner

has sufficiently shown that the constitutional questions raised in this petition are of transcendental significance to the life of the nation and of its people. The issues raised herein go to the very heart of our system of government, its built-in safeguard of checks
9 10 11 12

Chavez v. PEA-Amari Coastal Bay Development Corporation, 384 SCRA 152 [2002] Araneta v. Dinglasan, 84 Phil. 368; Rodriguez v. Gella, 93 Phil. 603. Cruz v. Secretary of DENR, G.R. No. 135385, December 6, 2000. Araneta v. Dinglasan, 84 Phil. 368 (1949); Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v. Executive Secretary, 206 SCRA 290 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v.

19

and balances, as well as the basic right of its citizens to information on matters of public concern.

11.

Indeed, objections to citizens suits for lack of sufficient personality or

interest are, in the main, procedural matters.13 Considering the importance to the public interest of the case at bar, and in keeping with the Courts duty, under the Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court must take cognizance of this case and rule upon the arguments put forward in this petition.

12.

Considering the foregoing, the petitioner has the personality to institute

the present petition.

THE PETITION POSES AN ACTUAL CONTROVERSY

13.

A requisite for the exercise of judicial review is that there must be an

actual case or controversy, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution,14 and that the question before it must be ripe for adjudication, that is, the governmental act being challenged has had a direct adverse effect on the individual challenging it.15

14.

In Angara v. Electoral Commission,16 the Court had occasion to rule that

when the actions of one branch of the government conflicts with that of another, there is an actual case that is ripe for judicial review:

13

14 15 16

PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Francisco et al. v. House Speaker et al (G.R. 160261, November 10, 2003). Kapatiran ng mga Naglilingkod Sa Pamahalaan ng Pilipinas, Inc. v. Hon. Bienvenido Tan, G.R. No. L81311, June 30, 1988; Bugnay Construction and Development Corporation, v. Hon. Crispin C. Laron, G.R. No. 79983, August 10, 1989. Joya v. PCGG, G.R. No. 96541, August 24, 1993 PACU v. Secretary of Education, 97 Phil. 806, 810 (1955); Tan v. Macapagal, 43 SCRA 678 (1972). 63 Phil 139 (1936).

20

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed judicial supremacy which properly is the power of judicial review under the Constitution. This power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. (Emphasis supplied)

15.

Proclamation No. 1017 and General Order No. 5 has already been

implemented, and that fact alone is prejudicial to the rights of Petitioner. As stated earlier, the consequences of illegal warrantless arrests of civil society leaders, dispersals of peaceful assemblies and the continuous crackdown on media establishments constitute a breach of the fundamental civil and political rights.

16.

The power of the courts to declare a law unconstitutional arises only

when the interests of litigants require the use of that judicial authority for their protection against actual interference, a hypothetical threat being insufficient.17 The

injury that Petitioners are sustaining by the issuance of Proclamation No. 1017 and General Order No. 5 cannot be deemed a mere hypothetical threat. The certainty of sanctions in case of a failure to adhere to the said Proclamation No. 1017 and General Order No. 5 exposes violators to immediate injury. In fact, this Honorable Court has already ruled that a threat of sustaining immediate injury is sufficient to warrant judicial review:

17

PACU v. Secretary of Education, 97 Phil. 806 (1955), citing United Public Works v. Mitchell, 336 US 75.

21

With particular regard to the requirement of proper party as applied in the cases before us, we hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of.18 (Emphasis supplied)

17.

It is significant to note that the Court has adopted the policy of taking

jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people.19 The Court categorically ruled: The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court dims in light of the importance of the constitutional issues raised by the petitioner.20

PETITIONER MAY SEEK RECOURSE DIRECTLY WITH THIS HONORABLE COURT

18.

It is not denied that the Supreme Court is a court of last resort, and must

so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition.21 However, in cases involving compelling issues and those which are of paramount interest and importance may be directly filed with this Honorable Court. Thus, in Kilosbayan v. Guingona,22 this Honorable Court brushed aside the hierarchy of courts due to the importance of the issues therein to determine whether or not the branches have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them

18 19 20 21 22

citing Ex Parte Levitt, 303 US 633. (Emphasis supplied) Id.

Macalintal v. Comelec, G.R No. 157013 (July 10, 2003).

Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE,

See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994]; People v. Court of Appeals, 301 SCRA 566 (1999). 232 SCRA 110.

22

19.

In Chavez v. PEA-Amari, this Honorable Court had occasion to state:

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of transcendental importance to the public. 22 The Court can resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.

20.

Moreover, in Santiago v. Vasquez,23 this Honorable Court ruled that

petitions for certiorari, prohibition, or mandamus, though cognizable by other courts, may directly be filed with the Supreme Court if the redress desired cannot be obtained in the appropriate courts or where exceptional compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

The petition shall now go to the substantial constitutional issues.

THE PRESIDENT COMMITTED GRAVE ABUSE OF DISCRETION IN THE EXERCISE OF HER CALLING-OUT POWER UNDER SECTION 18, ARTICLE VII OF THE 1987 CONSTITUTION AND IN THE APPLICATION OF SUCH POWER.

21.

The 1987 Constitution of the Republic of the Philippines is a pivotal point

in our recent political history -- its birth a glaring reaction to a brand of despotism spanning enormous proportions. Article III or the Bill of Rights stands as our sentinel, safeguarding our citizenry from a horrific political past. Thus, it is with no wonder why these very provisions are deemed self-executory for they can be readily invoked by anyone whose fundamental rights have been transgressed. The Bill of Rights stands as the very foundation of our democracy. Hence, all other provisions of the Constitution must necessarily strive to keep such rights intact.

23

205 SCRA 152.

23

THE PRESIDENTS COMMANDER-IN-CHIEF POWERS ARE GRADUATED, THE POWER TO CALL OUT THE ARMED FORCES AS THE MOST BENIGN

22.

Article VII, Section 18 basically lays down the powers of the President as

the Commander-in-Chief of the Philippine Armed Forces. Such powers are threefold, to wit: a. To call out the armed forces of the Philippines, whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion; b. To suspend the privilege of the writ of habeas corpus; c. To declare martial law.

23.

Said powers have also been interpreted as graduated, with the power to

declare martial law as being the most drastic and the power to call out the armed forces as the most benign. As the Court intoned in Integrated Bar of the Philippines vs.

Zamora (G.R. No. 141284. August 15, 2000):

The calling out power is considered to be the lesser and more benign power. Unlike in the power to suspend the privilege of the writ of habeas corpus or the power to proclaim martial law in relation to which the Constitution has empowered Congress to revoke such suspension or proclamation and the Supreme Court to review the sufficiency of the factual basis thereof, there is no such equivalent provision dealing with the revocation or review of the of the Presidents action to call out the armed forces, a distinction which places the calling out power in the category different from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus.

24.

This was affirmed in the case of Sanlakas v. Reyes (G.R. No. 159085.

February 3, 2004): The above provision grants the President, as Commander-in-Chief, a sequence of graduated power[s] 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.

24

25.

Granted that such calling out power is the most benign of the three, it is

worthy to note Justice Punos separate opinion in Integrated Bar of the Philippines vs.

Zamora, supra:

Even as it may be conceded that the calling-out power may be lesser power compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-inChief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded.

26.

Thus to such a power, one must remain vigilant for any abuses thereto.

For even if such power is vested on the President by the Constitution, it bears none of the congressional and judicial checks inherent in the other two powers. Moreover,

since it is the most benign of all the Commander-in-Chief powers, all the more it should not transgress upon basic civil rights and liberties of the people. Significantly, Article VII, Section 18 of the 1987 Constitution states: 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 where civil courts are able to function, nor automatically suspend the privilege of the writ.

This is where Proclamation No. 1017 clearly crosses the line. Its brazen application since its issuance a couple of days ago has set off a series of blatant violations of basic civil rights and liberties, as found in our Bill of Rights.

PROCLAMATION NO. 1017 AND GENERAL ORDER NO. 5 CANNOT AND DOES NOT SUSPEND THE FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION AND LAWS

27.

As was argued, it is evident under the 1987 Constitution that in the

exercise of the Presidents calling out powers, the peoples fundamental rights are not

25

diminished nor suspended.

As explained by the Court in the case of Sanlakas v.

Reyes (G.R. No. 159085. February 3, 2004):

(T)he mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. The same ruling applies likewise to Proclamation No. 1017, where President Arroyo, in exercising her calling out powers, declared a state of national emergency. As

previously said, being the most benign of all the Commander-in-Chief powers, it should not transgress upon basic civil rights and liberties of the people.

28.

With the implementation of the proclamation, the following fundamental

rights have been violated:

a) Right of the people against warrantless arrests. It has been held by the Honorable Court that in quelling or suppressing rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant (Sanlakas vs. Reyes, supra).

Therefore, absent the instances mentioned in the Rules of Court to validly effect a warrantless arrest, the rights of the people under Section 2, Article III of the Constitution are not affected despite the issuance of Proclamation No. 1017 and General Order No. 5 and the declaration of a state of national emergency. The warrantless arrests of Prof. David, Atty. Guevarra, Rep. Beltran and (Ret.) Col. Montano are glaring examples of transgressions of the fundamental right against warrantless arrests.

26

b) Right of the people to peaceably assemble and petition the government for redress of grievances. The issuance of Proclamation No. 1017 and General Order No. 5 must not curtail the right of the people to peaceably assemble and petition the government for redress of their grievances as guaranteed by the Bill of rights. The revocation of permits to rally last February 24, 2006 clearly curtails this right.

First, under Batas Pambansa Bilang 880, the power to regulate assemblies and rallies is lodged with the Local Government Units (LGUs). The LGUs 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.

The President does not have any power to regulate rallies. In revoking all permits, the President exercised control over the LGUs, which is not allowed under the Constitution. In the case of Drilon vs. Lim (235 SCRA 135), it was ruled that the President only exercises general supervision but not control over LGUs. In substituting her judgment to that of the LGUs in revoking permits, she is deemed to have exercised unwarranted control.

Second, the revocation of the permit covered all rallies in all areas, which roughshodly tramples on a particular provision of B.P. 880, which states that no permits need be secured if one were to peaceably assemble in freedom parks. Does this mean that such blanket prohibition, emanating from the

implementation of Proclamation No. 1017, a mere presidential proclamation, supersedes B.P. 880, which is a law enforcing the basic right to peaceably assemble and to petition the government for redress of grievances? That seems to be the ultimate effect of such implementation.

27

c) The Proclamation has the chilling effect of infringing on the freedom of the press. Proclamation No. 1017, together with contemporaneous circumstances, have the effect of infringing upon the freedom of the press which is clearly safeguarded under the 1987 Constitution. Proclamation 1017 and General Order No. 5 caused a chilling effect to media practitioners in their coverage of the events unfolding during this period. Paragraph 3 of the whereas clauses of the Proclamation states that: the claims of these elements have been recklessly magnified by certain segments of the national media. Paragraph 3 read together with Paragraph 9 of the Proclamation referring to the powers of the President under Article XII Section 17 implies a threat to all broadcast media that government can at any time takeover their establishments if they decide to do so.

This threat was in fact reiterated by the National Telecommunications Commission. On February 24, 2005, the National Telecommunications

Commission called a meeting of all station managers and informed them that if they air anything that they deem as contrary to Proclamation 1017, the NTC can take over their operations. This threat was also backed by the presence of the police watching over the premises of big network stations such as GMA 7 and ABS-CBN. This threat in fact was materialized in the case of the Daily Tribune which was raided in the wee hours of the morning of February 25.

The President cannot invoke Article XII, Section 17 without any legal authority provided by Congress because the power granted in Article XII is a power that is given to the State and not to the President alone. It is clear therefore that the inclusion of Article XII in Proclamation 1017 is meant to create a veiled threat to media practitioners and to create an atmosphere of fear.

28

d) The prior restraint on Daily Tribune curtailed the peoples right to information.

Corollary to the freedom of the press is the public right to information on matters of public interest. As the Honorable Court held in Chavez v.

Presidential Commission on Good Government, 299 SCRA 744 (1998), the

essence of democracy lies in the free flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, a free press directly contributes to the free flow of information and thought and prior restrain on the press constitutes curtailment of the peoples right to information.

PROCLAMATION 1017 DOES NOT GRANT ANY EXTRA POWERS TO THE PRESIDENT
29. The mere declaration of a state of national emergency in itself does not

give any extra powers to the President, such as that of making unwarranted arrests of suspected destabilizers or setting so-called standards or guidelines for the press to follow in publishing their articles. In the Sanlakas case, the Court said that a

declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such state exists and that the armed forces may be called to prevent or suppress it. It further held that the declaration may wreak emotional effects upon Being a mere

the perceived enemies of the State, or even on the entire nation.

superfluity, as was in the case of Proclamation 427 (s. 2004) in Sanlakas, the issuance of Proclamation No. 1017 is devoid of any legal significance.

30.

As the Honorable Court explained in Sanlakas:

Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution:

29

Sec. 23. (1) . (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

31.

In the present case, the Executive has vested upon itself, and has

exercised, emergency powers, by the mere proclamation of the state of emergency. This is clearly a usurpation of the powers of the Legislative under Article VI, Section 3 of the 1987 Constitution.

THE PRESIDENT COMMITTED GRAVE ABUSE OF DISCRETION IN THE EXERCISE OF THE TAKE-OVER POWERS UNDER SECTION 17, ARTICLE XII OF THE CONSTITUTION AND IN THE APPLICATION OF SUCH POWER.

32.

Presidential Proclamation No. 1017 (Proclamation 1017) states, in part

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 Presidentwhenever it becomes necessarymay call out (the) armed forced to prevent or suppressrebellion..., 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 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 13 of the Constitution do hereby declare a State of National Emergency. (Emphasis supplied)

33.

A proclamation is defined as embodying the acts of the President in 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. There are two (2) readily discernible but distinct acts of the President covered by Presidential Proclamation No. 1017. These are: (a) the act of the President in calling

30

out the Armed Forces of the Philippines and (b) the act of declaring a state of national emergency.

34.

The act of calling out the Armed Forces under Proclamation 1017 is for

the apparent purpose of commanding the same 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 laws and to all decrees, orders and regulation promulgated by the President personally or upon her direction. The use

of the conjunctive and following the declaration of the use of the Commander-in-Chief power of calling out the armed forces, indicates that, in addition to the exercise of that prerogative, the President declared a state of national emergency upon the apparent legal predicate provided by Section 17, Article XII of the Constitution.

35.

There are at least four constructions which may be given this second part

of Proclamation 1017 in relation to the specific reference to Section 17 (2), Article XII of the Constitution, which states in full: 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. Unfortunately for the respondents, none of these interpretations may serve to save Proclamation 1017 from a declaration of nullity and unconstitutionality.

36.

First, in referring to Section 17, Article XII, Proclamation 1017 may be

understood as predicating entirely the declaration of a state of national emergency upon Section 17, Article XII as the legal source and justification of the exercise of the power.

37.

Second, when construed in relation to the pertinent recitals under the

whereas clauses, the use of Section 17, Article XII, which relates to public utilities and private business imbued with public interest, in support of the declaration of the state of

31

national emergency under Proclamation No. 1017 appears to be directed at justifiying actions against certain segments of the national media24 whose actions are adversely affecting the national economy,25 the consequences, ramifications and collateral effects of which constitute a clear and present danger to the safety and integrity of the Philippine State and of the Filipino people.26

38.

Third,

when

construed

in

the

light

of

the

subsequent

and

contemporaneous understanding given by the Government officials tasked to implement the same, the reference to Section 17, Article XII in relation to the declaration of the existence of a national emergency is a direct invocation and implementation of the said constitutional provision by the Chief Executive and a positive assertion on the part of the President that she possesses the emergency power under that constitutional provision to take over or direct the operation of any privately owned public utility or business affected with public interest.

39.

Fourth, assuming, without conceding, that a declaration of the existence

of a national emergency, when understood as a mere declaration of a factual circumstance is within the power of the President, such a declaration does not expand the powers and prerogatives of the President beyond what is provided in the Constitution and the laws. Nor does it permit her to exercise extraordinary or emergency powers, which are delegable only by the Legislature as discussed earlier. The reference to Section 17, Article XII must be understood as mere surplusage.

40.

Petitioner respectfully submits the humble view that none of the

foregoing saves Proclamation 1017 from constitutionality.

24 25 26

Proclamation 1017, Third Whereas Clause. Ibid., Fifth Whereas Clause. Proclamation 1017, Eighth Whereas Clause.

32

THE PRESIDENT HAS NO CONSTITUTIONAL OR LEGAL AUTHORITY TO DECLARE A STATE OF NATIONAL EMERGENCY AS DEFINED UNDER SE. 17(2), ART. XII

41.

Petitioner respectfully submits that Article XII, Section 17 (2) does not

provide ground for the Chief Executive to declare a state of national emergency. As will be discussed in greater detail under the immediately succeeding heading, a finding that a national emergency exists to justify the temporary take over or control over utilities and businesses imbued with public interest rests in Congress, as the implementing authority under that constitutional provision.

42.

Where the President independently makes a factual determination that a

state of national emergency exists and makes a purely executive declaration of the existence of the fact, such may or may not be considered by Legislature as sufficient for it to act under Article XII, Section 17. To be sure, a broad declaration of the existence of a national state of emergency does not immediately and necessarily implicate utilities and businesses imbued with public interest. The discussion of the framers of the 1987 Constitution indicate that the cited provision contemplates specific forms or types of emergency situations as coming within its purview. In the case of Agan, Jr. vs.

PIATCO (GR No. 155001, May 5, 2003), the Supreme Court elucidated on what the
term national emergency as used in Article XII, Section 17 refers to, as follows:

The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional Commission, the term national emergency was defined to include threat from external aggression, calamities or national disasters, but not strikes unless it is of such proportion that would paralyze government service. The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last. (Emphasis supplied)

33

ARTICLE XII, SECTION 17 RESERVES TO THE STATE BY VIRTUE OF ITS INHERENT POLICE POWER EXERCISED THROUGH THE CONGRESS, NOT THE PRESIDENT, THE POWER TO TEMPORARILY TAKE OVER OR CONTROL THE OPERATION OF A PUBLIC UTILITY OR PRIVATE BUSINESS IMBUED WITH PUBLIC INTEREST. 43. Article XII, Section 17 of the Constitution does not clothe the President,

personally or under her direction, with authority to take over or direct the operation of any privately owned public utility or business affected with public interest by sheer executive fiat, or through the mere issuance of a presidential proclamation. Yet the subsequent and contemporaneous construction27 given to, as well as the implementation of Proclamation 1017 indicates, without doubt, that it was issued also by way of an executive operationalization of Article XII, Section 17.

44.

It has further been widely reported that the strong presence of the

police shall be maintained in the editorial offices of the Daily Tribune, while extraordinary conditions exist in the country. While Presidential Chief of Staff Michael Defensor was quick to deny a takeover, he was cited as having (a) clarified that the takeover was a possibility under a state of emergency and (b) having issued a stern warning that the publication would be permitted to operate, but under tight watch by police operatives. No interference would purportedly be exercised with respect to

stories to be produced; however, it has been confirmed that policemen have been (and would remain) stationed inside the editorial and business offices of the Daily Tribune. Hindi namin pinapakialaman ang publication pero gusto naming ipakita iyong strong presence naming na huwag kayong gagawa ng kahit anuman na makakatulong sa rebelde, the Chief of Staff was quoted as saying, to which he added, Pinapabayaan na ang Tribune pero kailangan bantayan because we are in an abnormal situation.28

See Araneta v. Dinglasan for example of contemporaneous construction. Police Presence in Tribune a reminder to media, says Palace, by Lira Dalangin-Fernandez, INQ7, February 25, 2006, <http://news.inq7.net/breaking/index.php?index=1&story_id=67483>, last visited February 25, 2006 (9:00 p.m.). See related article, 28 No Plan to Muzzle Press-Palace, by Kristine L. Alave, BusinessWorld, February 25, 2006, <www.bworldonline.com/BW022506/content.php?id=134, last visited February 25, 2006 (updated 7:30 p.m.).
28

27

34

45.

Police Chief Arturo C. Lomibao was reported to have warned media to

refrain from publishing stories critical of the administration that could lead to political instability. Invoking the state of emergency declaration, Mr. Lomibao said authorities, including his own command, could review the content of media outlets and that they would enforce General Order No. 5 on media entities that violate the standards in the order. We have temporarily taken over the Daily Tribune and we will recommend that the government will direct operations of the Daily Tribune. At least, they will review whatever publications that the Daily Tribune newspaper is publishing. We are not closing it we are just going to review [or] recommend to government a review of all the articles that will be published.29

46.

Article XII, Section 17 of the 1987 Constitution does not permit the

President, whether in the exercise of her power as Chief Executive or as Commander-inChief of the Armed Forces of the Philippines, to take over or direct the operation of any privately owned public utility or business affected with public interest by sheer executive fiat, or through the mere issuance of a presidential proclamation.

47.

The mentioned proviso functions primarily as recognition of the right and

prerogative of the State, in times of emergency and when the public interest so requires it, to take over or direct the operation of any privately owned public utility or business affected with public interest. It is thus primarily an affirmation of police power, which is an inherent power of the State. In the case of Agan, Jr. vs. PIATCO,30 the Supreme

Court, in interpreting Article XII, Section 17, stated:

The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police

29

Police to Monitor Media Content, by Kristine L. Alave, BusinessWorld, February 25, 2006, <www.bworldonline.com/BW022506/content.php?id=134, last visited February 25, 2006 (updated 7:30 p.m.). Agan, Jr. vs Piatco, May 5, 2003

30

35

power, to temporarily take over the operation of any business affected with public interest. Article XII, section 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the State in effecting the temporary takeover is exercising its police power. (Emphasis supplied)31

48.

It is basic that police power is an inherent attribute of sovereignty, which

resides, under the constitutional scheme of the Philippines, in the people. It has been defined as the power vested by the Constitution in the Legislature to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as the legislature may judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope vast and pervasive, reaching and justifying measures for public health, public safety, public morals and the general welfare.

49.

It bears stressing that police power is lodged primarily in Congress; it

cannot be exercised by any group or body of individuals not possessing legislative power, including the President. As early as the case of Rubi v. Provincial Board,32 the Supreme Court explored the scope and exercise of the States police power. Writing for the Honorable Court, Justice Malcolm said: The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental
Agan v. PIATCO, supra., citing Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No. 75885, May 27, 1987 citing Freund, The Police Power (Chicago, 1904).
31

32

39 Phil 660 (1919)

36

principles which lie at the foundation of all republican forms of government. (Citations omitted and emphasis supplied)

50.

The legislature, however, may delegate this power to the president and

administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents exercise only such legislative powers as are conferred on them by the national lawmaking body.

51. When thus construed within this context, it is clear that the power to take over or direct the operation of public utilities or business affected by public interest under Article XII, Section 17 may be exercised in the protective and preservative solely by Congress in behalf of the State; the President may act only to execute and implement any law passed pursuant thereto but not in its absence. The very vehicle, a mere

presidential proclamation, through which the President assumed to wield this awesome and threatening power belies her utter lack of authority.

52.

This interpretation of Article XII, Section 17 was confirmed by the

Honorable Court in its decision on the Motion for Reconsideration in Agan, Jr. vs.

PIATCO, (G.R. No. 155001. January 21, 2004) were the Court held:

Temporary takeover of business affected with public interest in times of national emergency

Section 17, Article XII of the 1987 Constitution grants the State in times of national emergency the right to temporarily take over the operation of any business affected with public interest. This right is an exercise of police power which is one of the inherent powers of the State. Police power has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare."33[54] It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the common good. Its definition in elastic terms underscores its all33[54]

Philippine Association of Service Providers Co., Inc. v. Franklin M. Drilon, et al., G.R. No. L81958, June 30, 1988 citing Edu v. Ericta, G.R. No. L-32096, October 24, 1970, 35 SCRA 481, 487.

37

encompassing and comprehensive embrace.34[55] It is and still is the most essential, insistent, and illimitable35[56] of the States powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for just compensation for its paramount consideration is public welfare.36[57] It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State can not be negated by any party nor should its exercise be a source of obligation for the State. (Emphasis supplied)

53. that:

The Revised Administrative Code, in Book III, Title 1, Chapter 2, 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. Executive Orders are acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers. General or Special Orders are acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines. In no way can

Proclamations and General Orders be considered as the States exercise of police powers under Article XII, Section 17. It must be through legislative action by the Congress

that such police powers can be exercised.

34[55]

Id. Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No. 75885; May 27, 1987 citing Freund, The Police Power (Chicago, 1904), cited by Cruz, I.A., Constitutional Law; 4th ed., p. 42, Smith, Bell & Co. v. Natividad, 40 Phil. 136, U.S. v. Toribio, 15 Phil. 85, Churchill and Tait v. Rafferty, 32 Phil. 580, and Rubi v. Provincial Board of Mindoro, 39 Phil. 660; Florentian A. Lozano v. Antonio M. Martinez, G.R. No. L-63419, December 18, 1986; Alejandro Melchor, Jr. v. Jose L. Moya, et al., G.R. No. L-35256, March 17, 1983; 206 Phil 1; Ichong vs. Hernandez, L-7995, May 31, 1957. Jose D. Sangalang, et al., v. Intermediate Appellate Court, et al., G.R. Nos. 71169, 74376, 76394, 78182, 82281 and 60727, August 25, 1989.

35[56]

36[57]

38

54.

That this is the Constitutions designed manner by which Article XII,

Section 17 may be made operative is further buttressed when this provision is construed in relation with Article VI, Section 23 (2), which states 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.

55.

It is helpful for the succeeding discussion to set these related provisions

side by side, thus:

Article VI, Section 23 (2) Sec. 23. (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.

Article XII, Section 17 (2) Section 17. (2.) 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.

Taking these two provisions which deal specifically with a national emergency situation in the light of jurisprudence related thereto, the rule that has been recognized in this jurisdiction is that even in times of national emergency, indeed during time of war, the plenary legislative power, which includes the exercise of the police power of the State, is preserved in the Legislature. The Congress, unless otherwise unable to do so, continues with its authority to enact laws and act pursuant to the inherent police power of the State.

39

55.

Article XII, Section 12, which as the Supreme Court has characterized as

based upon police power, is an explicit recognition that part of what Congress may do during a state emergency is to authorize the take over of public utilities and businesses impressed with public interest. It is only where Congress, by law, authorizes the

President to exercise powers necessary and proper to carry out a declared national policy that the latter may be deemed to have been enabled to undertake acts which are not purely executive in nature.

56.

In the case of Araneta v. Dinglasan (84 Phil 368), the Honorable Court

had occasion to emphasize that plenary legislative power, through which police power is exercised, remains in Congress even in times of crisis. In the light of the conditions surrounding the approval of the Emergency Powers Act, we are of the opinion that the "state of total emergency as a result of war" envisaged in the preamble referred to the impending invasion and occupation of the Philippines by the enemy and the consequent total disorganization of the Government, principally the impossibility for the National Assembly to act. The state of affairs was one which called for immediate action and with which the National Assembly would not be able to cope. The war itself and its attendant chaos and calamities could not have necessitated the delegation had the National Assembly been in a position to operate. 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 the 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." These observations, though beyond the issue as formulated in this decision, may, we trust, also serve to answer the vehement plea that for the good of the Nation, the President should retain his extraordinary

40

powers as long as turmoil and other ills directly or indirectly traceable to the late war harass the Philippines. (Emphasis supplied)

57.

To be sure, the related power of eminent domain, which is recognized as

inherent in the State, is exercised also primarily by the legislature, whether it is utilized as such or as an implement of police power. An example of its delegation may be found in the Revised Administrative Code. Revised Penal Code further provides: Section 12. Power of Eminent Domain. The President shall determine when it is necessary or advantageous to exercise the power of eminent domain in behalf of the National Government, and direct the Solicitor General, whenever he deems the action advisable, to institute the expropriation proceedings in the proper court. Chapter 4, of the same Book and Title of the

58.

Yet another reason to preserve in the Legislature the exercise of the

reserved police power under Article XII, Section 17 may be found in the rationale which supports the provision as adopted in the 1987 Constitution. In this regard, it is helpful to recall what this Honorable Court set out in Civil Liberties Union v. Executive Secretary the Supreme Court held in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.

59.

The 1987 Constitution is a document which is recognized to be anti-

authoritarianism and contains every indication that presidential power has been limited and considerably narrowed. To give the construction insisted upon in Proclamation 1017, that Article XII, Section 17 authorizes the President to act in the absence of legislative enactment, is to betray the principles of the 1987 Constitution.

41

60.

Not even the deadlocks in and slowness of democratic processes afford

the President acceptable basis for her attempt to usurp legislative prerogative recognized and provided in Article XII, Section 17. Chief Justice Paras in another emergency powers case, Rodriguez v, Gella, said: deadlocks in and slowness of democratic processes must be preferred to concentration of powers in any one man or group of menemergency itself cannot create power. (Emphasis supplied)37

61.

There is yet another impediment which bars the President from taking

over or directing the operation of any public utility or business infused with public interest. Because Article XII, Section 17 requires legislative action to be implemented, it is a provision which may be characterized as not self-executing and, as such, cannot be a source of positive authority for the President to effect a take over of utilities or businesses impressed with public interest. In the instances when this Honorable Court ruled that certain Constitutional provisions are self-executing, those provisions became the source of rights in favor of individuals. Whether in Oposa v. Factoran38 or in Manila

Prince Hotel v. GSIS,39 there was a clear duty on the part of the State to act and an
established right on the part of individuals or persons, sufficiently forming basis for a cause of action in the event of a breach of the Constitutional provision. To be sure, in the case of Oposa v. Factoran, the eminent jurist Justice Florentino Feliciano, while concurring with the majority, cautioned against an immediate determination of the selfexecutory nature of constitutional provisions unless the provision is cast in language of lower generality [than Article II (15) of the Constitution].

PROCLAMATION NO. 1017 IS UNCONSTITUTIONAL ON ITS FACE FOR BEING PREDICATED ON A MANGLED VERSION OF ARTICLE II, SECTION 4, AND ON AN ERRONEOUS APPLICATION OF ARTICLE XII, SECTION 17

62.

Proclamation No. 1017, in its seventh Whereas clause, specifically

mentions Article II, Section 4 as one of the constitutional basis for the declaration of a
37

92 Phil 603 (1953)

42

state of emergency.

As readily seen from the clause, however, what was cited by

Proclamation No. 1017 was the 1973 Constitution provision saying that the primary duty of the government is the defense and preservation of the democratic institutions and the State. Article II, Section 4 of the 1987 Constitution provides that the prime duty

of the government is to serve and protect the people.

63.

Nor can the President, as Chief of the Executive Department, usurp the

power under Article XII, Section 17 by purporting to act as agent of the State under the same provision. It is not by accident that the right is reserved to the State and not

granted to the President. Indeed, the reservation is made in favor of the State under the
article on national patrimony and economy, whereas the powers and prerogatives of the President are detailed primarily under Article VII on the Executive Department. Thus understood, in addressing the State in Article XII, Section 17, the Constitution speaks to both the Legislative and Executive Branches of the National Government, consistent with their respective powers and duties under the law to make and to execute law. It may not be amiss to cite here what this Honorable Court stated in Araneta v. Dinglasan,

supra
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties.

64.

At best, the declaration of a state of national emergency cannot be

predicated upon Article XII, Section 17, nor be the source of any power. Any reference to Article XII, Section 17 should thus be deemed mere surplusage, consistent with

Sanlakas vs. Reyes

In calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Perhaps the declaration may wreak emotional
38 39

GR No. 101083, July 30, 1993. GR No. 122156, February 3, 1997.

43

effects upon the perceived enemies of the State, even on the entire nation. But this Courts mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written.

PROCLAMATION 1017 IS UNCONSTITUTIONAL IN ITS APPLICATION BECAUSE IT CURTAILS FUNDAMENTAL LIBERTIES GUARANTEED BY THE CONSTITUTION 65. Even assuming, for the sake of argument, that Proclamation No. 1017

and its implementing General Order No. 5 are not unconstitutional on its face, they are unconstitutional in application. As ruled by this Honorable Court in Central Bank

Employees Association, Inc. Vs. Bangko Sentral Ng Pilipinas And The Executive Secretary, (G.R. No. 148208. December 15, 2004):

Echoes of these rulings resonate in our case law, viz:

[C]ourts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. A statute nondiscriminatory on its face may be grossly discriminatory in its operation. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. (emphasis supplied, citations omitted) [W]e see no difference between a law which denies equal protection and a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition.. In other words, statutes may be adjudged unconstitutional because of their effect in operation. If a law has the effect of denying the equal protection of the law it is unconstitutional. . (emphasis supplied, citations omitted

66.

Doubtless, Proclamation No. 1017 and General Order No. 5 should be

declared unconstitutional and null and void because of their effect in operation, as explained above, especially on the curtailment of fundamental civil and political rights.

44

PROCLAMATION NO. 1017 HAS NOT BEEN ADEQUATELY DISCLOSED THROUGH PUBLICATION

67.

The Presidential Proclamation No. 1017 must likewise fail due to the lack

of an essential requisite. The requirement of publication of laws has been invariably upheld by this Honorable Court. Publication and the fifteen-day requirement for

effectivity are intended to apprise the people with the statutes of the land. Failure to comply with said requisites should be deemed as a direct affront to the basis tenets of procedural due process.

68.

Article 2 of the Civil Code pertinently provides that, Laws shall take

effect fifteen (15) days following the completion of their publication in the Official Gazette, unless it is otherwise provided. Further amplifying the rule on publication,

E.O. 200, promulgated on 18 June 1987, states that: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

69.

Proclamation No. 1017 has miserably failed these tests. Signed by the

President Gloria Macapagal - Arroyo only on 24 February 2006, the Order could not have taken effect immediately without the requisite publication.

70.

As explained above, however, the Executive has started and sustained

the implementation of the questioned Presidential Proclamation. The Philippine National Police together with the Armed Forces effected warrantless arrests and dispersions of peaceful assemblies in alleged defiance of the Presidents directive. Reliance on the said proclamation is grossly misplaced considering the want of publication. Hence, there should have been no sanctions imposed upon concerned citizens.

45

71.

In the landmark case of Tanada vs. Tuvera, the Supreme Court said that:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. The court likewise, in explaining the phrase unless otherwise provided found in Proclamation No. 1017, said that: After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion, and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided." It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.40

40

Tanada vs. Tuvera, ibid.

46

72.

The law and jurisprudence are clear and succinct - in the light of the

failure to publish Proclamation No. 1017 either in the Official Gazette or in a newspaper of general circulation, it is of no force and effect.

GROUNDS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER As explained above, the respondents and other persons acting on the basis of the unconstitutional Proclamation No. 1017 and General Order No. 5 continuously commit blatant violations of the Constitution to the extreme prejudice of the petitioner and those that they represent. Pending action by this Honorable Court on the Petition,

the petitioner is entitled to have the respondents and all persons acting for or in their behalf enjoined from continuing with the implementation of the unconstitutional Proclamation No. 1017 and General Order No. 5.

Unless the implementation of the unconstitutional Proclamation No. 1017 and General Order No. 5 is enjoined, the petitioner and the organizations and individuals it represents stand to suffer irreparable injury that cannot be accurately estimated. The

continuing destruction of the foundations of our governance system must be immediately stopped.

PRAYER WHEREFORE, the petitioner respectfully prays that the Honorable Court issue a decision:

1)

declaring null and void, for being unconstitutional, Proclamation No.

1017, entitled, PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY and General Order No. 5 entitled, DIRECTING THE ARMED FORCES OF THE PHILIPPINES IN THE FACE OF NATIONAL EMERGENCY, TO MAINTAIN PUBLIC PEACE, ORDER AND SAFETY AND TO PREVENT AND SUPPRESS LAWLESS VIOLENCE;

47

2)

commanding the respondents and all persons acting on the basis of

Proclamation No. 1017 and General Order No. 5 to cease from implementing the said Proclamation and Order. 3) pending the resolution of this case, issuing a Temporary Restraining

Order and/or Writ of Preliminary Injunction enjoining the respondents from implementing Proclamation No. 1017 and General Order No. 5, and upon the final resolution of this case, to make the injunction permanent. The petitioner prays for other just and equitable remedies. Quezon City for Manila, 26 February 2006.

MELIZEL F. ASUNCION PTR No. 7355587; 02-03-06; Quezon City IBP No. 674544; 02-03-06; Quezon City Roll No. 47469 RAOUL P. BARBARONA PTR No. 6491554; 01-04-06; Tagbilaran City IBP No. 622099; 12-31-05; Bohol Roll No. 39660 RAISSA H. JAJURIE PTR No. 3517317; 01-23-06; Davao City IBP No. 669831; 01-23-06; Davao City Roll No. 40219 CARLOS P. MEDINA, JR. PTR No. 4194553; 01-10-06; Makati City IBP Lifetime Membership No. 00331; Makati City Roll No. 33331

MAGISTRADO A. MENDOZA, JR. PTR No. 7378124; 02-07-06; Quezon City IBP No. 675379; 02-06-06; Camarines Sur Roll No. 40029

MARLON J. MANUEL PTR No. 7250948; 01-17-06; Quezon City IBP No. 663544; 12-21-05; Bulacan Roll No. 40046

48

Counsel for Petitioner ALTERNATIVE LAW GROUPS, INC. (ALG) Room 215, Institute of Social Order Social Development Complex, Ateneo de Manila University Loyola Heights Quezon City

MANIFESTATION

Pursuant to Rule 13, section 11 of the Rules of Court, petitioner respectfully manifests that the respondents were served their respective copies of this petition for certiorari by means of registered mail because of the lack of time and the considerable distance between the parties respective offices.

MARLON J. MANUEL

COPY FURNISHED: HON. EDUARDO R. ERMITA EXECUTIVE SECRETARY Malacaang, Manila GEN. GENEROSO SENGA Office of the Chief of Staff Armed Forces of the Philippines Camp Aguinaldo Quezon City GEN. ARTURO LOMIBAO Office of the Chief Philippine National Police Camp Crame Quezon City THE SOLICITOR GENERAL 134 Amorsolo Street Legaspi Village Makati City

49

REPUBLIC OF THE PHILIPPINES QUEZON CITY

) )

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, ARLENE J. BAG-AO, of legal age, Filipino, and holding office at Room 215, Institute of Social Order, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, after having been sworn in accordance with law, hereby state: 1. I am the Council Chairperson of petitioner, Alternative Law Groups, Inc. (ALG), with principal office located at the above-mentioned address. 2. As Council Chairperson, I have been authorized by the petitioner's Board of Trustees to cause, as I have caused, the preparation and filing of the foregoing Petition. 3. I have read the contents of the foregoing Petition and I attest that the contents of the same are true and correct of my own knowledge and on the basis of authentic documents in my possession. 4. I attest that petitioner has not commenced any other action or proceeding, involving the same issues subject of this present Petition, in the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency. 5. To the best of my knowledge, no such action or proceeding is, or remains, pending in the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency. 6. If I should hereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency, I undertake to promptly inform this Honorable Court of that fact within five (5) days from such notice.

ARLENE J. BAG-AO Affiant SUBSCRIBED AND SWORN TO before me this 27th day of February, 2006 in Quezon City, affiant exhibiting to me her Community Tax Certificate No. 22434418 issued on 14 April 2005 in Cagayan de Oro City.

Doc. No. ________; Page No.________; Book No.________; Series of 2005.

50

REPUBLIC OF THE PHILIPPINES QUEZON CITY

) )

SECRETARYS CERTIFICATE
I, GLENDA T. LITONG, Filipino, of legal age, and with office address at Room 215, Institute of Social Order, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, after having been duly sworn in accordance with law, hereby certify: 1. I am the duly elected and incumbent Corporate Secretary of Alternative Law Groups, Inc. (ALG) a corporation duly organized and existing under the laws of the Philippines, with principal office at Room 215, Institute of Social Order, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City. 2. At the special meeting of the Board of Directors of the Corporation held on 24 February 2006, in the principal office of the Corporation, at which meeting a quorum was present and acting throughout, the following resolutions were unanimously approved and adopted: RESOLVED, that the Corporation appoints its Council Chairperson, ARLENE J. BAG-AO, to be its true and lawful attorney-in-fact to cause the preparation and filing of a PETITION FOR CERTIORARI AND PROHIBITION before the Supreme Court of the Philippines to declare unconstitutional Proclamation No. 1017 and General Order No. 5, prohibit its enforcement and to represent the Corporation in all stages of the proceedings therein. RESOLVED FURTHER, that said ARLENE J. BAG-AO be authorized and empowered to sign and deliver any and all verification, certification, or agreement, or file any and all pleadings as are relevant to accomplish the purpose of her appointment. FINALLY RESOLVED, that this designation shall remain valid and binding until modified, altered or revoked by a subsequent Board Resolution. 3. The foregoing is in accordance with the records of the Corporation.

4. The foregoing resolutions have not been modified, altered or repealed and are still in full force and effect. IN WITNESS WHEREOF, I have hereunto affixed my signature this 27th day of February, 2006 in Quezon City. GLENDA T. LITONG Corporate Secretary SUBSCRIBED AND SWORN to before me on this 27th day of February in Quezon City, affiant exhibiting to me her Community Tax Certificate No. 02147941 issued on 22 April 2005 in Manila. Doc. No. _____; Page No. _____; Book No. _____; Series of 2006.

51

REPUBLIC OF THE PHILIPPINES) QUEZON CITY ) S.S. VERIFIED STATEMENT OF MATERIAL DATES I, MARLON J. MANUEL, of legal age, married, with business address at Room 215, Institute of Social Order, Ateneo de Manila University, Loyola Heights, Quezon City, after having been sworn in accordance with law, hereby depose and state that: 1. I am one of the counsel for the petitioner; 2. On 24 February 2006, President Gloria Macapagal Arroyo issued Proclamation No. 1017, entitled, PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY. On the same day, President Gloria Macapagal Arroyo issued General Order No. 5 (Implementing Proclamation No. 1017). 3. As a result of such approval, the respondent has started the implementation of, and continue to implement, the said Proclamation and General Order with the unconstitutional provisions assailed in this Petition. 4. The respondent continuously commits acts constituting grave abuse of discretion amounting to lack or excess of jurisdiction in violation of the rights of the petitioner and other taxpayers and citizens. 5. This Petition is timely filed to question the validity of the said Proclamation and General Order on constitutional grounds. 6. This Petition requires urgent resolution as the issues involved pertain to fundamental freedoms guaranteed under the Constitution and the very foundations of our system of government. 7. I execute this affidavit to attest to the truth of the foregoing statements IN WITNESS WHEREOF, I have hereunto affixed my hand, this 27th day of February 2006 at Quezon City.

MARLON J. MANUEL SUBSCRIBED AND SWORN to before me this 27th day of February 2006, affiant exhibiting to me his Community Tax Certificate No. 12666487 issued on 19 January 2006 in Quezon City. . Book No.____; Page No._____; Doc. No.______; Series of 2006.

52

REPUBLIC OF THE PHILIPPINES) QUEZON CITY ) S.S. AFFIDAVIT OF SERVICE I, WILFREDO VILLONES, Filipino, of legal age, single, with business address at Sentro ng Alternatibong Lingap Panligal (SALIGAN), G/F Hoffner Building, Ateneo de Manila University, Loyola Heights, Quezon City, Metro Manila, after being sworn in accordance with law, hereby depose and state that:

1. I am employed as a messenger at Sentro ng Alternatibong Lingap Panlegal

(SALIGAN), G/F Hoffner Building, Ateneo de Manila University, Loyola Heights, Quezon City, a member of the Alternative Law Groups, Inc., the petitioner herein; entitled Alternative Law Groups, Inc. (ALG) v. Hon. Eduardo Ermita et al;

2. I filed a petition for certiorari before the Honorable Supreme Court in the case 3. I served copies of the Petition to the following by means of registered mail:
HON. EDUARDO ERMITA EXECUTIVE SECRETARY Malacaang, Manila GEN. GENEROSO SENGA Office of the Chief of Staff Armed Forces of the Philippines Camp Aguinaldo Quezon City GEN. ARTURO LOMIBAO Office of the Chief Philippine National Police Camp Crame Quezon City THE SOLICITOR GENERAL 134 Amorsolo Street Legaspi Village Makati City

4. I execute this affidavit to attest to the truth of the foregoing.

IN WITNESS WHEREOF, I have hereunto affixed my hand, this 27th day of February 2006 at Quezon City.

SUBSCRIBED AND SWORN to before me this 27th day of February 2006, affiant exhibiting to me his Community Tax Certificate No. 15654170 issued on 6 January 2006 at Quezon City. Book No._____; Page No._____; Doc. No._____; Series of 2006.

53