David vs. Macapagal-Arroyo, G.R.

No. 171396, May 3 2006

Topic: Take-over Power

Campos, Josef Elvin U.
FACTS OF THE CASE
 On February 24, 2006, President Arroyo issued PP No. 1017 declaring a state of emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon
me by Section 18, Article 7 of the Philippine Constitution which states that: The President. . .
whenever it becomes necessary, . . . may call out the armed forces to prevent or suppress. .
.rebellion. . .,and in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience
to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.
FACTS OF THE CASE
On the same day, PGMA issued General Order No. 5 implementing PP1017, directing the
members 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.“

David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition
of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech
and of assembly. They alleged “direct injury” resulting from “illegal arrest” and “unlawful search”
committed by police operatives  pursuant to PP 1017. 

During the hearing, the Solicitor General argued that the issuance of PP 1017 and GO 5 have
factual basis, and contended that the intent of the Constitution is to give full discretionary powers to
the President in determining the necessity of calling out the armed forces. The petitioners did not
contend the facts stated by the Solicitor General.
ISSUE(S)

 Whether or not the PP 1017  and G.O. No. 5 is constitutional.


RULING
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. (Sec 18,
Art. VII, 1987 Constitution)
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. (Sec 17, Art. XII, 1987
Constitution)
First Provision: Calling Out Power.
 The only criterion for the exercise of the calling-out
power is that “whenever it becomes necessary,” the
President may call the armed forces “to prevent or
suppress lawless violence, invasion or rebellion.”
 President Arroyo’s declaration of a “state of
rebellion” was merely an act declaring a status or
condition of public moment or interest.
 In these cases, PP 1017 is more than that.  In
declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of
the Constitution, a provision calling on the AFP to
prevent or suppress lawless violence, invasion or
rebellion.  She also relied on Section 17, Article XII,
providing for the State’s extraordinary power to take
over privately-owned public utility and business
affected with public interest.  
 PP 1017 is not a declaration of Martial Law.  It is
merely an exercise of President Arroyo’s calling-
out power for the armed forces to assist her in
preventing or suppressing lawless violence.

RULING
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed. (Sec 17, Art. VII,
1987 Constitution)
The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and
a House of Representatives, except to the extent
reserved to the people by the provision on initiative
and referendum.. (Sec 1, Art. VI, 1987 Constitution)
Second Provision: The "Take Care" Power.
The second provision pertains to the
power of the President to ensure that the laws
be faithfully executed.  This is based on
Section 17, Article VII. SEC. 17.
This Court rules that the assailed PP
1017 is unconstitutional insofar as it grants
President Arroyo the authority to
promulgate “decrees.”  Legislative power is
peculiarly within the power of the Legislature
as provided in Section 1, Article VI.
To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can
justify President Arroyo’s exercise of legislative
power by issuing decrees. 

RULING
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. (Sec 18, Art. VII, 1987
Constitution)
 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. (Sec 23
(2), Art. VI, 1987 Constitution)
Third Provision: The Power to Take Over
  Distinction must be drawn between the
President’s authority to declare “a state of national
emergency” provided by Sec. 18 and to exercise
emergency powers.  
 Generally, Congress is the repository of
emergency powers.  This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate
such powers to the President.  A body cannot
delegate a power not reposed upon it.  Except during
grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:
1. There must be a war or other emergency.
2. The delegation must be for a limited period only. 
3. The delegation must be subject to such
restrictions as the Congress may prescribe.
4. The emergency powers must be exercised to
carry out a national policy declared by Congress. 
RULING
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. (Sec 17, Art. XII, 1987
Constitution)
 Section 17, Article XII must be understood
as an aspect of the emergency powers to take
over of private business affected with public
interest is generally reposed upon Congress and
not the President.  
Whether or not the President may exercise
such power is dependent on whether Congress
may delegate it to him pursuant to a law
prescribing the reasonable terms thereof.
Following their interpretation of Section 17,
Article XII, invoked by President Arroyo in issuing
PP 1017, the Court ruled that such Proclamation
does not authorize her during the emergency to
temporarily take over or direct the operation of
any privately owned public utility or business
affected with public interest without authority from
Congress. 

RULING
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. (Sec 18,
Art. VII, 1987 Constitution)
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. (Sec 17, Art. XII, 1987
Constitution)
The President alone, without legislation,
has no power to take over privately-owned public
utility or business affected with public interest nor
determine when such exceptional circumstances
have ceased.  
Without legislation, the President has no
power to point out the types of businesses
affected with public interest that should be taken
over.
G.O.
No. 5 is constitutional since it
provides a standard by which the AFP and the
PNP should implement PP 1017, i.e. whatever is
“necessary and appropriate actions and
measures to suppress and prevent acts of
lawless violence.”
Considering that “acts of terrorism” have
not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is
declared unconstitutional.
END OF CASE