PIL Cases Ch10

G.R. No. 74135. May 28,1992.
*
M. H. WYLIE and CAPT. JAMES WILLIAMS, petitioners, vs. AURORA I. RARANG and THE
HONORABLE INTERMEDIATE APPELLATE COURT, respondents.
Constitutional Law; Actions; The rule that a state may not be sued without its c
onsent is one of the generally accepted principles of international law we adopt
ed as part of our law. "The rule that a state may not be sued without its consent,
now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of th
e generally accepted principles of international law that we have adopted as par
t of the law of our land under Article II, Section 2.
Same; Same; Same; The doctrine is also applicable to complaints filed against of
ficials of the state for acts allegedly performed by them in the discharge of th
eir duties. While the doctrine appears to prohibit only suits against the state wi
thout its consent, it is also applicable to complaints filed against officials o
f the state for acts allegedly
_______________
* THIRD DIVISION.
358
358
SUPREME COURT REPORTS ANNOTATED
M. H. Wylie vs. Rarang
performed by them in the discharge of their duties. The rule is that if the judg
ment against such officials will require the state itself to perform an affirmat
ive act to satisfy the same, such as the appropriation of the amount needed to p
ay the damages awarded against them, the suit must be regarded as against the st
ate itself although it has not been formally impleaded. (Garcia v. Chief of Staf
f, 16 SCRA 120) In such a situation, the state may move to dismiss the complaint
on the ground that it has been filed without its consent.
Same; Same; Same; Consent of the state to be sued may be manifested expressly or
impliedly. The consent of the state to be sued may be manifested expressly or imp
liedly. Express consent may be embodied in a general law or a special law. Conse
nt is implied when the state enters into a contract it itself commences litigati
on.
Same; Same; Same; Same; Not all contracts entered into by the government will op
erate as a waiver of its non-suability. The above rules are subject to qualificati
on. Express consent is effected only by the will of the legislature through the
medium of a duly enacted statute. (Republic v. Purisima, 78 SCRA 470) We have he
ld that not all contracts entered into by the government will operate as a waive
r of its non-suability; distinction must be made between its sovereign and propr
ietary acts. (United States of America v. Ruiz, 136 SCRA 487) As for the filing
of a complaint by the government, suability will result only where the governmen
t is claiming affirmative relief from the defendant.
Same; Civil Law; Damages. The general rule is that public officials can be held pe
rsonally accountable for acts claimed to have been performed in connection with
official duties where they have acted ultra vires or where there is showing of b
ad faith.
Same; Same; Same; Negligence; Fault or negligence covers not only acts not punis
hable by law but also acts criminal in character whether intentional or voluntar
y or negligent. "Fault" or "negligence" in this Article covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional or v
oluntary or negligent."
Same; Same; Same; Moral damages recoverable in case of libel, slander or any oth
er form of defamation. Moreover, Article 2219(7) of the Civil Code provides that m
oral damages may be recovered in case of libel, slander or any other form of def
amation. In effect, the offended
359
VOL. 209, MAY 28, 1992
359

party in these cases is given the right to receive from the guilty party moral d
amages for injury to his feelings and reputation in addition to punitive or exem
plary damages.
Same; Same; Same; Same; Imputation of theft contained in the POD dated February
3, 1978 is a defamation against the character and reputation of the private resp
ondent. Indeed the imputation of theft contained in the POD dated February 3, 1978
is a defamation against the character and reputation of the private respondent.
Petitioner Wylie himself admitted that the Office of the Provost Marshal explic
itly recommended the deletion of the name Auring if the article were published.
The petitioners, however, were negligent because under their direction they issu
ed the publication without deleting the name "Auring". Such act or omission is u
ltra vires and cannot be part of official duty. It was a tortious act which ridi
culed the private respondent.
PETITION for review of the decision and resolution of the then Intermediate Appe
llate Court.
The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:
The pivotal issue in this petition centers on the extent of the "immunity from s
uit" of the officials of a United States Naval Base inside Philippine territory.
In February, 1978, petitioner, M. H. Wylie was the assistant administrative offi
cer while petitioner Capt. James Williams was the commanding officer of the U. S
. Naval Base in Subic Bay, Olongapo City. Private respondent Aurora I. Rarang wa
s an employee in the Office of the Provost Marshal assigned as merchandise contr
ol guard.
M. H. Wylie, in his capacity as assistant administrative officer of the U.S. Nav
al Station supervised the publication of the "Plan of the Day" (POD) which was p
ublished daily by the US Naval Base station. The POD featured important announce
ments, necessary precautions, and general matters of interest to military person
nel. One of the regular features of the POD was the "action line inquiry." On Fe
bruary 3, 1978, the POD published, under the "NAVSTA ACTION LINE INQUIRY" the fo
llowing:
360
360
"Question: I have observed that Merchandise Control inspector/ inspectress are (
sic) consuming for their own benefit things they have confiscated from Base Pers
onnel. The observation is even more aggravated by consuming such confiscated ite
ms as cigarettes and food stuffs PUBLICLY. This is not to mention 'Auring' who i
s in herself, a disgrace to her division and to the Office of the Provost Marsha
l. In lieu of this observation, may I therefore, ask if the head of the Merchand
ise Control Division is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are prohibited from a
ppropriating confiscated items for their own consumption or use. Two locked cont
ainers are installed at the Main Gate area for deposit of confiscated items and
the OPM evidence custodian controls access to these containers.
Merchandise Control Guards are permitted to eat their meals at their worksite du
e to heavy workload. Complaints regarding merchandise control guards procedure o
r actions may be made directly at the Office of the Provost Marshal for immediat
e and necessary action. Specific dates and time along with details of suspected
violations would be most appreciated. Telephone 4-3430/4-3234 for further inform
ation or to report noted or suspected irregularities. Exhibits E & E-1." (Rollo,
pp. 11-12)
The private respondent was the only one who was named "Auring" in the Office of
the Provost Marshal. That the private respondent was the same "Auring" referred
to in the POD was conclusively proven when on February 7, 1978, petitioner M. H.
Wylie wrote her a letter of apology for the "inadvertent" publication. The priv
ate respondent then commenced an action for damages in the Court of First Instan
ce of Zambales (now Regional Trial Court) against M. H. Wylie, Capt. James Willi
ams and the U.S. Naval Base. She alleged that the article constituted false, inj
urious, and malicious defamation and libel tending to impeach her honesty, virtu
e and reputation exposing her to public hatred, contempt and ridicule; and that
the libel was published and circulated in the English language and read by almos
t all the U.S. Naval Base personnel. She prayed that she be awarded P300,000.00
as moral damages; exemplary damages which the court may find proper; and P50,000
.00 as attorney's fees.
In response to the complaint, the defendants filed a motion to dismiss anchored
on three grounds:
361
VOL. 209, MAY 28, 1992
361
M. H. Wylie us. Rarang
"1. Defendants M. H. Wylie and Capt. James Williams acted in the performance of
their official functions as officers of the United States Navy and are, therefor
e, immune from suit;
2. The United States Naval Base is an instrumentality of the US government which
cannot be sued without its consent; and
3. This Court has no jurisdiction over the subject matter as well as the parties
in this case." (Record on Appeal, pp. 133-134)
The motion was, however, denied.
In their answer, the defendants reiterated the lack of jurisdiction of the court
over the case.
In its decision, the trial court ruled that the acts of defendants M. H. Wylie a
nd Capt. James Williams were not official acts of the government of the United S
tates of America in the operation and control of the Base but personal and torti
ous acts which are exceptions to the general rule that a sovereign country canno
t be sued in the court of another country without its consent. In short, the tri
al court ruled that the acts and omissions of the two US officials were not impu
table against the US government but were done in the individual and personal cap
acities of the said officials. The trial court dismissed the suit against the US
Naval Base. The dispositive portion of the decision reads as follows:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against th
e defendants jointly and severally, as follows:
1) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff
Aurora Rarang the sum of one hundred thousand (P 100,000.00) pesos by way of mo
ral and exemplary damages;
2) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff
the sum of thirty thousand (P30,000.00) pesos by way of attorney's fees and exp
enses of litigation; and
3) To pay the costs of this suit.
Counterclaims are dismissed.
Likewise, the suit against the U. S. Naval Base is ordered dismissed." (Record o
n Appeal, p. 154)
On appeal, the petitioners reiterated their stance that they are immune from sui
t since the subject publication was made in their official capacities as officer
s of the U. S. Navy. They also maintained that they did not intentionally and ma
liciously
362
362
cause the questioned publication.
The private respondent, not satisfied with the amount of damages awarded to her,
also appealed the trial court's decision.
Acting on these appeals, the Intermediate Appellate Court, now Court of Appeals,
modified the trial court's decision, to wit:
"WHEREFORE, the judgment of the court below is modified so that the defendants a
re ordered to pay the plaintiff, jointly and severally, the sum of P175,000.00 a
s moral damages and the sum of P60,000.00 as exemplary damages. The rest of the
judgment appealed from is hereby affirmed in toto. Costs against the defendantsappellants." (Rollo, p. 44)
The appellate court denied a motion for reconsideration filed by the petitioners
.
Hence, this petition.
In a resolution dated March 9, 1987, we gave due course to the petition.
The petitioners persist that they made the questioned publication in the perform
ance of their official functions as administrative assistant, in the case of M.
H, Wylie, and commanding officer, in the case of Capt. James Williams of the US
Navy assigned to the U. S. Naval Station, Subic Bay, Olongapo City and were, the
refore, immune from suit for their official actions.
In the case of United States of America v. Guinto (182 SCRA 644 [1990]), we disc
ussed the principle of the state immunity from suit as follows:
"The rule that a state may not be sued without its consent, now expressed in Art
icle XVI, Section 3, of the 1987 Constitution, is one of the generally accepted
principles of international law that we have adopted as part of the law of our l
and under Article II, Section 2.
x x x
x x x
x x x
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed inc
orporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, th
e state is automatically obligated to comply with these principles in its relati
ons with other states.
363
VOL. 209, MAY 28, 1992
363
M, H. Wylie vs. Rarang
As applied to the local state, the doctrine of state immunity is based on the ju
stification given by Justice Holmes that 'there can be no legal right against th
e authority which makes the law on which the right depends.' (Kawanakoa v. Polyb
ank, 205 U.S. 349) There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the local j
urisdiction, the added inhibition is expressed in the maxim par in parem, non ha
bet imperium. All states are sovereign equals and cannot assert jurisdiction ove
r one another. A contrary disposition would, in the language of a celebrated cas
e, 'unduly vex the peace of nations.' (Da Haber v. Queen of Portugal, 17 Q. B. 1
71)
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the stat
e for acts allegedly performed by them in the discharge of their duties. The rul
e is that if the judgment against such officials will require the state itself t
o perform an affirmative act to satisfy the same, such as the appropriation of t
he amount needed to pay the damages awarded against them, the suit must be regar
ded as against the state itself although it has not been formally impleaded. (Ga
rcia v. Chief of Staff, 16 SCRA 120) In such a situation, the state may move to
dismiss the complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called 'the royal prerogative of dishonesty
' because of the privilege it grants the state to defeat any legitimate claim ag
ainst it by simply invoking its non-suability. That is hardly fair, at least in
democratic societies, for the state is not an unfeeling tyrant unmoved by the va
lid claims of its citizens. In fact, the doctrine is not absolute and does not s
ay the state may not be sued under any circumstance. On the contrary, the rule s
ays that the state may not be sued without its consent, which clearly imports th
at it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly. Ex
press consent may be embodied in a general law or a special law. Consent is impl
ied when the state enters into a contract it itself commences litigation.
xxx
xxx
xxx
The above rules are subject to qualification. Express consent is effected only b
y the will of the legislature through the medium of a duly enacted statute. (Rep
ublic v. Purisima, 78 SCRA 470) We have held that not all contracts entered into
by the government will operate as a waiver of its non-suability; distinction mu
st be made between its sovereign and proprietary acts. (United States of America
v. Ruiz, 136 SCRA 487) As for the filing of a complaint by the government, suab
ility will result only where the government is claiming affirmative relief
364
364
from the-defendant. (Lim v. Brownell, 107 Phil. 345)" (at pp. 652-655)
In the same case we had opportunity to discuss extensively the nature and extent
of immunity from suit of United States personnel who are assigned and stationed
in Philippine territory, to wit:
"In the case of the United States of America, the customary rule of internationa
l law on state immunity is expressed with more specificity in the RP-US Bases Tr
eaty. Article III thereof provides as follows:
'lt is mutually agreed that the United States shall have the rights, power and a
uthority within the bases which are necessary for the establishment, use, operat
ion and defense thereof or appropriate for the control thereof and all the right
s, power and authority within the limits of the territorial waters and air space
adjacent to, or in the vicinity of, the bases which are necessary to provide ac
cess to them or appropriate for their control.'
The petitioners also rely heavily on Baer v, Tizon, (57 SCRA 1) along with sever
al other decisions, to support their position that they are not suable in the ca
ses below, the United States not having waived its sovereign immunity from suit.
It is emphasized that in Baer, the Court held;
The invocation of the doctrine of immunity from suit of a foreign state without
its consent is appropriate. More specifically, insofar as alien armed forces is
concerned, the starting point is Raquiza v. Bradford, a 1945 decision. In dismis
sing a habeas corpus petition for the release of petitioners confined by America
n army authorities, Justice Hilado, speaking for the Court, cited Coleman v. Ten
nessee, where it was explicitly declared: 'lt is well settled that a foreign arm
y, permitted to march through a friendly country or to be stationed in it, by pe
rmission of its government or sovereign, is exempt from the civil and criminal j
urisdiction of the place,' Two years later, in Tubb and Tedrow v. Griess, this C
ourt relied on the ruling in Raquiza v. Bradford and cited in support thereof ex
cerpts from the works of the following authoritative writers: Vattel, Wheaton, H
all, Lawrence, Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy d
emands the clarification that after the conclusion of the Philippine-American Mi
litary Bases Agreement, the treaty provisions should control on such matter, the
assumption being that there was a manifestation of the submission to juris365
VOL. 209, MAY 28, 1992
365
diction on the part of the foreign power whenever appropriate. More to the point
is Syquia v. Almeda Lopez, where plaintiffs as lessors sued the Commanding Gene
ral of the United States Army in the Philippines, seeking the restoration to the
m of the apartment buildings they owned leased to the United States armed forces
station in the Manila area. A motion to dismiss on the ground of non-suability
was filed and upheld by respondent Judge. The matter was taken to this Court in
a mandamus proceeding. It failed. It was the ruling that respondent Judge acted
correctly considering that the 'action must be considered as one against the U.S
. Government.' The opinion of Justice Montemayor continued: 'lt is clear that th
e courts of the Philippines including the Municipal Court of Manila have no juri
sdiction over the present case for unlawful detainer. The question of lack of ju
risdiction was raised and interposed at the very beginning of the action. The U.
S. Government has not given its consent to the filing of this suit which is esse
ntially against her, though not in name. Moreover, this is not only a case of a
citizen filing a suit against his own Government without the latter's consent bu
t it is of a citizen filing an action against a foreign government without said
government's consent, which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule are so elementary
and of such general acceptance that we deem it unnecessary to cite authorities
in support thereof.'
xxx
xxx
xxx
It bears stressing at this point that the above observations do not confer on th
e United States of America a blanket immunity for all acts done by it or its age
nts in the Philippines. Neither may the other petitioners claim that they are al
so insulated from suit in this country merely because they have acted as agents
of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state, wi
ll be deemed to have impliedly waived its non-suability if it has entered into a
contract in its proprietary or private capacity. It is only when the contract i
nvolves its sovereign or governmental capacity that no such waiver may be implie
d. This was our ruling in United States of America v. Ruiz, (136 SCRA 487) where
the transaction in question dealt with the improvement of the wharves in the na
val installation of Subic Bay. As this was a clearly governmental function, we h
eld that the contract did not operate to divest the United States of its soverei
gn immunity from suit. In the words of Justice Vicente Abad Santos:
366
366
M. H. Wylie us. Rarang
The traditional rule of immunity excepts a State from being sued in the courts o
f another State without its consent or waiver. This rule is a necessary conseque
nce of the principles of independence and equality of States. However, the rules
of International Law are not petrified; they are constantly developing and evol
ving. And because the activities of states have multiplied, it has been necessar
y to distinguish them between sovereign and governmental acts (jure imperii) and p
rivate, commercial and proprietary acts (jure gestionis). The result is that Sta
te immunity now extends only to acts jure imperii. The restrictive application o
f State immunity is now the rule in the United States, the United Kingdom and ot
her states in Western Europe,
xxx
The restrictive application of State immunity is proper only when the proceeding
s arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly g
iven its consent to be sued only when it enters into business contracts. It does
not apply where the contract relates to the exercise of its sovereign functions
. In this case the projects are an integral part of the naval base which is devo
ted to the defense of both the United States and the Philippines, indisputably a
function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.'
The other petitioners in the cases before us all aver they have acted in the dis
charge of their official functions as officers or agents of the United States. H
owever, this is a matter of evidence. The charges against them may not be summar
ily dismissed on their mere assertion that their acts are imputable to the Unite
d States of America, which has not given its consent to be sued. In fact, the de
fendants are sought to be held answerable for personal torts in which the United
States itself is not involved. If found liable, they and they alone must satisf
y the judgment." (At pp. 655-658)
In the light of these precedents, we proceed to resolve the present case.
The POD was published under the direction and authority of the commanding office
r, U.S. Naval Station Subic Bay. The administrative assistant, among his other d
uties, is tasked to prepare and distribute the POD. On February 3, 1978, when th
e questioned article was published in the POD, petitioner
367
VOL. 209, MAY 28, 1992
367
Capt. James Williams was the commanding officer while petitioner M. H. Wylie was
the administrative assistant of the US Naval Station of Subic bay.
The NAVSTA ACTION LINE INQUIRY is a regular feature of the POD. It is a telephon
e answering device in the office of the Administrative Assistant. The Action Lin
e is intended to provide personnel access to the Commanding Officer on matters t
hey feel should be brought to his attention for correction or investigation. The
matter of inquiry may be phoned in or mailed to the POD. (TSN, September 9, 198
0, pp. 12-13, Jerry Poblon) According to M. H. Wylie, the action line naming "Au
ring" was received about three (3) weeks prior to its being published in the POD
on February 3, 1978. It was forwarded to Rarang's office of employment, the Pro
vost Marshal, for comment. The Provost Marshal office's response "x x x included
a short note stating that if the article was published, to remove the name." (E
xhibit 8-A, p. 5) The Provost Marshal's response was then forwarded to the execu
tive officer and to the commanding officer for approval. The approval of the com
manding officer was forwarded to the office of the Administrative Assistant for
inclusion in the POD. A certain Mrs. Dologmodin, a clerk typist in the office of
the Administrative Assistant prepared the smooth copy of the POD. Finally, M. H
. Wylie, the administrative assistant signed the smooth copy of the POD but fail
ed to notice the reference to "Auring" in the action line inquiry. (Exh. 8-A, pp
. 4-5, Questions Nos. 14-15).
There is no question, therefore, that the two (2) petitioners actively participa
ted in screening the features and articles in the POD as part of their official
functions. Under the rule that U.S. officials in the performance of their offici
al functions are immune from suit, then it should follow that the petitioners ma
y not be held liable for the questioned publication.
It is to be noted, however, that the petitioners were sued in their personal cap
acities for their alleged tortious acts in publishing a libelous article.
The question, therefore, arises are American naval officers who commit a crime or
tortious act while discharging official functions still covered by the principle
of state immunity from suit? Pursuing the question further, does the grant of r
ights, power, and authority to the United States under the RP-US
368
368
Bases Treaty cover immunity of its officers from crimes and torts? Our answer is
No.
Killing a person in cold blood while on patrol duty, running over a child while
driving with reckless imprudence on an official trip, or slandering a person dur
ing office hours could not possibly be covered by the immunity agreement. Our la
ws and, we presume, those of the United States do not allow the commission of cr
imes in the name of official duty.
The case of Chavez v. Sandiganbayan, 193 SCRA 282 [1991] gives the law on immuni
ty from suit of public officials:
"The general rule is that public officials can be held personally accountable fo
r acts claimed to have been performed in connection with official duties where t
hey have acted ultra vires or where there is showing of bad faith.
xxx
xxx
xxx
"Moreover, the petitioner's argument that the immunity proviso under Section 4(a
) of Executive Order No. 1 also extends to him is not well-taken. A mere invocat
ion of the immunity clause does not ipso facto result in the charges being autom
atically dropped.
"In the case of Presidential Commission on Good Government v. Pea (159 SCRA 556 [
1988]) then Chief Justice Claudio Teehankee, added a clarification of the immuni
ty accorded PCGG officials under Section 4(a) of Executive Order No. 1 as follow
s:
" 'With respect to the qualifications expressed by Mr. Justice Feliciano in his
separate opinion, I just wish to point out two things: First, the main opinion d
oes not claim absolute immunity for the members of the Commission. The cited sec
tion of Executive Order No. 1 provides the Commission's members immunity from su
it thus: 'No civil action shall lie against the Commission or any member thereof
for anything done or omitted in the discharge of the task contemplated by this
order.' No absolute immunity like that sought by Mr. Marcos in his Constitution
for himself and his subordinates is herein involved. It is understood that the i
mmunity granted the members of the Commission by virtue of the unimaginable magn
itude of its task to recover the plundered wealth and the State's exercise of po
lice power was immunity from liability for damages in the official discharge of
the task granted the members of the Commission much in the same manner that judg
es are immune from suit in the official discharge of the functions of their offi
ce. x x x (at pp 581-582)
369
VOL. 209, MAY 28, 1992
369
xxx
xxx
xxx
"Immunity from suit cannot institutionalize irresponsibility and non-accountabil
ity nor grant a privileged status not claimed by any other official of the Repub
lic. (id., at page 586)
"Where the petitioner exceeds his authority as Solicitor General, acts in bad fa
ith, or, as contended by the private respondent, 'maliciously conspir(es) with t
he PCGG commissioners in persecuting respondent Enrile by filing against him an
evidently baseless suit in derogation of the latter's constitutional rights and
liberties' (Rollo, p. 417), there can be no question that a complaint for damage
s does not confer a license to persecute or recklessly injure another. The actio
ns governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations
may be taken against public officers or private citizens alike. x x x" (pp. 289291)
We apply the same ruling to this case.
The subject article in the US Newsletter POD dated February 3, 1978 mentions a c
ertain "Auring" as "x x a disgrace to her division and to the Office of the Prov
ost Marshal." The same article explicitly implies that Auring was consuming and
appropriating for herself confiscated items like cigarettes and foodstuffs. Ther
e is no question that the Auring alluded to in the Article was the private respo
ndent as she was the only Auring in the Office of the Provost Marshal. Moreover,
as a result of this article, the private respondent was investigated by her sup
ervisor. Before the article came out, the private respondent had been the recipi
ent of commendations by her superiors for honesty in the performance of her duti
es.
It may be argued that Captain James Williams as commanding officer of the naval
base is far removed in the chain of command from the offensive publication and i
t would be asking too much to hold him responsible for everything which goes wro
ng on the base. This may be true as a general rule. In this particular case, how
ever, the records show that the offensive publication was sent to the commanding
officer for approval and he approved it. The factual findings of the two courts
below are based on the records, The petitioners have shown no convincing reason
s why our usual respect for the findings of the trial court and the respondent c
ourt should be withheld in this particular case and why their decisions should b
e reversed.
Article 2176 of the Civil Code prescribes a civil liability for
370
370
damages caused by a person's act or omission constituting fault or negligence, t
o wit:
"Article 2176. Whoever by act or omission, causes damage to another, there being
fault or negligence is obliged to pay for the damage done. Such fault or neglig
ence, if there is no pre-existing contractual relation between the parties, is c
alled a quasi-delict and is governed by the provisions of this Chapter."
"Fault" or "negligence" in this Article covers not only acts "not punishable by
law" but also acts criminal in character, whether intentional or voluntary or ne
gligent." (Andamo v. Intermediate Appellate Court, 191 SCRA 195 [1990]).
Moreover, Article 2219(7) of the Civil Code provides that moral damages may be r
ecovered in case of libel, slander or any other form of defamation. In effect, t
he offended party in these cases is given the right to receive from the guilty p
arty moral damages for injury to his feelings and reputation in addition to puni
tive or exemplary damages. (Occena v. Icamina, 181 SCRA 328 [1990]). In another
case, Heirs of Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963], we ruled that the
allegation of forgery of documents could be a defamation, which in the light of
Article 2219(7) of the Civil Code could by analogy be ground for payment of mora
l damages, considering the wounded feelings and besmirched reputation of the def
endants.
Indeed the imputation of theft contained in the POD dated February 3, 1978 is a
defamation against the character and reputation of the private respondent. Petit
ioner Wylie himself admitted that the Office of the Provost Marshal explicitly r
ecommended the deletion of the name Auring if the article were published, The pe
titioners, however, were negligent because under their direction they issued the
publication without deleting the name "Auring." Such act or omission is ultra v
ires and cannot be part of official duty. It was a tortious act which ridiculed
the private respondent. As a result of the petitioners' act, the private respond
ent, according to the record, suffered besmirched reputation, serious anxiety, w
ounded feelings and social humiliation, specially so, since the article was base
less and false. The petitioners, alone, in their personal capacities are liable
for the damages they caused the private respondent.
371
VOL. 209, MAY 28, 1992
371
Pardo de Tavera us. Civil Service Commission
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolut
ion of the then Intermediate Appellate Court, now Court of Appeals, are AFFIRMED
.
Bidin, Davide, Jr. and Romero, JJ., concur.
Feliciano, J., I did not participate in the deliberations.
Petition dismissed; decision and resolution affirmed.
Note. Doctrine is also applicable to complaints filed against officials of the sta
te for acts allegedly performed by them in the discharged of their duties (Shari
f vs. Court of Appeals, 191 SCRA 713).
o0o
Copyright 2015 Central Book Supply, Inc. All rights reserved.
G.R. No. 76607. February 26, 1990.*

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES, petitioners, vs
. HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court, A
ngeles City, ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C. DEL PILAR
, respondents.
G.R. No. 79470. February 26, 1990.*
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/ SGT. USAF, WILFREDO BELSA, PETER
ORASCION AND ROSE CARTALLA, petitioners, vs. HON. RODOLFO D. RO-DRIGO, as Presid
ing Judge of Branch 7, Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet
and FABIAN GENO-VE, respondents.
G.R. No. 80018. February 26, 1990.*
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F. BOSTICK, pe
titioners, vs. HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Cou
rt, Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258. February 26, 1990.*
UNITED STATES OF AMERICA, MAJOR GENERAL MI-CHAEL P. C. CARNS, AIC ERNEST E. RIVE
NBURGH, AIC
_______________
* EN BANC.
645
VOL. 182, FEBRUARY 26, 1990
645
United States of America vs. Guinto
ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THO-MAS MITCHELL, SGT. WAYNE L. BENJA
MIN, ET AL., petitioners, vs. HON. CONCEPCION S. ALARCON VERGARA, as Presiding J
udge, Branch 62 REGIONAL TRIAL COURT, Ange-les City, and RICKY SANCHEZ, FREDDIE
SANCHEZ AKA FREDDIE RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL.,
respondents.
Political Law; State Immunity from Suit; When the government enters into a contr
act, it is deemed to have descended to the level of the other contracting party,
and divested of its sovereign immunity from suit with its implied consent. The ge
neral law waiving the immunity of the state from suit is found in Act No. 3083,
under which the Philippine government consents and submits to be sued upon any mo
neyed claim involving liability arising from contract, express or implied, which
could serve as a basis of civil action between private parties. In Merritt v. Go
vernment of the Philippine Islands, a special law was passed to enable a person
to sue the government for an alleged tort. When the government enters into a con
tract, it is deemed to have descended to the level of the other contracting part
y and divested of its sovereign immunity from suit with its implied consent. Wai
ver is also implied when the government files a complaint, thus opening itself t
o a counterclaim. The above rules are subject to qualification. Express consent
is effected only by the will of the legislature through the medium of a duly ena
cted statute. We have held that not all contracts entered into by the government
will operate as a waiver of its non-suability; distinction must be made between
its sovereign and proprietary acts. As for the filing of a complaint by the gov
ernment, suability will result only where the government is claiming affirmative
relief from the defendant.
Same; Same; Same; Rule on waiver, not applicable when the contract entered into
involves its sovereign or governmental capacity. There is no question that the Un
ited States of America, like any other state, will be deemed to have impliedly w
aived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governm
ental capacity that no such waiver may be implied. This was our ruling in United
States of America v. Ruiz, where the transaction in question dealt with the imp
rovement of the wharves in the naval installation at Subic Bay. As this was a cl
early governmental function, we held that the contract did not operate to divest
the United States of its sovereign immunity from suit.
646
646
Same; Same; Same; Officers acting in their official capacity cannot be directly
impleaded for acts imputable to their principal which has not given its consent
to be sued. It is clear from a study of the records of G.R. No. 80018 that the ind
ividually-named petitioners therein were acting in the exercise of their officia
l functions when they conducted the buy-bust operation against the complainant a
nd thereafter testified against him at his trial. The said petitioners were in f
act connected with the Air Force Office of Special Investigators and were charge
d precisely with the function of preventing the distribution, possession and use
of prohibited drugs and prosecuting those guilty of such acts. It cannot for a
moment be imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It follows t
hat for discharging their duties as agents of the United States, they cannot be
directly im-pleaded for acts imputable to their principal, which has not given i
ts consent to be sued. As we observed in Sanders v. Veridiano: Given the officia
l character of the above-described letters, we have to conclude that the petitio
ners were, legally speaking, being sued as officers of the United States governm
ent. As they have acted on behalf of that government, and within the scope of th
eir authority, it is that government, and not the petitioners personally, that i
s responsible for their acts.
Same; Same; Express waiver of immunity cannot be made by a mere counsel of the g
overnment but must be effected through a duly enacted statute. We reject the concl
usion of the trial court that the answer filed by the special counsel of the Off
ice of the Sheriff Judge Advocate of Clark Air Base was a submission by the Unit
ed States government to its jurisdiction. As we noted in Republic v. Purisima, e
xpress waiver of immunity cannot be made by a mere counsel of the government but
must be effected through a duly-enacted statute. Neither does such answer come
under the implied forms of consent as earlier discussed.
Same; Same; By entering into an employment contract with Geno-ve in the discharg
e of its proprietary functions, it impliedly divested itself of its sovereign im
munity from suit. From these circumstances, the Court can assume that the restaura
nt services offered at the John Hay Air Station partake of the nature of a busin
ess enterprise undertaken by the United States government in its proprietary cap
acity. Such services are not extended to the American servicemen for free as a p
erquisite of membership in the Armed Forces of the United States. Neither does i
t appear that they are exclusively offered to these servicemen; on the contrary,
it is well known that they are available to
647
647
the general public as well, including the tourists in Baguio City, many of whom
make it a point to visit John Hay for this reason. All persons availing themselv
es of this facility pay for the privilege like all other customers as in ordinar
y restaurants. Although the prices are conced-edly reasonable and relatively low
, such services are undoubtedly operated for profit, as a commercial and not a g
overnmental activity. The consequence of this finding is that the petitioners ca
nnot invoke the doctrine of state immunity to justify the dismissal of the damag
e suit against them by Genove. Such defense will not prosper even if it be estab
lished that they were acting as agents of the United States when they investigat
ed and later dismissed Genove. For that matter, not even the United States gover
nment itself can claim such immunity. The reason is that by entering into the em
ployment contract with Genove in the discharge of its proprietary functions, it
impliedly divested itself of its sovereign immunity from suit.
PETITION for certiorari and prohibition with preliminary injunction to review th
e decision of the Regional Trial Court of Angeles City, Br. 62.
Luna, Sison & Manas Law Office for petitioners.
CRUZ, J.:
These cases have been consolidated because they all involve the doctrine of stat
e immunity. The United States of America was not impleaded in the complaints bel
ow but has moved to dismiss on the ground that they are in effect suits against
it to which it has not consented. It is now contesting the denial of its motions
by the respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of the U.S
. Air Force stationed in Clark Air Base in connection with the bidding conducted
by them for contracts for barbering services in the said base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Excha
nge, U.S. Air Force, solicited bids for such contracts through its contracting o
fficer, James F. Shaw. Among those who submitted their bids were private respond
ents Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar. Valenc
ia had been a concessionaire inside Clark for 34 years; del Pilar for 12 years;
and Tanglao for 50 years.
648
648
The bidding was won by Ramon Dizon, over the objection of the private respondent
s, who claimed that he had made a bid for four facilities, including the Civil E
ngineering Area, which was not included in the invitation to bid.
The private respondents complained to the Philippine Area Exchange (PHAX). The l
atter, through its representatives, petitioners Yvonne Reeves and Frederic M. Sm
ouse, explained that the Civil Engineering concession had not been awarded to Di
zon as a result of the February 24, 1986 solicitation. Dizon was already operati
ng this concession, then known as the NCO club concession, and the expiration of
the contract had been extended from June 30, 1986 to August 31, 1986. They furt
her explained that the solicitation of the CE barbershop would be available only
by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court below t
o compel PHAX and the individual petitioners to cancel the award to defendant Di
zon, to conduct a rebid-ding for the barbershop concessions and to allow the pri
vate respondents by a writ of preliminary injunction to continue operating the c
oncessions pending litigation.1
Upon the filing of the complaint, the respondent court issued an ex parte order
directing the individual petitioners to maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and opposition to th
e petition for preliminary injunction on the ground that the action was in effec
t a suit against the United States of America, which had not waived its non-suab
ility. The individual defendants, as officials/employees of the U.S. Air Force,
were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application for a wr
it of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners motion to dismiss, ho
lding in part as follows:
From the pleadings thus far presented to this Court by the parties, the Court s at
tention is called by the relationship between the plaintiffs as well as the defe
ndants, including the US Government, in

_______________
1 Civil Case No. 4772.
649
649
that prior to the bidding or solicitation in question, there was a binding contr
act between the plaintiffs as well as the defendants, including the US Governmen
t. By virtue of said contract of concession, it is the Court s understanding that
neither the US Government nor the herein principal defendants would become the e
mployer/s of the plaintiffs but that the latter are the employers themselves of
the barbers, etc. with the employer, the plaintiffs herein, remitting the stipul
ated percentage of commissions to the Philippine Area Exchange. The same circums
tance would become in effect when the Philippine Area Exchange opened for biddin
g or solicitation the questioned bar-ber shop concessions. To this extent, there
fore, indeed a commercial transaction has been entered, and for purposes of the
said solicitation, would necessarily be entered between the plaintiffs as well a
s the defendants.
The Court, further, is of the view that Article XVIII of the RP-US Bases Agreeme
nt does not cover such kind of services falling under the concessionaireship, su
ch as a barber shop concession.2
On December 11, 1986, following the filing of the herein petition for certiorari
and prohibition with preliminary injunction, we issued a temporary restraining
order against further proceedings in the court below.3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitione
rs Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his di
smissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Stat
ion in Baguio City. It had been ascertained after investigation, from the testim
ony of Belsa, Cartalla and Orascion, that Genove had poured urine into the soup
stock used in cooking the vegetables served to the club customers. Lamachia, as
club manager, suspended him and thereafter referred the case to a board of arbit
rators conformably to the collective bargaining agreement between the Center and
its employees. The board unanimously found him guilty and recommended his dismi
ssal. This was effected on March 5, 1986, by Col. David C. Kimball, Commander of
the 3rd Combat Support Group, PACAF Clark Air Force Base. Genove s reaction was t
o file his complaint in the Regional Trial Court of Baguio City against the indi
vidual
_______________
2 Annex B , Rollo, pp. 36-38.
3 Rollo, p. 88.
650
650
petitioners.4
On March 13, 1987, the defendants, joined by the United States of America, moved
to dismiss the complaint, alleging that Lamachia, as an officer of the U.S. Air
Force stationed at John Hay Air Station, was immune from suit for the acts done
by him in his official capacity. They argued that the suit was in effect agains
t the United States, which had not given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an order whic
h read in part:
It is the understanding of the Court, based on the allegations of the complaint wh
ich have been hypothetically admitted by defen-dants upon the filing of their mo
tion to dismiss that although defen-dants acted initially in their official capaci
ties, their going beyond what their functions called for brought them out of the
protective mantle of whatever immunities they may have had in the beginning. Th
us, the allegation that the acts complained of were illegal, done with extreme bad
faith and with pre-conceived sinister plan to harass and finally dismiss the plaint
iff, gains significance.5
The petitioners then came to this Court seeking certiorari and prohibition with
preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O Don
nell, an extension of Clark Air Base, was arrested following a buy-bust operatio
n conducted by the individual petitioners herein, namely, Tomi J. King, Darrel D
. Dye and Stephen F. Bostick, officers of the U.S. Air Force and special agents
of the Air Force Office of Special Investigators (AFOSI). On the basis of the sw
orn statements made by them, an information for violation of R.A. 6425, otherwis
e known as the Dangerous Drugs Act, was filed against Bautista in the Regional T
rial Court of Tarlac. The above-named officers testified against him at his tria
l. As a result of the filing of the charge, Bautista was dismissed from his empl
oyment. He then filed a complaint for damages against the individual petitioners
herein claiming that it was because of their acts that he was
_______________
4 Civil Case No. 829-R(298).
5 Annex A, Rollo, p. 38.
651
651
removed.6
During the period for filing of the answer, Mariano Y. Navarro, a special counse
l assigned to the International Law Division, Office of the Staff Judge Advocate
of Clark Air Base, entered a special appearance for the defendants and moved fo
r an extension within which to file an answer and/or other pleadings. His reason w
as that the Attorney General of the United States had not yet designated counsel
to represent the defendants, who were being sued for their official acts. Withi
n the extended period, the defendants, without the assistance of counsel or auth
ority from the U.S. Department of Justice, filed their answer. They alleged ther
ein as affirmative defenses that they had only done their duty in the enforcemen
t of the laws of the Philippines inside the American bases pursuant to the RP-US
Military Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to r
epresent the defendants, filed with leave of court a motion to withdraw the answ
er and dismiss the complaint. The ground invoked was that the defendants were ac
ting in their official capacity when they did the acts complained of and that th
e complaint against them was in effect a suit against the United States without
its consent.
The motion was denied by the respondent judge in his order dated September 11, 1
987, which held that the claimed immunity under the Military Bases Agreement cov
ered only criminal and not civil cases. Moreover, the defendants had come under
the jurisdiction of the court when they submitted their answer.7
Following the filing of the herein petition for certiorari and prohibition with
preliminary injunction, we issued on October 14, 1987, a temporary restraining o
rder.8
In G.R. No. 80258, a complaint for damages was filed by the private respondents
against the herein petitioners (except the United States of America), for injuri
es allegedly sustained by the plaintiffs as a result of the acts of the defendan
ts.9 There is a conflict of factual allegations here. According to the plaintiff
s,
_______________
6 Civil Case No. 115-C-87.

8 Rollo, p. 69.
9 Civil Case No. 4996.
652
652
the defendants beat them up, handcuffed them and unleashed dogs on them which bi
t them in several parts of their bodies and caused extensive injuries to them. T
he defendants deny this and claim the plaintiffs were arrested for theft and wer
e bitten by the dogs because they were struggling and resisting arrest. The defe
ndants stress that the dogs were called off and the plaintiffs were immediately
taken to the medical center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of America and the indiv
idually named defendants argued that the suit was in effect a suit against the U
nited States, which had not given its consent to be sued. The defendants were al
so immune from suit under the RP-US Bases Treaty for acts done by them in the pe
rformance of their official functions.
The motion to dismiss was denied by the trial court in its order dated August 10
, 1987, reading in part as follows:
The defendants certainly cannot correctly argue that they are immune from suit.
The allegations, of the complaint which is sought to be dismissed, had to be hyp
othetically admitted and whatever ground the defendants may have, had to be vent
ilated during the trial of the case on the merits. The complaint alleged crimina
l acts against the individually-named defendants and from the nature of said act
s it could not be said that they are Acts of State, for which immunity should be
invoked. If the Filipinos themselves are duty bound to respect, obey and submit
themselves to the laws of the country, with more reason, the members of the Uni
ted States Armed Forces who are being treated as guests of this country should r
espect, obey and submit themselves to its laws.10
and so was the motion for reconsideration. The defendants submitted their answer
as required but subsequently filed their petiton for certiorari and prohibition
with preliminary injunction with this Court. We issued a temporary restraining
order on October 27, 1987.11
II
The rule that a state may not be sued without its consent, now
_______________
11 Rollo, p. 181.
653
653
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the gen
erally accepted principles of international law that we have adopted as part of
the law of our land under Article II, Section 2. This latter provision merely re
iterates a policy earlier embodied in the 1935 and 1973 Constitutions and also i
ntended to manifest our resolve to abide by the rules of the international commu
nity.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed inc
orporated in the law of every civilized state as a condition and consequence of
its membership in the society of nations. Upon its admission to such society, th
e state is automatically obligated to comply with these principles in its relati
ons with other states.
As applied to the local state, the doctrine of state immunity is based on the ju
stification given by Justice Holmes that there can be no legal right against the
authority which makes the law on which the right depends. 12 There are other pract
ical reasons for the enforcement of the doctrine. In the case of the foreign sta
te sought to be impleaded in the local jurisdiction, the added inhibition is exp
ressed in the maxim par in parem, non habet imperium. All states are sovereign e
quals and cannot assert jurisdiction over one another. A contrary disposition wo
uld, in the language of a celebrated case, unduly vex the peace of nations. 13
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the stat
e for acts allegedly performed by them in the discharge of their duties. The rul
e is that if the judgment against such officials will require the state itself t
o perform an affirmative act to satisfy the same, such as the appropriation of t
he amount needed to pay the damages awarded against them, the suit must be regar
ded as against the state itself although it has not been formally impleaded.14 I
n such a
_______________
12 Kawanakoa v. Polybank, 205 U.S. 349.
13 De Haber v. Queen of Portugal, 17 Q.B. 171.
14 Garcia v. Chief of Staff, 16 SCRA 120.
654
654
situation, the state may move to dismiss the complaint on the ground that it has
been filed without its consent.
The doctrine is sometimes derisively called the royal prerogative of dishonesty be
cause of the privilege it grants the state to defeat any legitimate claim agains
t it by simply invoking its non-suability. That is hardly fair, at least in demo
cratic societies, for the state is not an unfeeling tyrant unmoved by the valid
claims of its citizens. In fact, the doctrine is not absolute and does not say t
he state may not be sued under any circumstance. On the contrary, the rule says
that the state may not be sued without its consent, which clearly imports that i
t may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly. Ex
press consent may be embodied in a general law or a special law. Consent is impl
ied when the state enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act No.
3083, under which the Philippine government consents and submits to be sued upon
any moneyed claim involving liability arising from contract, express or implied,
which could serve as a basis of civil action between private parties. In Merritt
v. Government of the Philippine Islands,15 a special law was passed to enable a
person to sue the government for an alleged tort. When the government enters in
to a contract, it is deemed to have descended to the level of the other contract
ing party and divested of its sovereign immunity from suit with its implied cons
ent.16 Waiver is also implied when the government files a complaint, thus openin
g itself to a counterclaim.17
The above rules are subject to qualification. Express consent is effected only b
y the will of the legislature through the medium of a duly enacted statute.18 We
have held that not all contracts entered into by the government will operate as
a
_________________
15 34 Phil. 311.
16 Santos v. Santos, 92 Phil. 281; Lyons v. United States of America, 104 Phil.
593.
17 Froilan v. Pan Oriental Shipping Co., G.R. No. 6060, September 30, 1950.
18 Republic v. Purisima, 78 SCRA 470.
655
655
waiver of its non-suability; distinction must be made between its sovereign and
proprietary acts.19 As for the filing of a complaint by the government, suabilit
y will result only where the government is claiming affirmative relief from the
defendant.20
In the case of the United States of America, the customary rule of international
law on state immunity is expressed with more specificity in the RP-US Bases Tre
aty. Article III thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power and au
thority within the bases which are necessary for the establishment, use, operati
on and defense thereof or appropriate for the control thereof and all the rights
, power and authority within the limits of the territorial waters and air space
adjacent to, or in the vicinity of, the bases which are necessary to provide acc
ess to them or appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon,21 along with several other d
ecisions, to support their position that they are not suable in the cases below,
the United States not having waived its sovereign immunity from suit. It is emp
hasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a foreign state without
its consent is appropriate. More specifically, insofar as alien armed forces is
concerned, the starting point is Raquiza v. Bradford, a 1945 decision. In dismis
sing a habeas corpus petition for the release of petitioners confined by America
n army authorities, Justice Hilado, speaking for the Court, cited Coleman v. Ten
nessee, where it was explicitly declared: It is well settled that a foreign army,
permitted to march through a friendly country or to be stationed in it, by perm
ission of its government or sovereign, is exempt from the civil and criminal jur
isdiction of the place. Two years later, in Tubb and Tedrow v. Griess, this Court
relied on the ruling in Raquiza v. Bradford and cited in support thereof excerp
ts from the works of the following authoritative writers: Vattel, Wheaton, Hall,
Lawrence, Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy deman
ds the clarification that after the conclusion of the Philippine-American
________________
19 United States of America v. Ruiz, 136 SCRA 487.
20 Lim v. Brownell, 107 Phil. 345.
21 57 SCRA 1.
656
656
Military Bases Agreement, the treaty provisions should control on such matter, t
he assumption being that there was a manifestation of the submission to jurisdic
tion on the part of the foreign power whenever appropriate. More to the point is
Syquia v. Almeda Lopez, where plaintiffs as lessors sued the Commanding General
of the United States Army in the Philippines, seeking the restoration to them o
f the apartment buildings they owned leased to the United States armed forces st
ationed in the Manila area. A motion to dismiss on the ground of non-suability w
as filed and upheld by respondent Judge. The matter was taken to this Court in a
mandamus proceeding. It failed. It was the ruling that respondent Judge acted c
orrectly considering that the action must be considered as one against the U.S. G
overnment. The opinion of Justice Montemayor continued: It is clear that the court
s of the Philippines including the Municipal Court of Manila have no jurisdictio
n over the present case for unlawful detainer. The question of lack of jurisdict
ion was raised and interposed at the very beginning of the action. The U.S. Gove
rnment has not given its consent to the filing of this suit which is essentially
against her, though not in name. Moreover, this is not only a case of a citizen
filing a suit against his own Government without the latter s consent but it is o
f a citizen filing an action against a foreign government without said governmen
t s consent, which renders more obvious the lack of jurisdiction of the courts of
his country. The principles of law behind this rule are so elementary and of suc
h general acceptance that we deem it unnecessary to cite authorities in support
thereof. Then came Marvel Building Corporation v. Philippine War Damage Commissio
n, where respondent, a United States Agency established to compensate damages su
ffered by the Philippines during World War II was held as falling within the abo
ve doctrine as the suit against it would eventually be a charge against or financ
ial liability of the United States Government because x x x, the Commission has
no funds of its own for the purpose of paying money judgments. The Syquia ruling
was again explicitly relied upon in Marquez Lim v. Nelson, involving a complaint
for the recovery of a motor launch, plus damages, the special defense interpose
d being that the vessel belonged to the United States Government, that the defend
ants merely acted as agents of said Government, and that the United States Gover
nment is therefore the real party in interest. So it was in Philippine Alien Prop
erty Administration v. Castelo, where it was held that a suit against Alien Prop
erty Custodian and the Attorney General of the United States involving vested pr
operty under the Trading with the Enemy Act is in substance a suit against the U
nited States. To the same effect is Parreno v. McGranery, as the following excer
pt from the opinion of Justice Tuazon clearly shows: It is a widely accepted prin
ciple of international law, which is
657
657
made a part of the law of the land (Article II, Section 3 of the Constitution),
that a foreign state may not be brought to suit before the courts of another sta
te or its own courts without its consent. Finally, there is Johnson v. Turner, an
appeal by the defendant, then Commanding General, Philippine Command (Air Force
, with office at Clark Field) from a decision ordering the return to plaintiff o
f the confiscated military payment certificates known as scrip money. In reversi
ng the lower court decision, this Tribunal, through Justice Montemayor, relied o
n Syquia v. Almeda Lopez, explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer on th
e United States of America a blanket immunity for all acts done by it or its age
nts in the Philippines. Neither may the other petitioners claim that they are al
so insulated from suit in this country merely because they have acted as agents
of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state, wi
ll be deemed to have impliedly waived its non-suability if it has entered into a
contract in its proprietary or private capacity. It is only when the contract i
nvolves its sovereign or governmental capacity that no such waiver may be implie
d. This was our ruling in United States of America v. Ruiz,22 where the transact
ion in question dealt with the improvement of the wharves in the naval installat
ion at Subic Bay. As this was a clearly governmental function, we held that the
contract did not operate to divest the United States of its sovereign immunity f
rom suit. In the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the courts o
f another State without its consent or waiver. This rule is a necessary conseque
nce of the principles of independence and equality of States. However, the rules
of International Law are not petrified; they are constantly developing and evol
ving. And because the activities of states have multiplied, it has been necessar
y to distinguish them between sovereign and governmental acts (jure imperii) and p
rivate, commercial and proprietary acts (jure gestionis).
________________
22 136 SCRA 487.
658
658
The result is that State immunity now extends only to acts jure imperii. The res
trictive application of State immunity is now the rule in the United States, the
United Kingdom and other states in Western Europe.
xxx
dedicated to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the dis
charge of their official functions as officers or agents of the United States. H
owever, this is a matter of evidence. The charges against them may not be summar
ily dismissed on their mere assertion that their acts are imputable to the Unite
d States of America, which has not given its consent to be sued. In fact, the de
fendants are sought to be held answerable for personal torts in which the United
States itself is not involved. If found liable, they and they alone must satisf
y the judgment.
In Festejo v. Fernando,23 a bureau director, acting without any authority whatso
ever, appropriated private land and converted it into public irrigation ditches.
Sued for the value of the lots invalidly taken by him, he moved to dismiss the
complaint on the ground that the suit was in effect against the Philippine gover
nment, which had not given its consent to be sued. This Court sustained the deni
al of the motion and held that the doctrine of state immunity was not applicable
. The director was being sued in his private capacity for a personal tort.
With these considerations in mind, we now proceed to resolve the cases at hand.
________________
23 50 O.G. 1556.
659
659
III
It is clear from a study of the records of G.R. No. 80018 that the individuallynamed petitioners therein were acting in the exercise of their official function
s when they conducted the buy-bust operation against the complainant and thereaf
ter testified against him at his trial. The said petitioners were in fact connec
ted with the Air Force Office of Special Investigators and were charged precisel
y with the function of preventing the distribution, possession and use of prohib
ited drugs and prosecuting those guilty of such acts. It cannot for a moment be
imagined that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that for di
scharging their duties as agents of the United States, they cannot be directly i
mpleaded for acts imputable to their principal, which has not given its consent
to be sued. As we observed in Sanders v. Veridiano:24
Given the official character of the above-described letters, we have to conclude
that the petitioners were, legally speaking, being sued as officers of the Unit
ed States government. As they have acted on behalf of that government, and withi
n the scope of their authority, it is that government, and not the petitioners p
ersonally, that is responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which holds the go
vernment liable if it acts through a special agent. The argument, it would seem,
is premised on the ground that since the officers are designated special agents,
the United States government should be liable for their torts.
There seems to be a failure to distinguish between suability and liability and a
misconception that the two terms are synonymous. Suability depends on the conse
nt of the state to be sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not necessarily mean that it
is liable; on the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that the state ha
s allowed itself to be sued. When the state does waive its sovereign immunity, i
t is only giving the plaintiff the chance to prove, if it can, that the
________________
24 162 SCRA 88.
660
660
defendant is liable.
The said article establishes a rule of liability, not suability. The government
may be held liable under this rule only if it first allows itself to be sued thr
ough any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special agent even
if he is so denominated, as in the case at bar. No less important, the said pro
vision appears to regulate only the relations of the local state with its inhabi
tants and, hence, applies only to the Philippine government and not to foreign g
overnments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special
counsel of the Office of the Sheriff Judge Advocate of Clark Air Base was a sub
mission by the United States government to its jurisdiction. As we noted in Repu
blic v. Purisima,25 express waiver of immunity cannot be made by a mere counsel
of the government but must be effected through a duly-enacted statute. Neither d
oes such answer come under the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018 wer
e acting in the discharge of their official functions, we hesitate to make the s
ame conclusion in G.R. No. 80258. The contradictory factual allegations in this
case deserve in our view a closer study of what actually happened to the plainti
ffs. The record is too meager to indicate if the defendants were really discharg
ing their official duties or had actually exceeded their authority when the inci
dent in question occurred. Lacking this information, this Court cannot directly
decide this case. The needed inquiry must first be made by the lower court so it
may assess and resolve the conflicting claims of the parties on the basis of th
e evidence that has yet to be presented at the trial. Only after it shall have d
etermined in what capacity the petitioners were acting at the time of the incide
nt in question will this Court determine, if still necessary, if the doctrine of
state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook in the Main
Club located at the U.S. Air Force Recreation Center, also known as the Open Mes
s Complex, at
________________
25 Supra.
661
661

John Hay Air Station. As manager of this complex, petitioner Lamachia is respons
ible for eleven diversified activities generating an annual income of $2 million
. Under his executive management are three service restaurants, a cafeteria, a b
akery, a Class VI store, a coffee and pantry shop, a main cashier cage, an admin
istrative office, and a decentralized warehouse which maintains a stock level of
$200,000.00 per month in resale items. He supervises 167 employees, one of whom
was Genove, with whom the United States government has concluded a collective b
argaining agreement.
From these circumstances, the Court can assume that the restaurant services offe
red at the John Hay Air Station partake of the nature of a business enterprise u
ndertaken by the United States government in its proprietary capacity. Such serv
ices are not extended to the American servicemen for free as a perquisite of mem
bership in the Armed Forces of the United States. Neither does it appear that th
ey are exclusively offered to these servicemen; on the contrary, it is well know
n that they are available to the general public as well, including the tourists
in Baguio City, many of whom make it a point to visit John Hay for this reason.
All persons availing themselves of this facility pay for the privilege like all
other customers as in ordinary restaurants. Although the prices are concededly r
easonable and relatively low, such services are undoubtedly operated for profit,
as a commercial and not a governmental activity.
The consequence of this finding is that the petitioners cannot invoke the doctri
ne of state immunity to justify the dismissal of the damage suit against them by
Genove. Such defense will not prosper even if it be established that they were
acting as agents of the United States when they investigated and later dismissed
Genove. For that matter, not even the United States government itself can claim
such immunity. The reason is that by entering into the employment contract with
Genove in the discharge of its proprietary functions, it impliedly divested its
elf of its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint against the
petitioners in the court below must still be dismissed. While suable, the petit
ioners are nevertheless not liable. It is obvious that the claim for damages can
not be
662
662
allowed on the strength of the evidence before us, which we have carefully exami
ned.
The dismissal of the private respondent was decided upon only after a thorough i
nvestigation where it was established beyond doubt that he had polluted the soup
stock with urine. The investigation, in fact, did not stop there. Despite the d
efinitive finding of Genove s guilt, the case was still referred to the board of a
rbitrators provided for in the collective bargaining agreement. This board unani
mously affirmed the findings of the investigators and recommended Genove s dismiss
al. There was nothing arbitrary about the proceedings. The petitioners acted qui
te properly in terminating the private respondent s employment for his unbelievabl
y nauseating act. It is surprising that he should still have the temerity to fil
e his complaint for damages after committing his utterly disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of the conc
essions granted by the United States government are commercial enterprises opera
ted by private persons. They are not agencies of the United States Armed Forces
nor are their facilities demandable as a matter of right by the American service
men. These establishments provide for the grooming needs of their customers and
offer not only the basic haircut and shave (as required in most military organiz
ations) but such other amenities as shampoo, massage, manicure and other similar
indulgences. And all for a fee. Interestingly, one of the concessionaires, priv
ate respondent Valencia, was even sent abroad to improve his tonsorial business,
presumably for the benefit of his customers. No less significantly, if not more
so, all the barbershop concessionaires are, under the terms of their contracts,
required to remit to the United States government fixed commissions in consider
ation of the exclusive concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the complain
t filed by the private respondents in the court below. The contracts in question
being decidedly commercial, the conclusion reached in the United States of Amer
ica v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the defendants as we h
ave done in G.R. No. 79470, except for the paucity of the record in the case at
hand. The evidence of the
663
663
alleged irregularity in the grant of the barbershop concessions is not before us
. This means that, as in G.R. No. 80258, the respondent court will have to recei
ve that evidence first, so it can later determine on the basis thereof if the pl
aintiffs are entitled to the relief they seek. Accordingly, this case must also
be remanded to the court below for further proceedings.
IV
There are a number of other cases now pending before us which also involve the q
uestion of the immunity of the United States from the jurisdiction of the Philip
pines. This is cause for regret, indeed, as they mar the traditional friendship
between two countries long allied in the cause of democracy. It is hoped that th
e so-called irritants in their relations will be resolved in a spirit of mutual ac
commodation and respect, without the inconvenience and asperity of litigation an
d always with justice to both parties.
WHEREFORE, after considering all the above premises, the Court hereby renders ju
dgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is dire
cted to proceed with the hearing and decision of Civil Case No. 4772. The tempor
ary restraining order dated December 11, 1986, is LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is D
ISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is DIS
MISSED. The temporary restraining order dated October 14, 1987, is made permanen
t.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is dire
cted to proceed with the hearing and decision of Civil Case No. 4996. The tempor
ary restraining order dated October 27, 1987, is LIFTED.
All without any pronouncement as to costs.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Corts, Grio-Aquino, Medialdea and Regalado,
JJ., concur.
In G.R. No. 76607, petition dismissed; G.R. No. 79470, petition granted; G.R. No
. 80018, petition granted; G.R. No. 80258,
664
664
Filinvest Land, Inc. vs. Court of Appeals
petition dismissed.
Note. A direct suit against the State cannot be maintained without its consent. (I
nsurance Company of North America vs. Republic, L-26532, August 30, 1967, 20 SCR
A 1159; Fireman s Fund Insurance Co. vs. Maersk Line Far East Service, L-27189, Ma
rch 28, 1969, 27 SCRA 519; Rizal Surety & Insurance Co. vs. Customs Arrastre Ser
vice, L-25709, April 25, 1969, 27 SCRA 1016.)
o0o
[No. 17958. February 27, 1922]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. LOL-LO and SAR
AW, defendants and appellants.
1.PIRACY; ARTICLES 153, 154, PENAL CODE; WHETHER IN FORCB. The provisions of the
Penal Code relating to piracy are not
20
20
PHILIPPINE REPORTS ANNOTATED
People vs. Lol-lo and Saraw
inconsistent with the corresponding provisions in the United States.
2.ID. ; ID. ; ID. Those provisions of the Penal Code dealing with the crime of pir
acy, notably articles 153 and 154, are still in force in the Philippines.
3.ID. ; ID.; ID. Article 153 of the Penal Code now reads as follows: "The crime of
piracy committed against citizens of the United States and citizens of the Phil
ippine Islands, or the subjects of another nation not at war with the United Sta
tes, shall be punished with a penalty ranging f rom cadena temporal to cadena pe
rpetua. If the crime be committed against nonbelligerent subjects of another nat
ion at war with the United States, it shall be punished with the penalty of pres
idio mayor."
4.ID. ; DEFINED. Piracy is robbery or forcible depredation on the high seas, witho
ut lawful authority and done animo furandi and in the spirit and intention of un
iversal hostility.
5.ID.; JURISDICTION. Piracy is a crime not against any particular State but agains
t all mankind. It may be punished in the competent tribunal of any country where
the offender may be found or into which he may be carried. The jurisdiction of
piracy unlike all other crimes has no territorial limits.
6.ID. ; ID. It does not matter that the crime was committed within the jurisdictio
nal 3-mile limit of a foreign state, "for those limits, though neutral to war, a
re not neutral to crimes." (U. S. vs, Furlong [1820], 5 Wheat., 184.)
7.ID. ; INSTANT CASE. One Moro who participated in the crime of piracy was sentenc
ed to death and another to life imprisonment.
8.PUBLIC LAW; CRIMINAL LAW; EFFECT OF TRANSFER OF TERRITORY. The political law of
the former sovereignty is necessarily changed. The municipal law in so far as i
t is consistent with the Constitution, the laws of the United States, or the cha
racteristics and institutions of the government, remains in force.
9.ID. ; ID. ; ID. Laws subsisting at the time of transfer, designed to secure good
order and peace in the community, which are strictly of a municipal character,
continue until by direct action of the new government they are altered or repeal
ed.
10.ID.; ID.; ID. Wherever "Spain" is mentioned in the Penal Code, it should be sub
stituted by the words "United States" and wherever "Spaniards" are mentioned, th
e word should be substituted by the expression, "citizens of the United States a
nd citizens of the Philippine Islands."
APPEAL from a judgment of the Court of First Instance of Zamboanga. Horrilleno,
J.
21
21
The facts are stated in the opinion of the court.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain
Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when gro
tesque brutes like Blackbeard flourished, seem far away in the pages of history
and romance. Nevertheless, the record before us tells a tale of twentieth centur
y piracy in the south seas, but stripped of all touches of chivalry or of genero
sity, so as to present a horrible case of rapine and near murder.
On or about June 30,1920, two boats left Matuta, a Dutch possession, for Peta, a
nother Dutch possession. In one of the boats was one individual, a Dutch subject
, and in the other boat eleven men, women, and children, likewise subjects of Ho
lland. After a number of days of navigation, at about 7 o'clock in the evening,
the second boat arrived between the Islands of Buang and Bukid in the Dutch East
Indies. There the boat was surrounded by six vintas manned by twenty-four Moros
all armed. The Moros first asked for food, but once on the Dutch boat, took for
themselves all of the cargo, attacked some of the men, and brutally violated tw
o of the women by methods too horrible to be described. All of the persons on th
e Dutch boat, with the exception of the two young women, were again placed on it
and holes were made in it, with the idea that it would submerge, although as a
matter of fact, these people, after eleven days of hardship and privation, were
succored. Taking the two women with them, and repeatedly violating them, the Mor
os finally arrived at Maruro, a Dutch possession. Two of the Moro marauders were
Lol-lo, who also raped one of the women, and Saraw, At Maruro the two women wer
e able to escape.
22
22
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, P
hilippine Islands. There they were arrested and were charged in the Court of Fir
st Instance of Suhn with the crime of piracy. A demurrer was interposed by couns
el de officio for the Moros, based on the grounds that the offense charged was n
ot within the jurisdiction of the Court of First Instance, nor of any court of t
he Philippine Islands, and that the facts did not constitute a public offense, u
nder the laws in force in the Philippine Islands. After the demurrer was overrul
ed by the trial judge, a trial was had, and a judgment was rendered finding the
two defendants guilty and sentencing each of them to life imprisonment (cadena p
erpetua), to return together with Kinawalang and Maulanis, defendants in another
case, to the offended parties, the thirty-nine sacks of coprax which had been r
obbed, or to indemnify them in the amount of 924 rupees, and to pay a one-half p
art of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney
de officio. By a process of elimination, however, certain questions can be quic
kly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy ar
e present. Piracy is, robbery or forcible depredation on the high seas, without
lawful authority and done animo furandi, and in the spirit and intention of univ
ersal hostility.
It cannot be contended with any degree of force as was done in the lower court a
nd as is again done in this court, that the Court of First Instance was without
jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a
crime not against any particular state but against all mankind. It may be punish
ed in the competent tribunal of any country where the offender may be found or i
nto which he may be carried. The jurisdiction of piracy unlike all other crimes
has no territorial limits. As it is against all so may it be punished by all. No
r does it matter that the crime was committed within the jurisdictional 3-mile l
imit of a foreign state, "f6r those limits, though neutral
23
23
to war, are not neutral to crimes." (U. S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision
f or the first time is whether or not the provisions of the Penal Code dealing
with the crime of piracy are still in force. Articles 153 to 156 of the Penal Co
de read as follows:
"ART. 153. The crime of piracy committed against Spaniards, or the subjects of a
nother nation not at war with Spain, shall be punished with a penalty ranging fr
om cadena temporal to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another nation at
war with Spain, it shall be punished with the penalty of presidio mayor.
"ART. 154. Those who commit the crimes referred to in the first paragraph of the
next preceding article shall suffer the penalty of cadena perpetua or death, an
d those who commit the crimes referred to in the second paragraph of the same ar
ticle, from cadena temporal to cadena perpetua:
"1. Whenever they have seized some vessel by boarding or firing upon the same.
"2. Whenever the crime is accompanied by murder, homicide, or by any of the phys
ical injuries specified in articles f our hundred and f ourteen and f our hundre
d and fifteen and in paragraphs one and two of article four hundred and sixteen.
"3. Whenever it is accompanied by any of the offenses against chastity specified
in Chapter II, Title IX, of this book.
"4. Whenever the pirates have abandoned any persons without means of saving them
selves.
"5. In every case, the captain or skipper of the pirates.
"ART. 155. With respect to the provisions of this title, as well as all others o
f this code, when Spain is mentioned it shall be understood as including any par
t of the national territory.
"ART. 156. For the purpose of applying the provisions of this code, every person
, who, according to the Constitu24
24
tion of the Monarchy, has the status of a Spaniard shall be considered as such."
The general rules of public law recognized and acted on by the United States rel
ating to the 'effect of a transfer of territory from another State to the United
States are well-known. The political law of the former sovereignty is necessari
ly changed. The municipal law in so far as it is consistent with the Constitutio
n, the laws of the United States, or the characteristics and institutions of the
government, remains in force. As a corollary to the main rules, laws subsisting
at the time of transfer, designed to secure good order and peace in the communi
ty, which are strictly of a municipal character, continue until by direct action
of the new government they are altered or repealed. (Chicago, Rock Island, etc.
, R. Co. vs. McGlinn [1885], 114 U. S., 542.)
These principles of the public law were given specific application to the Philip
pines by the InstructioHs of PresidentMcKinley of May 19, 1898, to General Wesle
y Merritt, the Commanding General of the Army of Occupation in the Philippines,
when he said:
"Though the powers of the military occupant are absolute and supreme, and immedi
ately operate upon the political condition of the inhabitants, the municipal law
s of the conquered territory, such as affect private rights of person and proper
ty, and provide for the punishment of crime, are considered as continuing in for
ce, so far as they are compatible with the new order of things, until they are s
uspended or superseded by the occupying belligerent; and in practice they are no
t usually abrogated, but are allowed to remain in force, and to be administered
by the ordinary tribunals, substantially as they were before the occupation. Thi
s enlightened practice is, so far as possible, to be adhered to on the present o
ccasion." (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also Ge
neral Merritt's Proclamation of August 14, 1898.) ,
It cannot admit of doubt that the articles of the Spanish Penal Code dealing wit
h piracy were meant to include the
25
25
Philippine Islands. Article 156 of the Penal Code in relation to article 1 of th
e Constitution of the Spanish Monarchy, would also make the provisions of the Co
de applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing a
s piracy by the civil law, and he has never been disputed. The specific provisio
ns of the Penal Code are similar in tenor to statutory provisions elsewhere and
to the concepts of the public law. This must necessarily be so, considering that
the Penal Code finds its inspiration in this respect in the Novelas, the Partid
as, and the Novisima, Recopilacion.
The Constitution of the United States declares that the Congress shall have the
power to define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations. (U. S. Const. Art. I, sec. 8, cl. 10.) The
Congress, in putting on the statute books the necessary ancillary legislation,
provided that whoever, on the high seas, commits the crime of piracy as defined
by the law of nations, and is afterwards brought into or found in the United Sta
tes, shall be imprisoned for life. (U. S. Crim. Code, sec. 290; penalty formerly
death: U. S. Rev. Stat., sec. 5368.) The framers of the Constitution and the me
mbers of Congress were content to let a definition of piracy rest on its univers
al conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippi
nes relating to piracy are not inconsistent with the corresponding provisions in
force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States.
A logical construction of articles of the Penal Code, like the articles dealing
with the crime of piracy, would be that wherever "Spain" is mentioned, it shoul
d be substituted by the words "United States" and wherever "Spaniards" are menti
oned, the word should be substituted by the expression "citizens of the United S
tates and citizens of the Philippine Islands." Somewhat similar reasoning led th
is court in the case of United States vs.
26
26
Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Pe
nal Code a limited meaning, which would no longer comprehend all religious, mili
tary, and civil officers, but only public officers in the Government of the Phil
ippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read
as f ollows:
"The crime of piracy committed against citizens of the United States and citizen
s of the Philippine Islands, or the subjects of another nation not at war with t
he United States, shall be punished with a penalty ranging from cadena temporal
to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another nation at
war with the United States, it shall be punished with the penalty of presidio ma
yor."
We hold those provisions of the Penal Code dealing with the crime of piracy, not
ably articles 153 and 154, to be still in force in the Philippines.
The crime f alls under the first paragraph of article 153 of the Penal Code in r
elation to article 154. There are present at least two of the circumstances name
d in the last cited article as authorizing either cadena perpetua or death. The
crime of piracy was accompanied by (1) an offense against chastity and (2) the a
bandonment of persons without apparent means of saving themselves. It is, theref
ore, only necessary f or us to determine as to whether the penalty of cadena per
petua or death should be imposed. In this connection, the trial court, finding p
resent the one aggravating circumstance of nocturnity, and compensating the same
by the one mitigating circumstance of lack of instruction provided by article 1
1, as amended, of the Penal Code, sentenced the accused to lif e imprisonment. A
t least three aggravating circumstances, that the wrong done in the commission o
f the crime was deliberately augmented by causing other wrongs not necessary f o
r its commission, that advantage was taken of superior strength, and that means
were employed which added ignominy to the natural effects of the act, must also
be taken into consideration

27
VOL. 43, MARCH 1, 1922
27
L. S. Moon & Co. vs. Harrison
in fixing the penalty. Considering, therefore, the number and importance of the
qualifying and aggravating circumstances here present, which cannot be offset by
the sole mitigating circumstance of lack of instruction, and the horrible natur
e of the crime committed, it becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of 'the imp
osition of the death penalty upon the defendant and appellant Lol-lo (the accuse
d who raped one of the women), but is not unanimous with regard to the defendant
and appellant Saraw, since one member of the court, Mr. Justice Romualdez, regi
sters his nonconformity. In accordance with the provisions of Act No. 2726, it r
esults, therefore, that the judgment of the trial court as to the defendant and
appellant Saraw is affirmed, and is reversed as to the defendant and appellant L
ol-lo, who is found guilty of the crime of piracy and is sentenced therefor to b
e hung until dead, at such time and place as shall be fixed by the judge of firs
t instance of the Twenty-sixth Judicial District. The two appellants together wi
th Kinawalang and Maulanis, defendants in another case, shall indemnify jointly
and severally the offended parties in the eQuivalent of 924 rupees, and shall pa
y a one-half part of the costs of both instances. So ordered.
Araullo, C. J., Johnson, Avancea, Villamor, Ostrand, Johns, and Romualdez, J
J., concur.
Judgment modified.
____________
No. L-35645. May 22, 1985.*

UNITED STATES OF AMERICA, CAPT. JAMES E, GALLOWAY, WILLIAM I. COLLINS and ROBERT
GOHIER, petitioners, vs. HON. V.M. RUIZ, Presiding Judge of Branch XV, Court of
First Instance of Rizal and ELIGIO DE GUZMAN & CO., INC., respondents.
Actions; Public Corporations; Constitutional Law; Contracts; In suits against a
foreign government, a distinction must he made between acts jure imperil and act
s jure gestionis. As to the former, the State immunity prevails. The traditional r
ule of State immunity exempts a State from being sued in the courts of another S
tate without its consent or waiver. This rule is a necessary consequence of the
principles of independence and equality of States. However, the rules of Interna
tional Law are not petrified; they are constantly developing and evolving. And b
ecause the activities of states have multiplied, it has been necessary to distin
guish them between sovereign and governmental acts (jure imperii) and private, com
mercial and proprietary acts (jure gestionis). The result is that State immunity
now extends only to acts jure imperii. The restrictive application of State imm
unity is now the rule in the United States, the United Kingdom and other states
in western Europe. (See Coquia and Defensor-Santiago, Public International Law,
pp. 207-209 [1984]).
Judgments; An obiter has no value as an imperative authority. It can thus be seen
that the statement in respect of the waiver of State immunity from suit was pure
ly gratuitous and, therefore, obiter so that it has no value as an imperative au
thority.
Actions; Public Corporations; Constitutional Law; Contracts; States may be sued
only when the proceedings arise out of commercial transactions. Infrastructure p
rojects of U.S. Naval Base in Subic involve governmental functions. The restrictiv
e application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to t
he level of an individual and can thus be deemed to have tacitly given its conse
nt to be sued only when it enters into
_______________
* EN BANC.
488
488
United States of America vs. Ruiz
business contracts, It does not apply where the contract relates to the exercise
of its sovereign functions. In this case the projects are an integral part of t
he naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; the
y are not utilized for nor dedicated to commercial or business purposes.
MAKASIAR, J., dissenting:
Actions; Public Corporations; Contracts; After U.S. Naval authorities accepted t
he bid for repair of the wharves at Subic Bay Naval Base, it waived the mantle o
f State immunity from suits. When the U.S. Government, through its agency at Subic
Bay, confirmed the acceptance of a bid of a private company for the repair of w
harves or shoreline in the Subic Bay area, it is deemed to have entered into a c
ontract and thus waived the mantle of sovereign immunity from suit and descended
to the level of the ordinary citizen. Its consent to be sued, therefore, is imp
lied from its act of entering into a contract (Santos vs. Santos, 92 Phil. 281,
284).
Same; Same; Same; Same; Military Bases; Treaties; The majority opinion seems to
mock the joint statement of Pres. Marcos and Vice-President Mondale that Philipp
ine sovereignty extends to U.S. bases here. The majority opinion seems to mock the
provision of paragraph 1 of the joint statement of President Marcos and Vice-Pr
esident Mondale of the United States dated May 4, 1978 that the United States reaffirms that Philippine sovereignty extends over the bases and that Its base sha
ll be under the command of a Philippine Base Commander, which is supposed to unde
rscore the joint Communique of President Marcos and U.S. President Ford of Decem
ber 7, 1975, under which they affirm that sovereign equality, territorial integri
ty and political independence of all States are fundamental principles which bot
h countries scrupulously respect; and that they confirm that mutual respect for t
he dignity of each nation shall characterize their friendship as well as the all
iance between their two countries.
PETITION to review the orders of the Court of First Instance of Rizal, Br. XV. R
uiz, J.
Sycip, Salazar, Luna & Manalo & Feliciano Law Office for petitioners.
489
VOL. 136, MAY 22, 1985
489
for respondents.
ABAD SANTOS, J.:
This is a petition to review, set aside certain orders and restrain the responde
nt judge from trying Civil Case No. 779-M of the defunct Court of First Instance
of Rizal.
The factual background is as follows:
At times material to this case, the United States of America had a naval base in
Subic, Zambales. The base was one of those provided in the Military Bases Agree
ment between the Philippines and the United States.
Sometime in May, 1972, the United States invited the submission of bids for the
following projects:
1. Repair fender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philip
pines.
2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreli
ne revetment, NAV-BASE Subic; and repair to Leyte Wharf approach, NAV-BASE Subic
Bay, Philippines.
Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Sub
sequent thereto, the company received from the United States two telegrams reque
sting it to confirm its price proposals and for the name of its bonding company.
The company complied with the requests. [In its complaint, the company alleges
that the United States had accepted its bids because A request to confirm a price
proposal confirms the acceptance of a bid pursuant to defendant United States bi
dding practices. (Rollo, p. 30.) The truth of this allegation has not been tested
because the case has not reached the trial stage.]
In June, 1972, the company received a letter which was signed by William I. Coll
ins, Director, Contracts Division, Naval Facilities Engineering Command, Southwe
st Pacific, Department of the Navy of the United States, who is one of the 489
490
490
petitioners herein. The letter said that the company did not qualify to receive
an award for the projects because of its previous unsatisfactory performance rat
ing on a repair contract for the sea wall at the boat landings of the U.S. Naval
Station in Subic Bay. The letter further said that the projects had been awarde
d to third parties.
In the abovementioned Civil Case No. 779-M, the company sued the United States o
f America and Messrs. James E. Galloway, William I. Collins and Robert Gohier al
l members of the Engineering Command of the (U.S. Navy. The complaint in to orde
r the defendants to allow the plaintiff to perform the work on the projects and,
in the event that specific performance was no longer possible, to order the def
endants to pay damages. The company also asked for the issuance of a writ of pre
liminary injunction to restrain the defendants from entering into contracts with
third parties for work on the projects.
The defendants entered their special appearance for the purpose only of questioni
ng the jurisdiction of this court over the subject matter of the complaint and t
he persons of defendants, the subject matter of the complaint being acts and omi
ssions of the individual defendants as agents of defendant United States of Amer
ica, a foreign sovereign which has not given her consent to this suit or any oth
er suit for the causes of action asserted in the complaint. (Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss the complaint which includ
ed an opposition to the issuance of the writ of preliminary injunction. The comp
any opposed the motion. The trial court denied the motion and issued the writ. T
he defendants moved twice to reconsider but to no avail. Hence the instant petit
ion which seeks to restrain perpetually the proceedings in Civil Case No. 779-M
for lack of jurisdiction on the part of the trial court.
The petition is highly impressed with merit.
The traditional rule of State immunity exempts a State from being sued in the co
urts of another State without its consent or waiver. This rule is a necessary co
nsequence of the principles of independence and equality of States. However, the
rules of International Law are not petrified; they are constantly developing an
d evolving. And because the activities of states
491
VOL. 136, MAY 22, 1985
491
have multiplied, it has been necessary to distinguish them between sovereign and g
overnmental acts (jure imperii) and private, commercial and proprietary acts (ju
re gestionis). The result is that State immunity now extends only to acts jure i
mperii. The restrictive application of State immunity is now the rule in the Uni
ted States, the United Kingdom and other states in western Europe. (See Coquia a
nd Defensor-Santiago, Public International Law, pp. 207-209 [1984].)
The respondent judge recognized the restrictive doctrine of State immunity when
he said in his Order denying the defendants (now petitioners) motion: A distinctio
n should be made between a strictly governmental function of the sovereign state
from its private, proprietary or non-governmental acts. (Rollo, p. 20.) However,
the respondent judge also said: It is the Court s considered opinion that entering
into a contract for the repair of wharves or shoreline is certainly not a gover
nmental function altho it may partake of a public nature or character. As aptly
pointed out by plaintiff s counsel in his reply citing the ruling in the case of L
yons, Inc., [104 Phil. 594 (1958)], and which this Court quotes with approval, v
iz.:
It is however contended that when a sovereign state enters into a contract with a
private person, the state can be sued upon the theory that it has descended to
the level of an individual from which it can be implied that it has given its co
nsent to be sued under the contract. x x x.
x x x
x x x
x x x
We agree to the above contention, and considering that the United States governme
nt, through its agency at Subic Bay, entered into a contract with appellant for
stevedoring and miscellaneous labor services within the Subic Bay Area, a U.S. N
aval Reservation, it is evident that it can bring an action before our courts fo
r any contractual liability that that political entity may assume under the cont
ract. The trial court, therefore, has jurisdiction to entertain this case x x x.
(Rollo, pp. 20-21.)
The reliance placed on Lyons by the respondent judge is misplaced for the follow
ing reasons:
In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff brought
suit in the Court of First Instance of
492
492
Manila to collect several sums of money on account of a contract between plainti
ff and defendant. The defendant filed a motion to dismiss on the ground that the
court had no jurisdiction over defendant and over the subject matter of the act
ion. The court granted the motion on the grounds that: (a) it had no jurisdictio
n over the defendant who did not give its consent to the suit; and (b) plaintiff
failed to exhaust the administrative remedies provided in the contract. The ord
er of dismissal was elevated to this Court for review.
In sustaining the action of the lower court, this Court said:
It appearing in the complaint that appellant has not complied with the procedure
laid down in Article XXI of the contract regarding the prosecution of its claim
against the United States Government, or, stated differently, it has failed to f
irst exhaust its adndnistrative remedies against said Government, the lower cour
t acted properly in dismissing this case. (At p. 598.)
It can thus be seen that the statement in respect of the waiver of State immunit
y from suit was purely gratuitous and, therefore, obiter so that it has no value
as an imperative authority.
dedicated to commercial or business purposes.
That the correct test for the application of State immunity is not the conclusio
n of a contract by a State but the legal nature of the act is shown in Syquia vs
. Lopez, 84 Phil. 312 (1949). In that case the plaintiffs leased three apartment
buildings to the United States of America for the use of its
493
VOL. 136, MAY 22, 1985
493
military officials. The plaintiffs sued to recover possession of the premises on
the ground that the term of the leases had expired. They also asked for increas
ed rentals until the apartments shall have been vacated.
The defendants who were armed forces officers of the United States moved to dism
iss the suit for lack of jurisdiction on the part of the court. The Municipal Co
urt of Manila granted the motion to dismiss; sustained by the Court of First Ins
tance, the plaintiffs went to this Court for review on certiorari. In denying th
e petition, this Court said:
On the basis of the foregoing considerations we are of the belief and we hold tha
t the real party defendant in interest is the Government of the United States of
America; that any judgment for back or increased rentals or damages will have t
o be paid not by defendants Moore and Tillman and their 64 co-defendants but by
the said U.S. Government. On the basis of the ruling in the case of Land vs. Dol
lar already cited, and on what we have already stated, the present action must b
e considered as one against the U.S. Government. It is clear that the courts of
the Philippines including the Municipal Court of Manila have no jurisdiction ove
r the present case for unlawful detainer. The question of lack of jurisdiction w
as raised and interposed at the very beginning of the action. The U.S. Governmen
t has not given its consent to the filing of this suit which is essentially agai
nst her, though not in name. Moreover, this is not only a case of a citizen fili
ng a suit against his own Government without the latter s consent but it is of a c
itizen filing an action against a foreign government without said government s con
sent, which renders more obvious the lack of jurisdiction of the courts of his c
ountry. The principles of law behind this rule are so elementary and of such gen
eral acceptance that we deem it unnecessary to cite authorities in support there
of. (At p. 323.)
In Syquia, the United States concluded contracts with private individuals but th
e contracts notwithstanding the United States was not deemed to have given or wa
ived its consent to be sued for the reason that the contracts were for jure impe
rii and not for jure gestionis.
WHEREFORE, the petition is granted; the questioned orders of the respondent judg
e are set aside and Civil Case No. 779-M is dismissed. Costs against the private
respondent.
494
494
SO ORDERED.
Teehankee, Aquino, Concepcion, Jr., Melencio-Herrera, Plana,** Escolin, Rel
ova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
Fernando, C.J., did not take part.
Makasiar, J., see dissent.
MAKASIAR, J., dissents:
The petition should be dismissed and the proceedings in Civil Case No. 779-M in
the defunct CFI (now RTC) of Rizal be allowed to continue therein.
In the case of Lyons vs. the United States of America (104 Phil. 593), where the
contract entered into between the plaintiff (Harry Lyons, Inc.) and the defenda
nt (U.S. Government) involved stevedoring and labor services within the Subic Ba
y area, this Court further stated that inasmuch as x x x the United States Govern
ment, through its agency at Subic Bay, entered into a contract with appellant fo
r stevedoring and miscellaneous labor services within the Subic Bay area, a U.S.
Navy Reservation, it is evident that it can bring an action before our courts f
or any contractual liability that that political entity may assume under the con
tract.
When the U.S. Government, through its agency at Subic Bay, confirmed the accepta
nce of a bid of a private company for the repair of wharves or shoreline in the
Subic Bay area, it is deemed to have entered into a contract and thus waived the
mantle of sovereign immunity from suit and descended to the level of the ordina
ry citizen. Its consent to be sued, therefore, is implied from its act of enteri
ng into a contract (Santos vs. Santos, 92 Phil. 281, 284).
Justice and fairness dictate that a foreign government that commits a breach of
its contractual obligation in the case at bar by the unilateral cancellation of th
e award for the project by the United States government, through its agency at S
ubic Bay should not be allowed to take undue advantage of a par_______________
** He signed before he left.
495
VOL. 136, MAY 22, 1985
495
ty who may have legitimate claims against it by seeking refuge behind the shield
of non-suability. A contrary view would render a Filipino citizen, as in the in
stant case, helpless and without redress in his own country for violation of his
rights committed by the agents of the foreign government professing to act in i
ts name.
Appropriate are the words of Justice Perfecto in his dissenting opinion in Syqui
a vs. Almeda Lopez, 84 Phil. 312, 325:
Although, generally, foreign governments are beyond the jurisdiction of domestic
courts of justice, such rule is inapplicable to cases in which the foreign gover
nment enters into private contracts with the citizens of the court s jurisdiction.
A contrary view would simply run against all principles of decency and violativ
e of all tenets of morals.
Moral principles and principles of justice are as valid and applicable as well wi
th regard to private individuals as with regard to governments either domestic o
r foreign. Once a foreign government enters into a private contract with the pri
vate citizens of another country, such foreign government cannot shield its nonperformance or contravention of the terms of the contract under the cloak of non
jurisdiction. To place such foreign government beyond the jurisdition of the do
mestic courts is to give approval to the execution of unilateral contracts, grap
hically described in Spanish as Contratos leoninos, because one party gets the lio
n s share to the detriment of the other. To give validity to such contract is to s
anctify bad faith, deceit, fraud. We prefer to adhere to the thesis that all par
ties in a private contract, including governments and the most powerful of them,
are amenable to law, and that such contracts are enforceable through the help o
f the courts of justice with jurisdiction to take cognizance of any violation of
such contracts if the same had been entered into only by private individuals.
Constant resort by a foreign state or its agents to the doctrine of State immuni
ty in this jurisdiction impinges unduly upon our sovereignty and dignity as a na
tion, Its application will particularly discourage Filipino or domestic contract
ors from transacting business and entering into contracts with United States aut
horities or facilities in the Philippines whether naval, air or ground forces becaus
e the difficulty, if not impossibility, of enforcing a validly executed
496
496
contract and of seeking judicial remedy in our own courts for breaches of contra
ctual obligation committed by agents of the United States government, always loo
ms large, thereby hampering the growth of Filipino enterprises and creating a vi
rtual monopoly in our own country by United States contractors of contracts for
services or supplies with the various U.S. offices and agencies operating in the
Philippines.
The sanctity of upholding agreements freely entered into by the parties cannot b
e over emphasized. Whether the parties are nations or private individuals, it is
to be reasonably assumed and expected that the undertakings in the contract wil
l be complied with in good faith.
One glaring fact of modern day civilization is that a big and powerful nation, l
ike the United States of America, can always overwhelm small and weak nations. T
he declaration in the United Nations Charter that its member states are equal an
d sovereign, becomes hollow and meaningless because big nations wielding economi
c and military superiority impose upon and dictate to small nations, subverting
their sovereignty and dignity as nations. Thus, more often than not, when U.S. i
nterest clashes with the interest of small nations, the American governmental ag
encies or its citizens invoke principles of international law for their own bene
fit.
In the case at bar, the efficacy of the contract between the U.S. Naval authorit
ies at Subic Bay on one hand, and herein private respondent on the other, was ho
nored more in the breach than in the compliance. The opinion of the majority wil
l certainly open the floodgates of more violations of contractual obligations, A
merican authorities or any foreign government in the Philippines for that matter
, dealing with the citizens of this country, can conveniently seek protective co
ver under the majority opinion. The result is disastrous to the Philippines.
This opinion of the majority manifests a neo-colonial mentality. It fosters econ
omic imperialism and foreign political ascendancy in our Republic.
The doctrine of government immunity from suit cannot and should not serve as an
instrument for perpetrating an injustice on a citizen (Amigable vs. Cuenca, L-26
400, February 29, 1972, 43 SCRA 360; Ministerio vs. Court of First Instance, L-3
1635,
497
VOL. 136, MAY 22, 1985
497
August 31, 1971, 40 SCRA 464).
Under the doctrine of implied waiver of its non-suability, the United States gov
ernment, through its naval authorities at Subic Bay, should be held amenable to
lawsuits in our country like any other juristic person.
The invocation by the petitioner United States of America is not in accord with
paragraph 3 of Article III of the original RP-US Military Bases Agreement of Mar
ch 14, 1947, which states that in the exercise of the above-mentioned rights, pow
ers and authority, the United States agrees that the powers granted to it will n
ot be used unreasonably. x x x (italics supplied).
Nor is such posture of the petitioners herein in harmony with the amendment date
d May 27, 1968 to the aforesaid RP-US Military Bases Agreement, which recognizes
the need to promote and maintain sound employment practices which will assure eq
uality of treatment of all employees x x x and continuing favorable employer-emp
loyee relations x x x and (B)elieving that an agreement will be mutually beneficia
l and will strengthen the democratic institutions cherished by both Governments,
x x x the United States Government agrees to accord preferential employment of
Filipino citizens in the Bases, thus (1) the U.S. Forces in the Philippines shal
l fill the needs for civilian employment by employing Filipino citizens, etc. (Pa
r. 1, Art. I of the Amendment of May 27, 1968).
Neither does the invocation by petitioners of state immunity from suit express f
idelity to paragraph 1 of Article IV of the aforesaid amendment of May 27, 1968
which directs that contractors and concessionaires performing work for the U.S. A
rmed Forces shall be required by their contract or concession agreements to comp
ly with all applicable Philippine labor laws and regulations, even though paragra
ph 2 thereof affirms that nothing in this Agreement shall imply any waiver by eit
her of the two Governments of such immunity under International law.
Reliance by petitioners on the non-suability of the United States Government bef
ore the local courts, actually clashes with No. III on respect for Philippine la
w of the Memorandum
498
498
of Agreement signed on January 7, 1979, also amending RP-US Military Bases Agree
ment, which stresses that it is the duty of members of the United States Forces,
the civilian component and their dependents, to respect the laws of the Republic
of the Philippines and to abstain from any activity inconsistent with the spiri
t of the Military Bases Agreement and, in particular, from any political activit
y in the Philippines. The United States shall take all measures within its autho
rity to insure that they adhere to them (italics supplied).
The foregoing duty imposed by the amendment to the Agreement is further emphasiz
ed by No. IV on the economic and social improvement of areas surrounding the bas
es, which directs that moreover, the United States Forces shall procure goods and
services in the Philippines to the maximum extent feasible (italics supplied).
Under No. VI on labor and taxation of the said amendment of January 6, 1979 in c
onnection with the discussions on possible revisions or alterations of the Agree
ment of May 27, 1968, the discussions shall be conducted on the basis of the prin
ciples of equality of treatment, the right to organize, and bargain collectively
, and respect for the sovereignty of the Republic of the Philippines (italics sup
plied)
The majority opinion seems to mock the provision of paragraph 1 of the joint sta
tement of President Marcos and Vice-President Mondale of the United States dated
May 4, 1978 that the United States re-affirms that Philippine sovereignty extend
s over the bases and that Its base shall be under the command of a Philippine Ba
se Commander, which is supposed to underscore the joint Communique of President M
arcos and U.S. President Ford of December 7, 1975, under which they affirm that s
overeign equality, territorial integrity and political independence of all State
s are fundamental principles which both countries scrupulously respect; and that
they confirm that mutual respect for the dignity of each nation shall characteri
ze their friendship as well as the alliance between their two countries.
The majority opinion negates the statement on the delineation of the powers, dut
ies and responsibilities of both the
499
VOL. 136, MAY 22, 1985
499
Philippine and American Base Commanders that in the performance of their duties,
the Philippine Base Commander and the American Base Commander shall be guided by
full respect for Philippine sovereignty on the one hand and the assurance of un
hampered U.S. military operations on the other hand; and that they shall promote c
ooperation, understanding and harmonious relations within the Base and with the
general public in the proximate vicinity thereof (par. 2 & par. 3 of the Annex co
vered by the exchange of notes, January 7, 1979, between Ambassador Richard W, M
urphy and Minister of Foreign Affairs Carlos P. Romulo, italics supplied).
Petition granted; orders set aside.
Notes. The principle that the state or its government cannot be sued without its c
onsent has its root in the juridical and practical notion that the state can do
no wrong. Demandable and enforceable obligations which may be the subject of jud
icial action come into being either by law, contract, quasi-contracts, acts or o
missions punishable by law, acts which do not constitute or amount to a crime or
a misdemeanor known at common law as torts and in civil law as culpa aquiliana
or extra contractual. An obligation or liability of the state created by statute
is enforceable against the officer or agent charged with the duty to execute th
e law. If there should be anything demandable which had been paid or delivered t
o or collected by officers or agents of the state without the authority of law,
the action would not be against the state but against the responsible officers o
r agents who received what was not due the state or made the unauthorized collec
tion, Punishable acts or omissions committed by officers or agents of the state
are crimes and violations of law are perpetrated by such officers or agents and
not by the state. The same postulate may be applied to torts committed by office
rs or agents of the State. Nevertheless, if, where and when the state or its gov
ernment enters into a contract, through its officers or agents, in furtherance o
f a legitimate aim and purpose and pursuant to constitutional or legislative aut
hority, whereby mutual or reciprocal benefits accrue and rights and obligations
arise therefrom, and if the law granting the authority to enter into
500
500
such contract does not provide for or name the officer against whom action may b
e brought in the event of a breach thereof, the state itself may be sued even wi
thout its consent, because by entering into a contract the sovereign state has d
escended to the level of the citizen and its consent to be sued is implied from
the very act of entering into such contract. If the dignity of the state, the sa
credness of the institution, the respect for the government are to be preserved
and the dragging of its name in a suit to be prevented, the legislative departme
nt should name the officer or agent against whom the action may be brought in th
e event of breach of the contract entered into under its name and authority. And
the omission or failure of the legislative department to do so is no obstacle o
r impediment for an individual or citizen, who is aggrieved by the breach of the
contract, to bring an action against the state itself for the reasons already a
dverted to, to wit: the descent of the sovereign state to the level of the indiv
idual or citizen with whom it entered into a contract and its consent to be sued
implied from the act of entering into such contract. (See Santos vs. Santos, L4699, Nov. 26, 1952; Moreno vs. Macadaeg, 7 SCRA 700; Ruiz vs. Cabahug, 54 O.G.
351.)
The Court of Claims of the United States made a similar ruling to the effect tha
t, when the United States, through their duly authorized agents and officers, ent
er into contract arrangements and stipulations with their citizens, in matters p
ertaining to the public service, and in the mode provided by law, they, pro hoc
vice relinquish their sovereign charter and subject themselves to those rules of
justice and right which all just governments administer and enforce between man
and man. (Mann vs. United States, 3 Ct. Cl. 404, 411; Wentworth vs. United State
s, 5 Ct. Cl. 302.)
o0o
501
VOL. 136, MAY 22, 1985
501
People vs. Panuelos
G.R. No. 101949. December 1, 1994.*

THE HOLY SEE, petitioner, vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Ju
dge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERP
RISES, INC., respondents.
Remedial Law; Motion to Dismiss; Appeal; An order denying a motion to dismiss is
not reviewable by the appellate courts except when it is clear in the records t
hat the trial court has no alternative but to dismiss the complaint. A preliminary
matter to be threshed out is the procedural issue of whether the petition for c
ertiorari under Rule 65 of the Revised Rules of Court can be availed of to quest
ion the order denying petitioner s motion to dismiss. The general rule is that an
order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing b
efore the trial court. But the general rule admits of exceptions, and one of the
se is when it is very clear in the records that the trial court has no alternati
ve but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA
582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]). In such a
case, it would be a sheer waste of time and energy to require the parties to und
ergo the rigors of a trial.
Public International Law; Diplomatic Immunity; Non-suability; Courts and Practic
es; A state or international agency requests the Foreign Office of the state whe
re it is sued to convey to the court that it is entitled to immunity. In Public In
ternational Law, when a state or international agency wishes to plead sovereign

or diplomatic immunity in a foreign court, it requests the Foreign Office of the
state where it is sued to convey to the court that said defendant is entitled t
o immunity.
Same; Same; Same; In the Philippines, the practice is for the government soverei
gn or the international organization to first secure an executive endorsement of
its claim of sovereign or diplomatic immunity. In the Philippines, the practice i
s for the foreign government or the international organization to first secure a
n executive endorsement of its claim of sovereign or diplomatic immunity. But ho
w the Philippine Foreign Office conveys its endorsement to the courts varies. In
International Catholic Migration Commission v. Calleja, 190 SCRA
_______________
* EN BANC.
525
VOL. 238, DECEMBER 1, 1994
525
Holy See, The vs. Rosario, Jr.
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the latter that the respondent-empl
oyer could not be sued because it enjoyed diplomatic immunity. In World Health O
rganization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent
the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974),
the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor General e
mbodied the suggestion in a Manifestation and Memorandum as amicus curiae.
Same; Same; Same. In the case at bench, the Department of Foreign Affairs, through
the Office of Legal Affairs moved with this Court to be allowed to intervene on
the side of petitioner. The Court allowed the said Department to file its memor
andum in support of petitioner s claim of sovereign immunity.
Same; Same; Same; Statehood; In 1929, through the Lateran Treaty, Italy recogniz
ed the exclusive dominion and sovereign jurisdiction of the Holy See over the Va
tican City. In 1929, Italy and the Holy See entered into the Lateran Treaty, where
Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy
See over the Vatican City. It also recognized the right of the Holy See to recei
ve foreign diplomats, to send its own diplomats to foreign countries, and to ent
er into treaties according to International Law (Garcia, Questions and Problems
In International Law, Public and Private 81 [1948]).
Same; Same; Same; Same; The Lateran Treaty established the statehood of the Vati
can City. The Lateran Treaty established the statehood of the Vatican City for the
purpose of assuring to the Holy See absolute and visible independence and of gua
ranteeing to it indisputable sovereignty also in the field of international rela
tions (O Connell, I International Law 311 [1965]).
Same; Same; Same; Same; Despite its size and object, the Vatican City has an ind
ependent government of its own, with the Pope, who is also head of the Roman Cat
holic Church, as the Holy See or Head of State, in conformity with its tradition
s, and the demands of its mission in the world. The Vatican City fits into none of
the established categories of states, and the attribution to it of sovereignty mu
st be made in a sense different from that in which it is applied to other states
(Fenwick, International Law 124-125 [1948]; Cruz, International Law
526
526
37 [1991]). In a community of national states, the Vatican City represents an en
tity organized not for political but for ecclesiastical purposes and internation
al objects. Despite its size and object, the Vatican City has an independent gov
ernment of its own, with the Pope, who is also head of the Roman Catholic Church
, as the Holy See or Head of State, in conformity with its traditions, and the d
emands of its mission in the world. Indeed, the world-wide interests and activit
ies of the Vatican City are such as to make it in a sense an international state (
Fenwick, supra. 125; Kelsen, Principles of International Law 160 [1956]).
Same; Same; Same; Same; Same; It is the Holy See that is the international perso
n. Inasmuch as the Pope prefers to conduct foreign relations and enter into transa
ctions as the Holy See and not in the name of the Vatican City, one can conclude
that in the Pope s own view, it is the Holy See that is the international person.
Same; Same; Same; The Holy See, through its Ambassador, the Papal Nuncio, has ha
d diplomatic representations with the Philippine government since 1957. The Republ
ic of the Philippines has accorded the Holy See the status of a foreign sovereig
n. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic re
presentations with the Philippine government since 1957 (Rollo, p. 87). This app
ears to be the universal practice in international relations.
Same; Same; Same; The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and maintenance of it
s diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations. Lot 5-A was acquired by petitioner as a donation from the Archdiocese o
f Manila. The donation was made not for commercial purpose, but for the use of p
etitioner to construct thereon the official place of residence of the Papal Nunc
io. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic m
ission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Art
s. 20-22). This treaty was concurred in by the Philippine Senate and entered int
o force in the Philippines on November 15, 1965.
Same; Same; Same; Petitioner did not sell Lot 5-A for profit or gain. It merely
wanted to dispose off the same because the squatters living thereon made it almo
st impossible for petitioner to use it for the purpose of the donation. The decisi
on to transfer the property and the subsequent disposal thereof are likewise clo
thed with a governmental character. Petitioner did not sell Lot 5-A for profit o
r gain. It merely
527
527
wanted to dispose off the same because the squatters living thereon made it almo
st impossible for petitioner to use it for the purpose of the donation. The fact
that squatters have occupied and are still occupying the lot, and that they stu
bbornly refuse to leave the premises, has been admitted by private respondent in
its complaint (Rollo, pp. 26, 27).
Same; Same; Same; The issue of Petitioner s non-suability can be determined by the
trial court without going to trial in the light of the pleadings, particularly
the admission of the private respondent. The issue of petitioner s non-suability can
be determined by the trial court without going to trial in the light of the ple
adings, particularly the admission of private respondent. Besides, the privilege
of sovereign immunity in this case was sufficiently established by the Memorand
um and Certification of the Department of Foreign Affairs. As the department tas
ked with the conduct of the Philippines foreign relations (Administrative Code of
1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally
intervened in this case and officially certified that the Embassy of the Holy S
ee is a duly accredited diplomatic mission to the Republic of the Philippines ex
empt from local jurisdiction and entitled to all the rights, privileges and immu
nities of a diplomatic mission or embassy in this country (Rollo, pp. 156-157).
The determination of the executive arm of government that a state or instrumenta
lity is entitled to sovereign or diplomatic immunity is a political question tha
t is conclusive upon the courts (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and affi
rmed by the executive branch, it is the duty of the courts to accept this claim
so as not to embarrass the executive arm of the government in conducting the cou
ntry s foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972])
. As in International Catholic Migration Commission and in World Health Organiza
tion, we abide by the certification of the Department of Foreign Affairs.
Same; Same; Same; Under both Public International Law and Transnational Law, a p
erson who feels aggrieved by the acts of a foreign sovereign can ask his own gov
ernment to espouse his cause through diplomatic channels. Private respondent is no
t left without any legal remedy for the redress of its grievances. Under both Pu
blic International Law and Transnational Law, a person who feels aggrieved by th
e acts of a foreign sovereign can ask his own government to espouse his cause th
rough diplomatic channels.
Same; Same; Same; Private respondent can ask the Philippine government, through
the Foreign Office, to espouse its claims against the Holy See. Private respondent
can ask the Philippine government,
528
528
through the Foreign Office, to espouse its claims against the Holy See. Its firs
t task is to persuade the Philippine government to take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a determ
ination of the impact of its espousal on the relations between the Philippine go
vernment and the Holy See (Young, Remedies of Private Claimants Against Foreign
States, Selected Readings on Protection by Law of Private Foreign Investments 90
5, 919 [1964]). Once the Philippine government decides to espouse the claim, the
latter ceases to be a private cause.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
reverse and set aside the Orders dated June 20, 1991 and September 19, 1991 of
the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-1
83.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the com
plaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied
the motion for reconsideration of the June 20, 1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Ro
me, Italy, and is represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporatio
n engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000
square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in th
e Municipality of Paraaque, Metro Manila and registered in the name of petitioner
.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Cer
tificates of Title Nos. 271108 and 265388 respectively and registered in the nam
e of the Philippine Realty Corporation (PRC).
529
529
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr.,
acting as agent of the sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respo
ndent, a dispute arose as to who of the parties has the responsibility of evicti
ng and clearing the land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana Properties and Development C
orporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Tria
l Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three
parcels of land, and specific performance and damages against petitioner, repres
ented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo
A. Cirilos, Jr., the PRC and Tropicana (Civil Case No. 90-183). The complaint al
leged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner a
nd the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of
P1,240.00 per square meter; (2) the agreement to sell was made on the condition
that earnest money of P100,000.00 be paid by Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the same; (3) L
icup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assig
ned his rights over the property to private respondent and informed the sellers
of the said assignment; (5) thereafter, private respondent demanded from Msgr. C
irilos that the sellers fulfill their undertaking and clear the property of squa
tters; however, Msgr. Cirilos informed private respondent of the squatters refusa
l to vacate the lots, proposing instead either that private respondent undertake
the eviction or that the earnest money be returned to the latter; (6) private r
espondent counterproposed that if it would undertake the eviction of the squatte
rs, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00
per square meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 a
nd wrote private respondent giving it seven days from receipt of the letter to p
ay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later
530
530
discovered that on March 30, 1989, petitioner and the PRC, without notice to pri
vate respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the selle
rs transfer certificate of title over the lots were cancelled, transferred and re
gistered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC
to sell the lots to it and thus enriched itself at the expense of private respon
dent; (10) private respondent demanded the rescission of the sale to Tropicana a
nd the reconveyance of the lots, to no avail; and (11) private respondent is wil
ling and able to comply with the terms of the contract to sell and has actually
made plans to develop the lots into a townhouse project, but in view of the sell
ers breach, it lost profits of not less than P30,000,000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale betwe
en petitioner and the PRC on the one hand, and Tropicana on the other; (2) the r
econveyance of the lots in question; (3) specific performance of the agreement t
o sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the co
mplaint petitioner for lack of jurisdiction based on sovereign immunity from suit,
and Msgr. Cirilos for being an improper party. An opposition to the motion was
filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitio
ner s motion to dismiss after finding that petitioner shed off [its] sovereign immu
nity by entering into the business contract in question (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 3
0, 1991, petitioner filed a Motion for a Hearing for the Sole Purpose of Establis
hing Factual Allegation for Claim of Immunity as a Jurisdictional Defense. So as
to facilitate the determination of its defense of sovereign immunity, petitioner
prayed that a hearing be conducted to allow it to establish certain facts upon
which the said defense is based. Private respondent opposed this motion as well
as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on
the motion for reconsideration until after trial on the merits and directing pet
itioner to file its answer (Rollo, p.
531
531
22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invo
kes the privilege of sovereign immunity only on its own behalf and on behalf of
its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Depart
ment of Foreign Affairs, claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of petitioner, and that it adopts by
reference, the allegations contained in the petition of the Holy See insofar as
they refer to arguments relative to its claim of sovereign immunity from suit (R
ollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs
. In compliance with the resolution of this Court, both parties and the Departme
nt of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the p
etition for certiorari under Rule 65 of the Revised Rules of Court can be availe
d of to question the order denying petitioner s motion to dismiss. The general rul
e is that an order denying a motion to dismiss is not reviewable by the appellat
e courts, the remedy of the movant being to file his answer and to proceed with
the hearing before the trial court. But the general rule admits of exceptions, a
nd one of these is when it is very clear in the records that the trial court has
no alternative but to dismiss the complaint (Philippine National Bank v. Floren
do, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]
). In such a case, it would be a sheer waste of time and energy to require the p
arties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or
legal interest of the Department of Foreign Affairs to intervene in the case in
behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plea
d sovereign or diplomatic immunity in a foreign court, it requests the Foreign O
ffice of the state where it
532
532
is sued to convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of suggestion, where t
he foreign state or the international organization sued in an American court req
uests the Secretary of State to make a determination as to whether it is entitle
d to immunity. If the Secretary of State finds that the defendant is immune from
suit, he, in turn, asks the Attorney General to submit to the court a suggestion
that the defendant is entitled to immunity. In England, a similar procedure is f
ollowed, only the Foreign Office issues a certification to that effect instead o
f submitting a suggestion (O Connell, I International Law 130 [1965]; Note: Immunity
from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law J
ournal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the internatio
nal organization to first secure an executive endorsement of its claim of sovere
ign or diplomatic immunity. But how the Philippine Foreign Office conveys its en
dorsement to the courts varies. In International Catholic Migration Commission v

. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a let
ter directly to the Secretary of Labor and Employment, informing the latter that
the respondent-employer could not be sued because it enjoyed diplomatic immunit
y. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of
Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon
, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to r
equest the Solicitor General to make, in behalf of the Commander of the United S
tates Naval Base at Olongapo City, Zambales, a suggestion to respondent Judge. The
Solicitor General embodied the suggestion in a Manifestation and Memorandum as am
icus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of L
egal Affairs moved with this Court to be allowed to intervene on the side of pet
itioner. The Court allowed the said Department to file its memorandum in support
of petitioner s claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the l
ocal courts by the respondents through their
533
533
private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippi
ne-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182
SCRA 644 [1990] and companion cases). In cases where the foreign states bypass
the Foreign Office, the courts can inquire into the facts and make their own det
ermination as to the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction ov
er petitioner, being a foreign state enjoying sovereign immunity. On the other h
and, private respondent insists that the doctrine of non-suability is not anymor
e absolute and that petitioner has divested itself of such a cloak when, of its
own free will, it entered into a commercial transaction for the sale of a parcel
of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner s non-suability, a brief look into its
status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the mon
arch and he, as the Holy See, was considered a subject of International Law. Wit
h the loss of the Papal States and the limitation of the territory under the Hol
y See to an area of 108.7 acres, the position of the Holy See in International L
aw became controversial (Salonga and Yap, Public International Law 36-37 [1992])
.
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy rec
ognized the exclusive dominion and sovereign jurisdiction of the Holy See over t
he Vatican City. It also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries, and to enter into tr
eaties according to International Law (Garcia, Questions and Problems In Interna
tional Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City for the purpose
of assuring to the Holy See absolute and visible independence and of guaranteein
g to it indisputable sovereignty also in the field of international relations (O Co
nnell,
534
534
I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whet
her the statehood is vested in the Holy See or in the Vatican City. Some writers
even suggested that the treaty created two international persons the Holy See and
Vatican City (Salonga and Yap, supra. 37)
The Vatican City fits into none of the established categories of states, and the
attribution to it of sovereignty must be made in a sense different from that in w
hich it is applied to other states (Fenwick, International Law 124-125 [1948]; C
ruz, International Law 37 [1991]). In a community of national states, the Vatica
n City represents an entity organized not for political but for ecclesiastical p
urposes and international objects. Despite its size and object, the Vatican City
has an independent government of its own, with the Pope, who is also head of th
e Roman Catholic Church, as the Holy See or Head of State, in conformity with it
s traditions, and the demands of its mission in the world. Indeed, the world-wid
e interests and activities of the Vatican City are such as to make it in a sense
an international state (Fenwick, supra. 125; Kelsen, Principles of International
Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has sign
ificant implication that it is possible for any entity pursuing objects essentiall
y different from those pursued by states to be invested with international perso
nality (Kunz, The Status of the Holy See in International Law, 46 The American J
ournal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transac
tions as the Holy See and not in the name of the Vatican City, one can conclude
that in the Pope s own view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreig
n sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had dip
lomatic representa-tions with the Philippine government since 1957 (Rollo, p. 87
). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopte
d the generally accepted principles of International
535
535
Law. Even without this affirmation, such principles of International Law are dee
med incorporated as part of the law of the land as a condition and consequence o
f our admission in the society of nations (United States of America v. Guinto, 1
82 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and f
irmly established. According to the classical or absolute theory, a sovereign ca
nnot, without its consent, be made a respondent in the courts of another soverei
gn. According to the newer or restrictive theory, the immunity of the sovereign
is recognized only with regard to public acts or acts jure imperii of a state, b
ut not with regard to private acts or acts jure gestionis (United States of Amer
ica v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public Internati
onal Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judic
ial determination when an act may be considered as jure gestionis. The United St
ates passed the Foreign Sovereign Immunities Act of 1976, which defines a commer
cial activity as either a regular course of commercial conduct or a particular co
mmercial transaction or act. Furthermore, the law declared that the commercial cha
racter of the activity shall be determined by reference to the nature of the cou
rse of conduct or particular transaction or act, rather than by reference to its
purpose. The Canadian Parliament enacted in 1982 an Act to Provide For State Imm
unity in Canadian Courts. The Act defines a commercial activity as any particular
transaction, act or conduct or any regular course of conduct that by reason of i
ts nature, is of a commercial character.
The restrictive theory, which is intended to be a solution to the host of proble
ms involving the issue of sovereign immunity, has created problems of its own. L
egal treatises and the decisions in countries which follow the restrictive theor
y have difficulty in characterizing whether a contract of a sovereign state with
a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into
purely commercial activities remotely connected with the discharge of government
al functions. This is particularly true with respect to the Communist states whi
ch took control of nationalized business activities and international trading.
536
536
This Court has considered the following transactions by a foreign state with pri
vate parties as acts jure imperii: (1) the lease by a foreign government of apar
tment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312
[1949]; (2) the conduct of public bidding for the repair of a wharf at a United
States Naval Station (United States of America v. Ruiz, supra); and (3) the chan
ge of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [19
88]).
On the other hand, this Court has considered the following transactions by a for
eign state with private parties as acts jure gestionis: (1) the hiring of a cook
in the recreation center, consisting of three restaurants, a cafeteria, a baker
y, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio C
ity, to cater to American servicemen and the general public (United States of Am
erica v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of
barber shops in Clark Air Base in Angeles City (United States of America v. Gui
nto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities
open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in
the discharge of its proprietary function, the United States government implied
ly divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be
considered commercial and as constituting acts jure gestionis, we have to come ou
t with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private p
arty cannot be the ultimate test. Such an act can only be the start of the inqui
ry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularl
y in a business or trade, the particular act or transaction must then be tested
by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken fo
r gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, wil
l be deemed to have impliedly waived its non-suability if
537
537
it has entered into a contract in its proprietary or private capacity. It is onl
y when the contract involves its sovereign or governmental capacity that no such
waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary co
urse of a real estate business, surely the said transaction can be categorized a
s an act jure gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquire
d said property for the site of its mission or the Apostolic Nunciature in the P
hilippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila.
The donation was made not for commercial purpose, but for the use of petitioner
to construct thereon the official place of residence of the Papal Nuncio. The r
ight of a foreign sovereign to acquire property, real or personal, in a receivin
g state, necessary for the creation and maintenance of its diplomatic mission, i
s recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22)
. This treaty was concurred in by the Philippine Senate and entered into force i
n the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from
the civil and administrative jurisdiction of the receiving state over any real a
ction relating to private immovable property situated in the territory of the re
ceiving state which the envoy holds on behalf of the sending state for the purpo
ses of the mission. If this immunity is provided for a diplomatic envoy, with al
l the more reason should immunity be recognized as regards the sovereign itself,
which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are li
kewise clothed with a governmental character. Petitioner did not sell Lot 5-A fo
r profit or gain. It merely wanted to dispose off the same because the squatters
living thereon made it almost impossible for petitioner to use it for the purpo
se of the donation. The fact that squatters have occupied and are still occupyin
g the lot, and that they stubbornly refuse to leave the premises, has been admit
ted by private respondent in its complaint (Rollo, pp. 26, 27).
538
538
The issue of petitioner s non-suability can be determined by the trial court witho
ut going to trial in the light of the pleadings, particularly the admission of p
rivate respondent. Besides, the privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and Certification of the Department
of Foreign Affairs. As the department tasked with the conduct of the Philippines
foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the D
epartment of Foreign Affairs has formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly accredited diplomatic miss
ion to the Republic of the Philippines exempt from local jurisdiction and entitl
ed to all the rights, privileges and immunities of a diplomatic mission or embas
sy in this country (Rollo, pp. 156-157). The determination of the executive arm
of government that a state or instrumentality is entitled to sovereign or diplom
atic immunity is a political question that is conclusive upon the courts (Intern
ational Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where th
e plea of immunity is recognized and affirmed by the executive branch, it is the
duty of the courts to accept this claim so as not to embarrass the executive ar
m of the government in conducting the country s foreign relations (World Health Or
ganization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Migratio
n Commission and in World Health Organization, we abide by the certification of
the Depart-ment of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court
to conduct a hearing to establish the facts alleged by petitioner in its motion.
In view of said certification, such procedure would however be pointless and un
duly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its g
rievances. Under both Public International Law and Transnational Law, a person w
ho feels aggrieved by the acts of a foreign sovereign can ask his own government
to espouse his cause through diplomatic channels.
539
539

Private respondent can ask the Philippine government, through the Foreign Office
, to espouse its claims against the Holy See. Its first task is to persuade the
Philippine government to take up with the Holy See the validity of its claims. O
f course, the Foreign Office shall first make a determination of the impact of i
ts espousal on the relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States, Selected Readings
on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the P
hilippine government decides to espouse the claim, the latter ceases to be a pri
vate cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
By taking up the case of one of its subjects and by resorting to diplomatic actio
n or international judicial proceedings on his behalf, a State is in reality ass
erting its own rights its right to ensure, in the person of its subjects, respect
for the rules of international law (The Mavrommatis Palestine Concessions, 1 Huds
on, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Cas
e No. 90-183 against petitioner is DISMISSED.
SO ORDERED.
Narvasa (C.J.), Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Pun
o, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano, J., On leave.
Padilla, J., No part; related to petitioner s counsel.
Petition granted, complaint dismissed.
Note. Doctrine of rebus sic stantibus does not operate automatically. There is a n
ecessity for a formal act of rejection, usually made by the Head of State, with
a statement of the reasons why compliance with the treaty is no longer required.
(Santos III vs. Northwest Orient Airlines, 210 SCRA 256 [1992])
o0o
540
G.R. Nos. 97468-70. September 2, 1993.*

SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER, represented by its Chief, DR. FLOR
J. LACANILAO, petitioner, vs. DANILO ACOSTA in his capacity as Labor Arbiter of
the National Labor Relations Commission, Regional Arbitration, Branch VI, CORAZ
ON CANTO, DAN BALIAO, ELIZABETH SUPETRAN, CARMELITA FERRER, CATHRYN CONTRADOR, a
nd DORIC VELOSO, respondents.
International Law; Jurisdiction; It is beyond question that petitioner SEAFDEC i
s an international agency enjoying diplomatic immunity. It is beyond question that
petitioner SEAFDEC is an international agency enjoying diplomatic immunity. Thi
s, we have already held in Southeast Asian Fisheries Development Center-Aquacult
ure Department vs. National Labor Relations Commission, G.R. No. 86773, 206 SCRA
283/1992/; see also Lacanilao v. de Leon, G.R. No. 76532, 147 SCRA 286/1987, wh
ere we said Petitioner Southeast Asian Fisheries Development Center-Aquaculture Dep
artment (SEAFDEC-AQD) is an international agency beyond the jurisdiction of publ
ic respondent NLRC.
Same; Same; Same; Section 2 of PD No. 292 had provided for the autonomous charac
ter of SEAFDEC. Furthermore, Section 2 of the
_______________
* THIRD DIVISION.
50
50
Southeast Asian Fisheries Development Center vs. Acosta
same decree had provided for the autonomous character of SEAFDEC, thus: x x x All
funds received by the Department shall be receipted and disbursed in accordance
with the Agreement establishing the Southeast Asian Fisheries Development Cente
r and pertinent resolutions duly approved by the SEAFDEC Council.
Same; Same; Same; Anent the issue of waiver of immunity, suffice it to say at th
e moment that the petitioner has timely raised the issue of jurisdiction. Anent th
e issue of waiver of immunity, suffice it to say at the moment that the petition
er has timely raised the issue of jurisdiction. While the petitioner did not que
stion the public respondent s lack of jurisdiction at the early stages of the proc
eedings, it, nevertheless, did so before it rested its case and certainly well b
efore the proceedings thereat had terminated.
SPECIAL CIVIL ACTION for certiorari and prohibition.
The facts are stated in the resolution of the Court.
Hector P. Teodosio for petitioner.
Cirilo Ganzon, Jr. for private respondents.
R E S O L U T I O N
VITUG, J.:
This is an original petition for certiorari and prohibition, with a prayer for t
he issuance of a restraining order, to set aside the order of respondent labor a
rbiter, dated 20 September 1990, denying herein petitioner s motion to dismiss the
cases subject matter of the petition for lack of jurisdiction.
Two labor cases, docketed as RAB Case No. VI-0156-86 and RAB Case No. VI 0214-86,
were filed by the herein private respondents against the petitioner, Southeast A
sian Fisheries Development Center (SEAFDEC), before the National Labor Relations
Commission (NLRC), Regional Arbitration Branch, Iloilo City. In these cases, th
e private respondents claim having been wrongfully terminated from their employm
ent by the petitioner.
On 22 August 1990, the petitioner, contending to be an international inter-gover
nment organization, composed of various Southeast Asian countries, filed a Motio
n to Dismiss, challenging the jurisdiction of the public respondent in taking co
gnizance
51
VOL. 226, SEPTEMBER 2, 1993
51
of the above cases.
On 20 September 1990, the public respondent issued the assailed order denying th
e Motion to Dismiss. In due course, a Motion for Reconsideration was interposed
but the same, in an order, dated 07 January 1991, was likewise denied.
Hence, the instant petition. This Court, on 20 March 1991, issued the temporary
restraining order prayed for.
The private respondents, as well as respondent labor arbiter, allege that the pe
titioner is not immune from suit and assuming that if, indeed, it is an internat
ional organization, it has, however, impliedly, if not expressly, waived its imm
unity by belatedly raising the issue of jurisdiction.
The Solicitor (General, on his part, filed a Manifestation and Motion, which the
Court granted, praying that he be excused from filing his comment for responden
t Labor Arbiter, he not being in agreement with the latter s position on this matt
er.
On 30 March 1992, this Court dismissed the instant petition in a resolution whic
h reads:
x x x Considering the allegations, issues and arguments adduced in the petition for
certiorari as well as the separate comments thereon of the public and private r
espondents, and the consolidated reply thereto of the petitioner, the Court RESO
LVED to dismiss the petition for failure to sufficiently show that the questione
d judgment is tainted with grave abuse of discretion. The temporary restraining
order issued on March 20, 1991 is hereby LIFTED effective immediately.
In time, the petitioner moved for a reconsideration, arguing that the ground for
its seeking the allowance of the petition is the labor arbiter s lack of jurisdic
tion over the dispute.
The court is now asked to rule upon the motion for reconsideration.
We rule for the petitioner.
It is beyond question that petitioner SEAFDEC is an international agency enjoyin
g diplomatic immunity. This, we have already held in Southeast Asian Fisheries D
evelopment CenterAquaculture Department vs. National Labor Relations Commission,
G.R. No. 86773, 206 SCRA 283 [1992]; see also Lacanilao v. de Leon, G.R. No. 76
532, 147 SCRA 286 [1987], where we said
52
52
Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department (S
EAFDEC-AQD) is an international agency beyond the jurisdiction of public respond
ent NLRC.
It was established by the Governments of Burma, Kingdom of Cambodia, Republic of
Indonesia, Japan, Kingdom of Laos, Malaysia, Republic of the Philippines, Republ
ic of Singapore, Kingdom of Thailand and Republic of Vietnam x x x.
The Republic of the Philippines became a signatory to the Agreement establishing
SEAFDEC on January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the fisheries dev
elopment in Southeast Asia by mutual cooperation among the member governments of
the Center, hereinafter called the Members , and through collaboration with intern
ational organizations and governments external to the Center. (Agreement Establi
shing the SEAFDEC, Art. 1; x x x).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC on July 3-7
, 1973 in Kuala Lumpur, Malaysia as one of the principal departments of SEAFDEC
x x x to be established in Iloilo for the promotion of research in aquaculture.
Paragraph 1, Article 6 of the Agreement establishing SEAFDEC mandates:
1. The Council shall be the supreme organ of the Center and all powers of the Cen
ter shall be vested in the Council.

Being an intergovernmental organization, SEAFDEC including its Department (AQD),
enjoys functional independence and freedom from control of the state in whose te
rritory its office is located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap stated in thei
r book, Public International Law (p. 83, 1956 ed.):
Permanent international commissions and administrative bodies have been created b
y the agreement of a considerable number of States for a variety of internationa
l purposes, economic or social and mainly non-political. Among the notable insta
nces are the International Labor Organization, the International Institute of Ag
riculture, the International Danube Commission. In so far as they are autonomous
and beyond the control of any one State, they have a distinct juridical persona
lity independent of the municipal law of the State where they are situated. As s
uch, according to one leading authority (t)hey must be deemed to possess a speci
es of international personality of their own. (Salonga and Yap, Public Internati
onal Law, 83 [1956 ed.]
53
53
Pursuant to its being a signatory to the Agreement, the Republic of the Philippin
es agreed to be represented by one Director in the governing SEAFDEC Council (Ag
reement Establishing SEAFDEC, Art. 5, Par. 1, x x x), and that its national laws
and regulations shall apply only insofar as its contributions to SEAFDEC of an a
greed amount of money, movable and immovable property and services necessary for
the establishment and operation of the Center are concerned (Art. 11, ibid).It e
xpressly waived the application of the Philippines laws on the disbursement of f
unds of petitioner SEAFDECAQD (Section 2, P.D. No. 292).
The then Minister of Justice likewise opined that Philippine Courts have no juris
diction over SEAFDEC-AQD in Opinion No. 139, Series of 1984
4. One of the basic immunities of an international organization is immunity from
local jurisdiction, i.e., that it is immune from the legal writs and processes i
ssued by the tribunals of the country where it is found. (See Jenks, Id., pp. 37
-44) The obvious reason for this is that the subjection of such an organization
to the authority of the local courts would afford a convenient medium thru which
the host government may interfere in their operations or even influence or cont
rol its policies and decisions of the organization; besides, such subjection to
local jurisdiction would impair the capacity of such body to discharge its respo
nsibilities impartially on behalf of its member-states. In the case at bar, for
instance, the entertainment by the National Labor Relations Commission of Mr. Ma
damba s reinstatement cases would amount to interference by the Philippine Governm
ent in the management decisions of the SEARCA governing board; even worse, it co
uld compromise the desired impartiality of the organization since it will have t
o suit its actuations to the requirements of Philippine law, which may not neces
sarily coincide with the interests of the other member-states. It is precisely t
o forestall these possibilities that in cases where the extent of the immunity i
s specified in the enabling instruments of international organizations, (jurisdi
ctional immunity, is specified in the enabling instruments of international orga
nizations) jurisdictional immunity from the host country is invariably among the
first accorded. (See Jenks, Id.; See Bowett. The Law of International Institutio
ns, pp. 284-285).
At its Sixth Meeting held at Kuala Lumpur, Malaysia, on 3 to 7 July 1973, the SE
AFDEC Council approved the formal establishment of its Aquaculture Department in
the province of Iloilo,
54
54
Philippines, to promote research in Aquaculture as so expressed in the Whereas Cla

uses of Presidential Decree No. 292 issued on 13 September 1973.1 Furthermore, S
ection 2 of the same decree had provided for the autonomous character of SEAFDEC
, thus:
x x x All funds received by the Department shall be receipted and disbursed in ac
cordance with the Agreement establishing the Southeast Asian Fisheries Developme
nt Center and pertinent resolutions duly approved by the SEAFDEC Council.
As aptly pointed out by Associate Justice Isagani Cruz of this Court
Certain administrative bodies created by agreement among states may be vested wit
h international personality when two conditions concur, to wit:, that their purp
oses are mainly non-political and that they are autonomous, i.e., not subject to
the control of any state. 2
Anent the issue of waiver of immunity, suffice it to say at the moment that the
petitioner has timely raised the issue of jurisdiction. While the petitioner did
not question the public respon_______________
1 WHEREAS, the Republic of the Philippines, on January 16, 1968, became a signat
ory to the Agreement establishing the Southeast Asian Fisheries Development Cent
er (SEAFDEC);
WHEREAS, the SEAFDEC council, at its Sixth Meeting held at Kuala Lumpur (Malaysi
a) on July 3-7, 1973, approved the formal establishment of its Aquaculture Depar
tment in the province of Iloilo, Philippines;
WHEREAS, the SEAFDEC Aquaculture Department is designed to promote research in a
quaculture, especially in the production of prawns and shrimps, undertake the co
rresponding training programs for fisheries experts and technicians and dissemin
ate information on fisheries research and development for SEAFDEC member-countri
es in Southeast Asia;
WHEREAS, the establishment of the SEAFDEC Aquaculture Department in the Philippi
nes will directly and immediately stimulate the development of the fisheries ind
ustry in the country, as well as in neighboring nations in Southeast Asia.
2 Isagani Cruz, International Law, 1977 Edition, p. 31.
55
55
National Housing Corporation vs. Commission on Audit
dent s lack of jurisdiction at the early stages of the proceedings, it, neverthele
ss, did so before it rested its case and certainly well before the proceedings t
hereat had terminated.
WHEREFORE, our resolution, dated 30 March 1992, dismissing the petition for cert
iorari, is hereby reconsidered, and another is entered (a) granting due course t
o the petition; (b) setting aside the order dated 20 September 1990, of the publ
ic respondent; and (c) enjoining the public respondent from further proceeding w
ith RAB Case No. VI-0156-86 and RAB Case No. VI-0214-86. No costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Petition given due course. Questioned order set aside.
Note. A party who voluntarily participates in the trial cannot later on raise the
issue of the court s lack of jurisdiction (Maersk-Tabacalera Shipping Agency (Fili
pinas) Inc. vs. Court of Appeals, 187 SCRA 646).
o0o
G.R. No. 171396. May 3, 2006.*

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR.,
JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHR
ISTOPHER F.C. BOLASTIG, petitioners, vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT A
ND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FO
RCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATI
ONAL POLICE, respondents.
G.R. No. 171409. May 3, 2006.*
NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., petitioners, vs. HONORABLE
SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, respo
ndents.
G.R. No. 171485. May 3, 2006.*
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASIO, AGAPITO A. AQUI
NO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOF
ISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCO
S, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUS
TODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. R
EMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F.
_______________
* EN BANC.
161
VOL. 489, MAY 3, 2006
161
David vs. Macapagal-Arroyo
LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTI
ES REPRESENTED BY AMADO GAT INCIONG, petitioners, vs. EDUARDO R. ERMITA, EXECUTI
VE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, D
ILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, respondents.
G.R. No. 171483. May 3, 2006.*
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY G
ENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFL
U-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. P
ASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQU
E M. TAN, petitioners, vs. HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, TH
E HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCE
S OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIB
AO, respondents.
G.R. No. 171400. May 3, 2006.*
ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. EXECUTIVE SECRETARY EDUARDO
R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, respond
ents.
G.R. No. 171489. May 3, 2006.*
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMO
RADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOV
Y C. BERNABE, BERNARD L. DAG162
162
CUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), petitioners
, vs. HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CA
PACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACI
TY AS PNP CHIEF, respondents.
G.R. No. 171424. May 3, 2006.*
LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PR
ESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENE
RAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS
CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, respondents.
Constitutional Law; Separation of Powers; Checks and Balances; Judicial Review;
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison, 1 Cranch 137 (1803)
. One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison, 1 Cranch 137 (1803)
. This concept rests on the extraordinary simple foundation The Constitution is th
e supreme law. It was ordained by the people, the ultimate source of all politic
al authority. It confers limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its unconstitutiona
l attempt, and thus to vindicate and preserve inviolate the will of the people a
s expressed in the Constitution. This power the courts exercise. This is the beg
inning and the end of the theory of judicial review.
Same; Same; Same; Same; Requisites; The power of judicial review does not repose
upon the courts a self-starting capacity. The power of judicial review does not rep
ose upon the courts a self163
VOL. 489, MAY 3, 2006
163
starting capacity. Courts may exercise such power only when the following requisi
tes are present: first, there must be an actual case or controversy; second, pet
itioners have to raise a question of constitutionality; third, the constitutiona
l question must be raised at the earliest opportunity; and fourth, the decision
of the constitutional question must be necessary to the determination of the cas
e itself.
Same; Same; Same; Same; Same; Words and Phrases; An actual case or controversy i
nvolves a conflict of legal right, an opposite legal claims susceptible of judic
ial resolution it is definite and concrete, touching the legal relations of parties
having adverse legal interest, a real and substantial controversy admitting of s
pecific relief. An actual case or controversy involves a conflict of legal right,
an opposite legal claims susceptible of judicial resolution. It is definite and c
oncrete, touching the legal relations of parties having adverse legal interest ; a
real and substantial controversy admitting of specific relief. The Solicitor Ge
neral refutes the existence of such actual case or controversy, contending that
the present petitions were rendered moot and academic by President Arroyo s issuance
of PP 1021.
Same; Same; Same; Same; Same; Moot and Academic Questions; The moot and academic p
rinciple is not a magical formula that can automatically dissuade the courts in
resolving a case; Courts will decide cases, otherwise moot and academic, if: fir
st, there is a grave violation of the Constitution, second, the exceptional char
acter of the situation and the paramount public interest is involved, third, whe
n constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public, and fourth, the case is capable of rep
etition yet evading review. A moot and academic case is one that ceases to present
a justiciable controversy by virtue of supervening events, so that a declaratio
n thereon would be of no practical use or value. Generally, courts decline juris
diction over such case or dismiss it on ground of mootness. The Court holds that
President Arroyo s issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police o
fficers, according to petitioners, committed illegal acts in implementing it. Ar
e PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the present pe
titions. It must be stressed that an unconstitutional act is not a law,
164
164
it confers no rights, it imposes no duties, it affords no protection; it is in l
egal contemplation, inoperative. The moot and academic principle is not a magical f
ormula that can automatically dissuade the courts in resolving a case. Courts wi
ll decide cases, otherwise moot and academic, if: first, there is a grave violat
ion of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when constitutional issue rais
ed requires formulation of controlling principles to guide the bench, the bar, a
nd the public; and fourth, the case is capable of repetition yet evading review.
Same; Same; Same; Same; Same; Locus Standi; Words and Phrases; Locus standi is d
efined as a right of appearance in a court of justice on a given question. Locus sta
ndi is defined as a right of appearance in a court of justice on a given question
. In private suits, standing is governed by the real-parties-in interest rule as co
ntained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. I
t provides that every action must be prosecuted or defended in the name of the re
al party in interest. Accordingly, the real-party-in interest is the party who stand
s to be benefited or injured by the judgment in the suit or the party entitled t
o the avails of the suit. Succinctly put, the plaintiff s standing is based on his
own right to the relief sought.
Same; Same; Same; Same; Same; Same; The difficulty of determining locus standi a
rises in public suits, as here, the plaintiff who asserts a public right in assail
ing an allegedly illegal official action, does so as a representative of the gen
eral public. The difficulty of determining locus standi arises in public suits. He
re, the plaintiff who asserts a public right in assailing an allegedly illegal off
icial action, does so as a representative of the general public. He may be a per
son who is affected no differently from any other person. He could be suing as a
stranger, or in the category of a citizen, or taxpayer. In either case, he has to ade
quately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order an
d the securing of relief as a citizen or taxpayer.
Same; Same; Same; Same; Same; Same; Taxpayer s Suits; Citizen s Suits; The plaintiff
in a taxpayer s suit is in a different category from the plaintiff in a citizen s s
uit in the former, the plaintiff is
165
VOL. 489, MAY 3, 2006
165
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. Case law in most jurisdictions now allows b
oth citizen and taxpayer standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer s su
it is in a different category from the plaintiff in a citizen s suit. In the forme
r, the plaintiff is affected by the expenditure of public funds, while in the la
tter, he is but the mere instrument of the public concern. As held by the New Yo
rk Supreme Court in People ex rel Case v. Collins: In matter of mere public right
, however . . . the people are the real parties . . . It is at least the right,
if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied. With resp
ect to taxpayer s suits, Terr v. Jordanheld that the right of a citizen and a taxpa
yer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied.
Same; Same; Same; Same; Same; Same; Same; Same; Direct Injury Test; To prevent jus
t about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmenta
l agencies engaged in public service, the United States Supreme Court laid down
the more stringent direct injury test, which test has been adopted in this jurisdi
ction. To prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activi
ties of governmental agencies engaged in public service, the United States Supre
me Court laid down the more stringent direct injury test in Ex Parte Levitt, later
reaffirmed in Tileston v. Ullman. The same Court ruled that for a private indiv
idual to invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as a resu
lt of that action, and it is not sufficient that he has a general interest commo
n to all members of the public. This Court adopted the direct injury test in our j
urisdiction. In People v. Vera, 65 Phil. 56 (1937), it held that the person who
impugns the validity of a statute must have a personal and substantial interest i
n the case such that he has sustained, or will sustain direct injury as a result
. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. Preside
nt of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual
v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Feli
x.
166
166
Same; Same; Same; Same; Same; Same; Being a mere procedural technicality, the re
quirement of locus standi may be waived by the Court in the exercise of its disc
retion, such as in cases of transcendental importance, or where the issues raised
have far-reaching implications. Being a mere procedural technicality, the requiremen
t of locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, 84 Phil.
368 (1949), where the transcendental importance of the cases prompted the Court t
o act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec, 62 SCRA 275 (1975), this Court resolved to pass upon the issues rais
ed due to the far-reaching implications of the petition notwithstanding its catego
rical statement that petitioner therein had no personality to file the suit. Ind
eed, there is a chain of cases where this liberal policy has been observed, allo
wing ordinary citizens, members of Congress, and civic organizations to prosecut
e actions involving the constitutionality or validity of laws, regulations and r
ulings.
Same; Same; Same; Same; Same; Same; Requisites in order that Taxpayers, Voters,
Concerned Citizens and Legislators may be Accorded Standing to Sue; Recent decis
ions show a certain toughening in the Court s attitude toward legal standing. By way
of summary, the following rules may be culled from the cases decided by this Co
urt. Taxpayers, voters, concerned citizens, and legislators may be accorded stan
ding to sue, provided that the following requirements are met: (1) cases involve
constitutional issues; (2) for taxpayers, there must be a claim of illegal disb
ursement of public funds or that the tax measure is unconstitutional; (3) for vo
ters, there must be a showing of obvious interest in the validity of the electio
n law in question; (4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained o
f infringes upon their prerogatives as legislators. Significantly, recent decisi
ons show a certain toughening in the Court s attitude toward legal standing.
Same; Same; Same; Same; Same; Same; It is in the interest of justice that those
affected by Presidential Proclamation (PP) 1017 can be represented by their Cong
ressmen in bringing to the attention of the Court the alleged violations of thei
r basic rights. In G.R. No.
167
VOL. 489, MAY 3, 2006
167
171485, the opposition Congressmen alleged there was usurpation of legislative p
owers. They also raised the issue of whether or not the concurrence of Congress
is necessary whenever the alarming powers incident to Martial Law are used. More
over, it is in the interest of justice that those affected by PP 1017 can be rep
resented by their Congressmen in bringing to the attention of the Court the alle
ged violations of their basic rights.
Same; Same; Same; Same; Same; Same; When the issue concerns a public right, it i
s sufficient that the petitioner is a citizen and has an interest in the executi
on of the laws. In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez, 235 SCRA 506 (1994), Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, Association of Small Landowners in the Ph
ilippines, Inc. v. Secretary of Agrarian Reform, Basco v. Philippine Amusement a
nd Gaming Corporation, 197 SCRA 52 (1991), and Taada v. Tuvera, 136 SCRA 27 (1985
), that when the issue concerns a public right, it is sufficient that the petiti
oner is a citizen and has an interest in the execution of the laws.
Same; Same; Same; Same; Same; Same; Organizations may be granted standing to ass
ert the rights of their members. In G.R. No. 171483, KMU s assertion that PP 1017 an
d G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to
give it legal standing. Organizations may be granted standing to assert the rig
hts of their members. We take judicial notice of the announcement by the Office
of the President banning all rallies and canceling all permits for public assemb
lies following the issuance of PP 1017 and G.O. No. 5.
Same; Same; Same; Same; Same; Same; National officers of the Integrated Bar of t
he Philippines (IBP) have no legal standing where they failed to allege any dire
ct or potential injury which the IBP as an institution or its members may suffer
as a consequence of the issuance of PP 1017 and G.O. No. 5. In G.R. No. 171489, p
etitioners, Cadiz, et al., who are national officers of the Integrated Bar of th
e Philippines (IBP) have no legal standing, having failed to allege any direct o
r potential injury which the IBP as an institution or its members may suffer as
a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar o
f the Philippines v. Zamora, 338 SCRA 81 (2000), the Court held that the mere in
vocation by the IBP of its
168
168
duty to preserve the rule of law and nothing more, while undoubtedly true, is no
t sufficient to clothe it with standing in this case. This is too general an int
erest which is shared by other groups and the whole citizenry. However, in view
of the transcendental importance of the issue, this Court declares that petition
er have locus standi.
Same; Same; Same; Same; Same; Same; The claim of a petitioner that she is a medi
a personality does not aid her where there is no showing that the enforcement of
the issuances in question prevented her from pursuing her occupation, and neith
er does her submission that she has a pending electoral protest before the Presi
dential Electoral Tribunal have any relevance where she has not sufficiently sho
wn that PP 1017 will affect the proceedings or result of her case. In G.R. No. 171
424, Loren Legarda has no personality as a taxpayer to file the instant petition
as there are no allegations of illegal disbursement of public funds. The fact t
hat she is a former Senator is of no consequence. She can no longer sue as a leg
islator on the allegation that her prerogatives as a lawmaker have been impaired
by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not l
ikewise aid her because there was no showing that the enforcement of these issua
nces prevented her from pursuing her occupation. Her submission that she has pen
ding electoral protest before the Presidential Electoral Tribunal is likewise of
no relevance. She has not sufficiently shown that PP 1017 will affect the proce
edings or result of her case. But considering once more the transcendental impor
tance of the issue involved, this Court may relax the standing rules.
Same; Same; Same; Presidency; Parties; It is not proper to implead President Arr
oyo as respondent settled is the doctrine that the President, during his tenure of
office or actual incumbency, may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law; It will degrade
the dignity of the high office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. It is not proper to implead
President Arroyo as respondent. Settled is the doctrine that the President, dur
ing his tenure of office or actual incumbency, may not be sued in any civil or c
riminal case, and there is no need to provide for it in the Constitution or law.
It will degrade the dignity of the high office of the President, the Head of St
ate, if he can be dragged into court litigations while serving as such. Furtherm
ore, it
169
VOL. 489, MAY 3, 2006
169
is important that he be freed from any form of harassment, hindrance or distract
ion to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of t
he many great and important duties imposed upon him by the Constitution necessar
ily impairs the operation of the Government. However, this does not mean that th
e President is not accountable to anyone. Like any other official, he remains ac
countable to the people but he may be removed from office only in the mode provi
ded by law and that is by impeachment.
Presidency; Calling-Out Power; Declaration of State of National Emergency; Petit
ioners failed to show that President Arroyo s exercise of the calling-out power, b
y issuing PP 1017, is totally bereft of factual basis. As to how the Court may inq
uire into the President s exercise of power, Lansang adopted the test that judicial
inquiry can go no further than to satisfy the Court not that the President s deci
sion is correct, but that the President did not act arbitrarily. Thus, the standard
laid down is not correctness, but arbitrariness. In Integrated Bar of the Phili
ppines, this Court further ruled that it is incumbent upon the petitioner to show
that the President s decision is totally bereft of factual basis and that if he fa
ils, by way of proof, to support his assertion, then this Court cannot undertake
an independent investigation beyond the pleadings. Petitioners failed to show tha
t President Arroyo s exercise of the calling-out power, by issuing PP 1017, is tot
ally bereft of factual basis. A reading of the Solicitor General s Consolidated Co

mment and Memorandum shows a detailed narration of the events leading to the iss
uance of PP 1017, with supporting reports forming part of the records. Mentioned
are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Da
y, the defections in the military, particularly in the Philippine Marines, and t
he reproving statements from the communist leaders. There was also the Minutes o
f the Intelligence Report and Security Group of the Philippine Army showing the
growing alliance between the NPA and the military. Petitioners presented nothing
to refute such events. Thus, absent any contrary allegations, the Court is conv
inced that the President was justified in issuing PP 1017 calling for military a
id.
170
170
Same; Same; Same; In times of emergency, our Constitution reasonably demands tha
t we repose a certain amount of faith in the basic integrity and wisdom of the C
hief Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations. In the final analysis, the various approaches
to emergency of the above political theorists from Lock s theory of prerogative, to Wa
tkins doctrine of constitutional dictatorship and, eventually, to McIlwain s principle
of constitutionalism ultimately aim to solve one real problem in emergency governa
nce, i.e., that of allotting increasing areas of discretionary power to the Chie
f Executive, while insuring that such powers will be exercised with a sense of p
olitical responsibility and under effective limitations and checks. Our Constitu
tion has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, e
ndeavored to create a government in the concept of Justice Jackson s balanced power
structure. Executive, legislative, and judicial powers are dispersed to the Pres
ident, the Congress, and the Supreme Court, respectively. Each is supreme within
its own sphere. But none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the other. This syst
em does not weaken the President, it just limits his power, using the language o
f McIlwain. In other words, in times of emergency, our Constitution reasonably d
emands that we repose a certain amount of faith in the basic integrity and wisdo
m of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
Same; Same; Same; Freedom of Expression; Facial Challenges; Overbreadth Doctrine
; The overbreadth doctrine is an analytical tool developed for testing on their f
aces statutes in free speech cases, also known under the American Law as First Am
endment cases; A plain reading of PP 1017 shows that it is not primarily directe
d to speech or even speech-related conduct it is actually a call upon the AFP to p
revent or suppress all forms of lawless violence. A facial review of PP 1017, usin
g the overbreadth doctrine, is uncalled for. First and foremost, the overbreadth
doctrine is an analytical tool developed for testing on their faces statutes in f
ree speech cases, also known under the American Law as First Amendment cases. A
plain reading of PP 1017 shows that it is not primarily directed to speech or ev
en speech-related conduct. It is actually a call upon the AFP to prevent
171
VOL. 489, MAY 3, 2006
171
or suppress all forms of lawless violence. In United States v. Salerno, the US S
upreme Court held that we have not recognized an overbreadth doctrine outside the l
imited context of the First Amendment (freedom of speech).
Same; Same; Same; Same; Same; Same; The overbreadth doctrine is not intended for
testing the validity of a law that reflects legitimate state interest in maintai
ning comprehensive control over harmful, constitutionally unprotected conduct

overbr
eadth claims, if entertained at all, have been curtailed when invoked against or
dinary criminal laws that are sought to be applied to protected conduct. The overbr
eadth doctrine is not intended for testing the validity of a law that reflects le
gitimate state interest in maintaining comprehensive control over harmful, const
itutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and
rebellion are considered harmful and constitutionally unprotected conduct. In Broadr
ick v. Oklahoma, it was held: It remains a matter of no little difficulty to deter
mine when a law may properly be held void on its face and when such summary actio
n is inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of pra
ctice and that its function, a limited one at the outset, attenuates as the othe
rwise unprotected behavior that it forbids the State to sanction moves from pure
speech toward conduct and that conduct even if expressive falls within the scope of o
therwise valid criminal laws that reflect legitimate state interests in maintain
ing comprehensive controls over harmful, constitutionally unprotected conduct. T
hus, claims of facial overbreadth are entertained in cases involving statutes wh
ich, by their terms, seek to regulate only spoken words and again, that overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinar
y criminal laws that are sought to be applied to protected conduct. Here, the inc
ontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not f
ree speech, which is manifestly subject to state regulation.
Same; Same; Same; Same; Same; Same; Facial invalidation of laws is considered as
manifestly strong medicine, to be used sparingly and only as a last resort, and is g
enerally disfavored. Facial invalidation of laws is considered as manifestly strong
medicine, to be used sparingly and only as a last resort, and is generally disfavore
d ; The reason for this is obvious. Embedded in the traditional
172
172
rules governing constitutional adjudication is the principle that a person to wh
om a law may be applied will not be heard to challenge a law on the ground that
it may conceivably be applied unconstitutionally to others, i.e., in other situa
tions not before the Court. A writer and scholar in Constitutional Law explains
further: The most distinctive feature of the overbreadth technique is that it ma
rks an exception to some of the usual rules of constitutional litigation. Ordina
rily, a particular litigant claims that a statute is unconstitutional as applied
to him or her; if the litigant prevails, the courts carve away the unconstituti
onal aspects of the law by invalidating its improper applications on a case to c
ase basis. Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In overbreadth analysi
s, those rules give way; challenges are permitted to raise the rights of third p
arties; and the court invalidates the entire statute on its face, not merely as app
lied for so that the overbroad law becomes unenforceable until a properly authori
zed court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the chilling; deterrent ef
fect of the overbroad statute on third parties not courageous enough to bring su
it. The Court assumes that an overbroad law s very existence may cause others not b
efore the court to refrain from constitutionally protected speech or expression.
An overbreadth ruling is designed to remove that deterrent effect on the speech
of those third parties.
Same; Same; Same; Same; Same; Same; Void for Vagueness Doctrine; Related to the ove
rbreadth doctrine is the void for vagueness doctrine which holds that a law is facia
lly invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application, and like overbreadth, it is said that a litigan
t may challenge a statute on its face only if it is vague in all its possible ap
plications. Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted. Related to the overbreadth doctrine is the vo

id for vagueness doctrine which holds that a law is facially invalid if men of com
mon intelligence must necessarily guess at its meaning and differ as to its appl
ication. It is subject to the same principles governing overbreadth doctrine. For
one, it is also an analytical tool for testing on their faces statutes in free sp
eech cases. And like overbreadth, it is said that a litigant may challenge a sta
tute on its face only if it is vague in all its possible applications. Again, pe
titioners did not even at173
VOL. 489, MAY 3, 2006
173
tempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and appl
ication of PP 1017. Same; Same; Same; Under the calling-out power, the President
may summon the armed forces to aid him in suppressing lawless violence, invasio
n and rebellion. Under the calling-out power, the President may summon the armed f
orces to aid him in suppressing lawless violence, invasion and rebellion. This i
nvolves ordinary police action. But every act that goes beyond the President s cal
ling-out power is considered illegal or ultra vires. For this reason, a Presiden
t must be careful in the exercise of his powers. He cannot invoke a greater powe
r when he wishes to act under a lesser power. There lies the wisdom of our Const
itution, the greater the power, the greater are the limitations.
Same; Same; Same; In declaring a state of national emergency, President Arroyo d
id not only rely on Section 18, Article VII of the Constitution, a provision cal
ling on the AFP to prevent or suppress lawless violence, invasion or rebellion b
ut also relied on Section 17, Article XII, a provision on the State s extraordinar
y power to take over privately-owned public utility and business affected with p
ublic interest indeed, PP 1017 calls for the exercise of an awesome power. President
Arroyo s declaration of a state of rebellion was merely an act declaring a status o
r condition of public moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is harmless, without le
gal significance, and deemed not written. In these cases, PP 1017 is more than t
hat. In declaring a state of national emergency, President Arroyo did not only r
ely on Section 18, Article VII of the Constitution, a provision calling on the A
FP to prevent or suppress lawless violence, invasion or rebellion. She also reli
ed on Section 17, Article XII, a provision on the State s extraordinary power to t
ake over privately-owned public utility and business affected with public intere
st. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal significance, or not writt
en, as in the case of Sanlakas.
Same; Same; Same; Martial Law; PP 1017 is not a declaration of Martial Law it is p
lain therein that what the President invoked was her calling-out power. Some of th
e petitioners vehemently
174
174
maintain that PP 1017 is actually a declaration of Martial Law. It is no so. Wha
t defines the character of PP 1017 are its wordings. It is plain therein that wh
at the President invoked was her calling-out power. The declaration of Martial L
aw is a warn[ing] to citizens that the military power has been called upon by the
executive to assist in the maintenance of law and order, and that, while the em
ergency lasts, they must, upon pain of arrest and punishment, not commit any act
s which will in any way render more difficult the restoration of order and the e
nforcement of law.
Same; Same; Same; Same; A reading of PP 1017 operative clause shows that it was
lifted from Former President Marcos Proclamation No. 1081; We all know that it wa
s PP 1081 which granted President Marcos legislative powers. A reading of PP 1017
operative clause shows that it was lifted from Former President Marcos Proclamati
on No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, Preside
nt of the Philippines by virtue of the powers vested upon me by Article VII, Sec
tion 10, Paragraph (2) of the Constitution, do hereby place the entire Philippin
es as defined in Article 1, Section 1 of the Constitution under martial law and,
in my capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, preven
t or suppress all forms of lawless violence as well as any act of insurrection o
r rebellion and to enforce obedience to all the laws and decrees, orders and reg
ulations promulgated by me personally or upon my direction. We all know that it
was PP 1081 which granted President Marcos legislative power. Its enabling claus
e states: to enforce obedience to all the laws and decrees, orders and regulation
s promulgated by me personally or upon my direction. Upon the other hand, the ena
bling clause of PP 1017 issued by President Arroyo is: to enforce obedience to a
ll the laws and to all decrees, orders and regulations promulgated by me persona
lly or upon my direction.
Same; Same; Same; Presidential Decrees; President Arroyo s ordinance power is limi
ted to Executive Orders, Administrative Orders, Proclamations, Memorandum Orders
, Memorandum Circulars, and General or Special Orders she cannot issue decrees sim
ilar to those issued by Former President Marcos under PP 1081. The President is gr
anted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (A
dministrative Code of 1987). She may
175
VOL. 489, MAY 3, 2006
175
issue any of the following: Sec. 2. Executive Orders. Acts of the President provid
ing for rules of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular a
spect of governmental operations in pursuance of his duties as administrative he
ad shall be promulgated in administrative orders. Sec. 4. Proclamations. Acts of t
he President fixing a date or declaring a status or condition of public moment o
r interest, upon the existence of which the operation of a specific law or regul
ation is made to depend, shall be promulgated in proclamations which shall have
the force of an executive order. Sec. 5. Memorandum Orders. Acts of the President
on matters of administrative detail or of subordinate or temporary interest whic
h only concern a particular officer or office of the Government shall be embodie
d in memorandum orders. Sec. 6. Memorandum Circulars. Acts of the President on mat
ters relating to internal administration, which the President desires to bring t
o the attention of all or some of the departments, agencies, bureaus or offices
of the Government, for information or compliance, shall be embodied in memorandu
m circulars. Sec. 7. General or Special Orders. Acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the Philippines sh
all be issued as general or special orders. President Arroyo s ordinance power is
limited to the foregoing issuances. She cannot issue decrees similar to those is
sued by Former President Marcos under PP 1081. Presidential Decrees are laws whi
ch are of the same category and binding force as statutes because they were issu
ed by the President in the exercise of his legislative power during the period o
f Martial Law under the 1973 Constitution.
Same; Same; Same; Same; PP 1017 is unconstitutional insofar as it grants Preside
nt Arroyo the authority to promulgate decrees. This Court rules that the assailed PP
1017 is unconstitutional insofar as it grants President Arroyo the authority to
promulgate decrees. Legislative power is peculiarly within the province of the Le
gislature. Section 1, Article VI categorically states that [t]he legislative powe
r shall be vested in the Congress of the Philippines which shall consist of a Se

nate and a House of Representatives. To be sure, neither Martial Law nor a state
of rebellion nor a state of emergency can justify President Arroyo s exercise of l
egislative power by issuing decrees.
176
176
Same; Same; Same; Same; With respect to laws, President Arroyo cannot call the mil
itary to enforce or implement certain laws, such as customs laws, laws governing
family and property relations, laws on obligations and contracts and the like she
can only order the military, under PP 1017, to enforce laws pertinent to its du
ty to suppress lawless violence. As this Court stated earlier, President Arroyo ha
s no authority to enact decrees. It follows that these decrees are void and, the
refore, cannot be enforced. With respect to laws, she cannot call the military to
enforce or implement certain laws, such as customs laws, laws governing family a
nd property relations, laws on obligations and contracts and the like. She can o
nly order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Same; Same; Same; President Arroyo could validly declare the existence of a stat
e of national emergency even in the absence of a Congressional enactment but the
exercise of emergency powers, such as the taking over of privately owned public
utility or business affected with public interest, is a different matter. It may
be pointed out that the second paragraph of the above provision refers not only
to war but also to other national emergency. If the intention of the Framers of ou
r Constitution was to withhold from the President the authority to declare a stat
e of national emergency pursuant to Section 18, Article VII (calling-out power) a
nd grant it to Congress (like the declaration of the existence of a state of war
), then the Framers could have provided so. Clearly, they did not intend that Co
ngress should first authorize the President before he can declare a state of nati
onal emergency. The logical conclusion then is that President Arroyo could validl
y declare the existence of a state of national emergency even in the absence of
a Congressional enactment. But the exercise of emergency powers, such as the tak
ing over of privately owned public utility or business affected with public inte
rest, is a different matter. This requires a delegation from Congress.
Same; Same; Same; Considering that Section 17 of Article XII and Section 23 of A
rticle VI, previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers. Courts h
ave often said that constitutional provisions in pari materia are to be construe
d together. Otherwise stated, different clauses, sections, and provisions of a
177
VOL. 489, MAY 3, 2006
177
constitution which relate to the same subject matter will be construed together
and considered in the light of each other. Considering that Section 17 of Articl
e XII and Section 23 of Article VI, previously quoted, relate to national emerge
ncies, they must be read together to determine the limitation of the exercise of
emergency powers.
Same; Same; Same; Emergency Powers; Requisites for Valid Delegation; Generally,
Congress is the repository of emergency powers. Generally, Congress is the reposit
ory of emergency powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the President. Certainly, a body c
annot delegate a power not reposed upon it. However, knowing that during grave e
mergencies, it may not be possible or practicable for Congress to meet and exerc
ise 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 l
imited period only. (3) The delegation must be subject to such restrictions as t
he Congress may prescribe. (4) The emergency powers must be exercised to carry o
ut a national policy declared by Congress.
Same; Same; Same; Same; Section 17, Article XII must be understood as an aspect
of the emergency powers clause, and the taking over of private business affected
with public interest is just another facet of the emergency powers generally re
posed upon Congress Section 17 refers to Congress, not the President. Section 17, Ar
ticle XII must be understood as an aspect of the emergency powers clause. The ta
king over of private business affected with public interest is just another face
t of the emergency powers generally reposed upon Congress. Thus, when Section 17
states that the the State may, during the emergency and under reasonable terms p
rescribed by it, temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest, it refers to Cong
ress, not the President. Now, whether or not the President may exercise such pow
er is dependent on whether Congress may delegate it to him pursuant to a law pre
scribing the reasonable terms thereof.
Same; Same; Same; Same; Words and Phrases; Emergency, as a generic term, connote
s the existence of conditions suddenly intensifying the degree of existing dange
r to life or well-being beyond that
178
178
which is accepted as normal implicit in this definitions are the elements of inten
sity, variety, and perception; Emergencies, as perceived by legislature or execu
tive in the United States since 1933, have been occasioned by a wide range of si
tuations, classifiable under three (3) principal heads: a) economic, b) natural
disaster, and c) national security; Emergency, as contemplated in our Constitution
, may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood
, or other similar catastrophe of nationwide proportions or effect. Petitioner Cac
ho-Olivares, et al. contends that the term emergency under Section 17, Article XII
refers to tsunami,
typhoon, hurricane and similar occurrences. This is a limited vie
f emergency. Emergency, as a generic term, connotes the existence of conditions su
ddenly intensifying the degree of existing danger to life or well-being beyond t
hat which is accepted as normal. Implicit in this definitions are the elements o
f intensity, variety, and perception. Emergencies, as perceived by legislature o
r executive in the United States since 1933, have been occasioned by a wide rang
e of situations, classifiable under three (3) principal heads: a) economic, b) n
atural disaster, and c) national security. Emergency, as contemplated in our Const
itution, is of the same breadth. It may include rebellion, economic crisis, pest
ilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide p
roportions or effect.
Same; Same; Same; Same; While the President alone can declare a state of nationa
l emergency, however, without legislation, he has no power to take over privatel
y-owned public utility or business affected with public interest. Following our in
terpretation of Section 17, Article XII, invoked by President Arroyo in issuing
PP 1017, this Court rules that such Proclamation does not authorize her during t
he emergency to temporarily take over or direct the operation of any privately o
wned public utility or business affected with public interest without authority
from Congress. Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no power to t
ake over privately-owned public utility or business affected with public interes
t. The President cannot decide whether exceptional circumstances exist warrantin
g the take over of privately-owned public utility or business affected with publ
ic interest. Nor can he determine when such exceptional circumstances have cease
d. Likewise, without legislation, the President has no power to point out the ty
pes of businesses
179
VOL. 489, MAY 3, 2006
179
affected with public interest that should be taken over. In short, the President
has no absolute authority to exercise all the powers of the State under Section
17, Article VII in the absence of an emergency powers act passed by Congress.
Same; Same; Same; Same; One of the misfortunes of an emergency, particularly, th
at which pertains to security, is that military necessity and the guaranteed rig
hts of the individual are often not compatible. One of the misfortunes of an emerg
ency, particularly, that which pertains to security, is that military necessity
and the guaranteed rights of the individual are often not compatible. Our histor
y reveals that in the crucible of conflict, many rights are curtailed and trampl
ed upon. Here, the right against unreasonable search and seizure; the right agai
nst warrantless arrest; and the freedom of speech, of expression, of the press,
and of assembly under the Bill of Rights suffered the greatest blow.
Same; Same; Same; Judicial Review; Courts are not at liberty to declare statutes
invalid although they may be abused and misabused and may afford an opportunity
for abuse in the manner of application the validity of a statute or ordinance is
to be determined from its general purpose and its efficiency to accomplish the e
nd desired, not from its effects in a particular case. Settled is the rule that co
urts are not at liberty to declare statutes invalid although they may be abused
and misabused and may afford an opportunity for abuse in the manner of applicati
on. The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects i
n a particular case. PP 1017 is merely an invocation of the President s calling-ou
t power. Its general purpose is to command the AFP to suppress all forms of lawl
ess violence, invasion or rebellion. It had accomplished the end desired which p
rompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allow
ing the police, expressly or impliedly, to conduct illegal arrest, search or vio
late the citizens constitutional rights. Now, may this Court adjudge a law or ord
inance unconstitutional on the ground that its implementor committed illegal act
s? The answer is no. The criterion by which the validity of the statute or ordin
ance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion. This is logical. Just imagi
ne the absurdity of situations when laws maybe declared unconstitutional just be
cause the officers implementing them have acted arbitrarily. If this
180
180
were so, judging from the blunders committed by policemen in the cases passed up
on by the Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.
Same; Same; Same; General orders are acts and commands of the President in his ca
pacity as Commander-in-Chief of the Armed Forces of the Philippines they are intern
al rules issued by the executive officer to his subordinates precisely for the p
roper and efficient administration of law. President Arroyo issued G.O. No. 5 to c
arry into effect the provisions of PP 1017. General orders are acts and commands
of the President in his capacity as Commander-in-Chief of the Armed Forces of th
e Philippines. They are internal rules issued by the executive officer to his sub
ordinates precisely for the proper and efficient administration of law. Such rul
es and regulations create no relation except between the official who issues the
m and the official who receives them. They are based on and are the product of,
a relationship in which power is their source, and obedience, their object. For
these reasons, one requirement for these rules to be valid is that they must be
reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP
to immediately carry out the necessary and appropriate actions and measures to s
uppress and prevent acts of terrorism and lawless violence.
Same; Same; Same; Searches and Seizures; The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable u
nless authorized by a validly issued search warrant or warrant of arrest. The Cons
titution provides that the right of the people to be secured in their persons, ho
uses, papers and effects against unreasonable search and seizure of whatever nat
ure and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by th
e judge after examination under oath or affirmation of the complainant and the w
itnesses he may produce, and particularly describing the place to be searched an
d the persons or things to be seized. The plain import of the language of the Cons
titution is that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the f
undamental protection given by this provision is that between person and police
must stand the protec181
VOL. 489, MAY 3, 2006
181
tive authority of a magistrate clothed with power to issue or refuse to issue se
arch warrants or warrants of arrest.
Same; Same; Same; Right of Assembly; Words and Phrases; Assembly means a right on
the part of the citizens to meet peaceably for consultation in respect to public
affairs it is a necessary consequence of our republican institution and complemen
ts the right of speech; The right of the people to peaceably assemble is not to
be limited, much less denied, except on a showing of a clear and present danger
of a substantive evil that Congress has a right to prevent. Assembly means a right o
n the part of the citizens to meet peaceably for consultation in respect to publ
ic affairs. It is a necessary consequence of our republican institution and comp
lements the right of speech. As in the case of freedom of expression, this right
is not to be limited, much less denied, except on a showing of a clear and pres
ent danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right to ass
emble is not subject to previous restraint or censorship. It may not be conditio
ned upon the prior issuance of a permit or authorization from the government aut
horities except, of course, if the assembly is intended to be held in a public p
lace, a permit for the use of such place, and not for the assembly itself, may b
e validly required.
Same; Same; Same; Same; Peaceable assembly cannot be made a crime. The ringing tru
th here is that petitioner David, et al. were arrested while they were exercisin
g their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation
of that right. As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor Gene
ral, during the oral argument, failed to justify the arresting officers conduct.
In De Jonge v. Oregon, it was held that peaceable assembly cannot be made a crim
e, thus: Peaceable assembly for lawful discussion cannot be made a crime. The ho
lding of meetings for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as criminals on that s
core. The question, if the rights of free speech and peaceful assembly are not t
o be preserved, is not as to the auspices under which the meeting was held but a
s to its purpose; not as to the relations of the speakers, but whether their utt
erances transcend the
182
182
bounds of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are engaged i
n a conspiracy against the public peace and order, they may be prosecuted for th
eir conspiracy or other violations of valid laws. But it is a different matter w
hen the State, instead of prosecuting them for such offenses, seizes upon mere p
articipation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
Same; Same; Same; Same; The wholesale cancellation of all permits to rally is a
blatant disregard of the principle that freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present danger of a substa
ntive evil that the State has a right to prevent tolerance is the rule and limitati
on is the exception. On the basis of the above principles, the Court likewise cons
iders the dispersal and arrest of the members of KMU, et al. (G.R. No. 171483) u
nwarranted. Apparently, their dispersal was done merely on the basis of Malacaang s
directive canceling all permits previously issued by local government units. Th
is is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that freedom of assembly is not to be limited, much l
ess denied, except on a showing of a clear and present danger of a substantive e
vil that the State has a right to prevent. Tolerance is the rule and limitation i
s the exception. Only upon a showing that an assembly presents a clear and prese
nt danger that the State may deny the citizens right to exercise it. Indeed, resp
ondents failed to show or convince the Court that the rallyists committed acts a
mounting to lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected assemblies was el
iminated.
Same; Same; Same; Same; Under BP 880, the authority to regulate assemblies and r
allies is lodged with the local government units; When a person s right is restric
ted by government action, it behooves a democratic government to see to it that
the restriction is fair, reasonable, and according to procedure. Under BP 880, the
authority to regulate assemblies and rallies is lodged with the local governmen
t units. They have the power to issue permits and to revoke such permits after d
ue notice and hearing on the determination of the presence of clear and present
danger. Here, petitioners were not even notified and heard on the revocation of
their permits.
183
VOL. 489, MAY 3, 2006
183
The first time they learned of it was at the time of the dispersal. Such absence
of notice is a fatal defect. When a person s right is restricted by government ac
tion, it behooves a democratic government to see to it that the restriction is f
air, reasonable, and according to procedure.
Same; Same; Same; Searches and Seizures; The warrantless search of the Daily Tri
bune s offices is illegal. G.R. No. 171409, (Cacho-Olivares, et al.) presents anothe
r facet of freedom of speech i.e., the freedom of the press. Petitioners narratio
n of facts, which the Solicitor General failed to refute, established the follow
ing: first, the Daily Tribune s offices were searched without warrant; second, the
police operatives seized several materials for publication; third, the search w
as conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, t
he search was conducted in the absence of any official of the Daily Tribune exce
pt the security guard of the building; and fifth, policemen stationed themselves
at the vicinity of the Daily Tribune offices. x x x The search is illegal. Rule
126 of The Revised Rules on Criminal Procedure lays down the steps in the condu
ct of search and seizure. Section 4 requires that a search warrant be issued upo
n probable cause in connection with one specific offence to be determined person
ally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that the search of a house
, room, or any other premise be made in the presence of the lawful occupant ther
eof or any member of his family or in the absence of the latter, in the presence
of two (2) witnesses of sufficient age and discretion residing in the same loca
lity. And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be sea
rched, in which case a direction may be inserted that it be served at any time o
f the day or night. All these rules were violated by the CIDG operatives.
Same; Same; Same; Same; Freedom of the Press; The search of the Daily Tribune s of
fices also violated freedom of the press; The best gauge of a free and democrati
c society rests in the degree of freedom enjoyed by its media. The search violated
petitioners freedom of the press. The best gauge of a free and democratic societ
y rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff this Court held that As heretofore stated, the premises searched were the b
usiness and printing offices of the Metropolitan
184
184
Mail and the We Forum newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the printing a
nd publication of said newspapers were discontinued. Such closure is in the natu
re of previous restraint or censorship abhorrent to the freedom of the press gua
ranteed under the fundamental law, and constitutes a virtual denial of petitione
rs freedom to express themselves in print. This state of being is patently anathe
matic to a democratic framework where a free, alert and even militant press is e
ssential for the political enlightenment and growth of the citizenry.
Same; Same; Same; Same; Same; The search and seizure of materials for publicatio
n, the stationing of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media, are plain censorship i
t is that officious functionary of the repressive government who tells the citiz
en that he may speak only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so rash as to disobey
; The Supreme Court cannot tolerate the blatant disregard of a constitutional ri
ght even if it involves the most defiant of our citizens freedom to comment on pub
lic affairs is essential to the vitality of a representative democracy. While admi
ttedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail
and We Forum newspapers in the above case, yet it cannot be denied that the CIDG o
peratives exceeded their enforcement duties. The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily T
ribune offices, and the arrogant warning of government officials to media, are p
lain censorship. It is that officious functionary of the repressive government w
ho tells the citizen that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of punishment should he be so
rash as to disobey.Undoubtedly, the The Daily Tribune was subjected to these arb
itrary intrusions because of its anti-government sentiments. This Court cannot t
olerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential
to the vitality of a representative democracy. It is the duty of the courts to b
e watchful for the constitutional rights of the citizen, and against any stealth
y encroachments thereon. The motto should always be obsta principiis.
185
VOL. 489, MAY 3, 2006
185
Same; Same; Same; PP 1017 is constitutional insofar as it constitutes a call by
the President for the AFP to prevent or suppress lawless violence but PP 1017 s ex
traneous provisions giving the President express or implied power (1) to issue d
ecrees, (2) to direct the AFP to enforce obedience to all laws even those not re
lated to lawless violence as well as decrees promulgated by the President, and (
3) to impose standards on media or any form of prior restraint on the press, are
ultra vires and unconstitutional. The Court finds and so holds that PP 1017 is co
nstitutional insofar as it constitutes a call by the President for the AFP to pr
event or suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed earlie
r. However, PP 1017 s extraneous provisions giving the President express or implie
d power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees promulgated b
y the President; and (3) to impose standards on media or any form of prior restr
aint on the press, are ultra vires and unconstitutional. The Court also rules th
at under Section 17, Article XII of the Constitution, the President, in the abse
nce of a legislation, cannot take over privately-owned public utility and privat
e business affected with public interest.
Same; Same; Same; Words and Phrases; The words acts of terrorism found in G.O. No.
5 have not been legally defined and made punishable by Congress and should thus
be deemed deleted from the said G.O. The Court finds G.O. No. 5 valid. It is an O
rder issued by the President acting as Commander-in-Chief addressed to subalterns in
the AFP to carry out the provisions of PP 1017. Significantly, it also provides
a valid standard that the military and the police should take only the necessary a
nd appropriate actions and measures to suppress and prevent acts of lawless viol
ence. But the words acts of terrorism found in G.O. No. 5 have not been legally def
ined and made punishable by Congress and should thus be deemed deleted from the
said G.O. While terrorism has been denounced generally in media, no law has been e
nacted to guide the military, and eventually the courts, to determine the limits
of the AFP s authority in carrying out this portion of G.O. No. 5.
Same; Same; Same; It is well to remember that military power is a means to an en
d and substantive civil rights are ends in themselves; How to give the military
the power it needs to protect the Republic without unnecessarily trampling indiv
idual rights is one of the
186
186
eternal balancing tasks of a democratic state; Two vital principles of constitut
ionalism: the maintenance of legal limits to arbitrary power, and, political res
ponsibility of the government to the governed. It is well to remember that militar
y power is a means to an end and substantive civil rights are ends in themselves
. How to give the military the power it needs to protect the Republic without un
necessarily trampling individual rights is one of the eternal balancing tasks of
a democratic state. During emergency, governmental action may vary in breadth a
nd intensity from normal times, yet they should not be arbitrary as to unduly re
strain our people s liberty. Perhaps, the vital lesson that we must learn from the
theorists who studied the various competing political philosophies is that, it
is possible to grant government the authority to cope with crises without surren
dering the two vital principles of constitutionalism: the maintenance of legal l
imits to arbitrary power, and political responsibility of the government to the
governed.
PANGANIBAN, C.J., Concurring Opinion:
Presidency; Declaration of a State of National Emergency; Judicial Review; Supre
me Court; Some of those who drafted PP 1017 may be testing the outer limits of p
residential prerogatives and the perseverance of the Supreme Court in safeguardi
ng the people s constitutionally enshrined liberty. The Dissent dismisses all the Pe
titions, grants no reliefs to petitioners, and finds nothing wrong with PP 1017.
It labels the PP a harmless pronouncement an utter superfluity and denounces the pone
ncia as an immodest show of brawn that has imprudently placed the Court in the busi
ness of defanging paper tigers. Under this line of thinking, it would be perfectl
y legal for the President to reissue PP 1017 under its present language and nuan
ce. I respectfully disagree. Let us face it. Even Justice Tinga concedes that un
der PP 1017, the police to some minds
may have flirted with power. With due respect, thi
s is a masterful understatement. PP 1017 may be a paper tiger, but to borrow the c
olorful words of an erstwhile Asian leader it has nuclear teeth that must indeed b
e defanged. Some of those who drafted PP 1017 may be testing the outer limits of
presidential prerogatives and the perseverance of this Court in safeguarding th
e people s constitutionally enshrined liberty. They are playing with fire, and unl
ess prudently restrained, they may one day wittingly or unwittingly burn down th
e country. History will never forget, much less
187
VOL. 489, MAY 3, 2006
187
forgive, this Court if it allows such misadventure and refuses to strike down ab
use at its inception. Worse, our people will surely condemn the misuse of legal
hocus pocus to justify this trifling with constitutional sanctities.
YNARES-SANTIAGO, J., Concurring Opinion:
Presidency; Declaration of a State of National Emergency; Section 17, Article XI
I provision is not self-executing as to be validly invoked by the President with
out congressional authorization the President, with all the powers vested in her b
y Article VII, cannot arrogate unto herself the power to take over or direct the
operation of any privately owned public utility or business affected with publi
c interest without Congressional authorization. The use of the word State as well as
the reference to reasonable terms under Section 17, Article XII can only pertain
to Congress. In other words, the said provision is not self-executing as to be v
alidly invoked by the President without congressional authorization. The provisi
on merely declares a state economic policy during times of national emergency. A
s such, it cannot be taken to mean as authorizing the President to exercise takeo
ver powers pursuant to a declaration of a state of national emergency. The Presid
ent, with all the powers vested in her by Article VII, cannot arrogate unto hers
elf the power to take over or direct the operation of any privately owned public
utility or business affected with public interest without Congressional authori
zation. To do so would constitute an ultra vires act on the part of the Chief Ex
ecutive, whose powers are limited to the powers vested in her by Article VII, an
d cannot extend to Article XII without the approval of Congress. Thus, the Presi
dent s authority to act in times of national emergency is still subject to the lim
itations expressly prescribed by Congress. This is a featured component of the d
octrine of separation of powers, specifically, the principle of checks and balan
ces as applicable to the political branches of government, the executive and the
legislature.
Same; Same; Freedom of Speech; We should bear in mind that in a democracy, const
itutional liberties must always be accorded supreme importance in the conduct of
daily life; It is the function of speech to free men from the bondage of irrati
onal fear. It cannot be gainsaid that government action to stifle constitutional l
iberties guaranteed under the Bill of Rights cannot be preemptive in meeting any
and all perceived or potential threats to the life of the nation.
188
188
Such threats must be actual, or at least gravely imminent, to warrant government
to take proper action. To allow government to preempt the happening of any even
t would be akin to putting the cart before the horse, in a manner of speaking. Sta
te action is proper only if there is a clear and present danger of a substantive
evil which the state has a right to prevent. We should bear in mind that in a d
emocracy, constitutional liberties must always be accorded supreme importance in
the conduct of daily life. At the heart of these liberties lies freedom of spee
ch and thought not merely in the propagation of ideas we love, but more importantl
y, in the advocacy of ideas we may oftentimes loathe. As succinctly articulated
by Justice Louis D. Brandeis: Fear of serious injury cannot alone justify suppre
ssion of free speech and assembly. x x x It is the function of speech to free me
n from the bondage of irrational fears. To justify suppression of free speech th
ere must be reasonable ground to believe that the danger apprehended is imminent
. There must be reasonable ground to believe that the evil to be prevented is a
serious one. x x x But even advocacy of violation, however reprehensible morally
, is not a justification for denying free speech where the advocacy falls short
of incitement and there is nothing to indicate that the advocacy would be immedi
ately acted on. The wide difference between advocacy and incitement, between pre
paration and attempt, between assembling and conspiracy, must be borne in mind.
In order to support a finding of clear and present danger it must be shown eithe
r that immediate serious violence was to be expected or was advocated, or that t
he past conduct furnished reason to believe that such advocacy was then contempl
ated.
TINGA, J., Dissenting Opinion:
Supreme Court; Judicial Review; The majority, by its ruling, has imprudently pla
ced the Court in the business of defanging paper tigers. I regret to say that the
majority, by its ruling today, has imprudently placed the Court in the business
of defanging paper tigers. The immodest show of brawn unfortunately comes at the
expense of an exhibition by the Court of a fundamental but sophisticated unders
tanding of the extent and limits of executive powers and prerogatives, as well a
s those assigned to the judicial branch. I agree with the majority on some point
s, but I cannot join the majority opinion, as it proceeds to rule on non-justici
able issues based on fears that have not materialized, departing as they do from
the plain
189
VOL. 489, MAY 3, 2006
189
language of the challenged issuances to the extent of second-guessing the Chief
Executive. I respectfully dissent.
Presidency; Calling-Out Power; The calling-out of the police does not derive from
the commander-in-chief clause but from the power of the President as Chief Execu
tive under Section 1, Article VII, and the power of executive control under Sect
ion 18, Article VII. Insofar as PP 1017 is concerned, the calling out power is def
initely involved, in view of the directive to the Armed Forces of the Philippine
s to suppress all forms of lawless violence. But there are nuances to the calling
out power invoked in PP 1017 which the majority does not discuss. The directive t
o suppress all forms of lawless violence is addressed not only to the Armed Force
s but to the police as well. The calling out of the police does not derive from Se
ction 17, Article VII, or the commander-in-chief clause, our national police bei
ng civilian in character. Instead, the calling out of the police is sourced from
the power of the President as Chief Executive under Section 1, Article VII, and
the power of executive control under Section 18, Article VII. Moreover, while t
he permissible scope of military action is limited to acts in furtherance of sup
pressing lawless violence, rebellion, invasion, the police can be commanded by t
he President to execute all laws without distinction in light of the presidentia
l duty to execute all laws.
Same; Same; Declaration of a State of National Emergency; Neither the declaratio
n of a state of emergency under PP 1017 nor the invocation of the calling out po
wer therein authorizes warrantless arrests, searches or seizures; the infringeme
nt of the right to free expression, peaceable assembly and association and other
constitutional or statutory rights. If it cannot be made more clear, neither the
declaration of a state of emergency under PP 1017 nor the invocation of the call
ing out power therein authorizes warrantless arrests, searches or seizures; the
infringement of the right to free expression, peaceable assembly and association
and other constitutional or statutory rights. Any public officer who nonetheles
s engaged or is engaging in such extra-constitutional or extra-legal acts in the
name of PP 1017 may be subjected to the appropriate civil, criminal or administ
rative liability.
Same; Same; Same; Unlike in the 1987 Constitution, which was appropriately craft
ed with an aversion to the excesses of Marcosian martial rule, the 1935 Constitu
tion under which PP 1081 was issued
190
190
left no intervening safeguards that tempered or limited the declaration of marti
al law. Let us examine the differences between PP No. 1081 and PP 1017. First, whi
le PP 1017 merely declared the existence of a state of rebellion, an act ultimat
ely observational in character, PP 1081 placed the entire Philippines under marti
al law, an active implement that, by itself, substituted civilian governmental au
thority with military authority. Unlike in the 1986 Constitution, which was appr
opriately crafted with an aversion to the excesses of Marcosian martial rule, th
e 1935 Constitution under which PP 1081 was issued left no intervening safeguard
s that tempered or limited the declaration of martial law. Even the contrast in
the verbs used, place as opposed to declare, betrays some significance. To declare m
ay be simply to acknowledge the existence of a particular condition, while to pl
ace ineluctably goes beyond mere acknowledgement, and signifies the imposition o
f the actual condition even if it did not exist before.
Same; Same; Same; Words and Phrases; Laws and decrees in PP 1017 do not relate onl
y to those promulgated by President Arroyo, but other laws enacted by past sover
eigns, whether they be in the form of the Marcos presidential decrees, or acts e
nacted by the American Governor-General such as the Revised Penal Code. Further pr
oof that laws and decrees stand as a class distinct from orders and regulations is t
he qualifying phrase promulgated by me, which necessarily refers only to orders an
d regulations. Otherwise, PP 1017 would be ridiculous in the sense that the obed
ience to be enforced only relates to laws promulgated by President Arroyo since
she assumed office in 2001. Laws and decrees do not relate only to those promulgat
ed by President Arroyo, but other laws enacted by past sovereigns, whether they
be in the form of the Marcos presidential decrees, or acts enacted by the Americ
an Governor-General such as the Revised Penal Code. Certainly then, such a quali
fication sufficiently addresses the fears of the majority that PP 1017 somehow e
mpowers or recognizes the ability of the current President to promulgate decrees
. Instead, the majority pushes an interpretation that, if pursued to its logical
end, suggests that the President by virtue of PP 1017 is also arrogating unto h
erself, the power to promulgate laws, which are in the mold of enactments from C
ongress. Again, in this respect, the grouping of laws and decrees separately from ord
ers and regulations signifies that the President
191
VOL. 489, MAY 3, 2006
191
has not arrogated unto herself the power to issue decrees in the mold of the inf
amous Marcos decrees.
Same; The unique nature of the office affords the President the opportunity to p
rofoundly influence the public discourse, not necessarily through the enactment
or enforcement of laws, but specially by the mere expediency of taking a stand o
n the issues of the day. The unique nature of the office affords the President the
opportunity to profoundly influence the public discourse, not necessarily throu
gh the enactment or enforcement of laws, but specially by the mere expediency of
taking a stand on the issues of the day. Indeed, the President is expected to e
xercise leadership not merely through the proposal and enactment of laws, but by
making such vital stands. U.S. President Theodore Roosevelt popularized the not
ion of the presidency as a bully pulpit, in line with his belief that the Presiden
t was the steward of the people limited only by the specific restrictions and pr
ohibitions appearing in the Constitution, or impleaded by Congress under its con
stitutional powers.
Same; The President, as head of state, very well has the capacity to use the off
ice to garner support for those great national quests that define a civilization
. Yet the President is not precluded, in the exercise of such role, to be merely r
esponsive. The popular expectation in fact is of a pro-active, dynamic chief exe
cutive with an ability to identify problems or concerns at their incipience and
to respond to them with all legal means at the earliest possible time. The Presi
dent, as head of state, very well has the capacity to use the office to garner s
upport for those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put America on track to the
goal of placing a man on the moon. Those memorable presidential speeches memori
zed by schoolchildren may have not, by themselves, made operative any law, but t
hey served not only merely symbolic functions, but help profoundly influence tow
ards the right direction, the public opinion in the discourse of the times. Perh
aps there was no more dramatic example of the use of the bully pulpit for such nob
le purposes than in 1964, when an American President from Texas stood before a C
ongress populated by many powerful bigots, and fully committed himself as no oth
er President before to the cause of civil rights with his intonation of those li
nes from the civil rights anthem, we shall overcome.
192
192
Same; Declaration of a State of National Emergency; The declaration of a state o
f emergency, on premises of a looming armed threat which have hardly been disput
ed, falls within such proper functions of the President as the defender of the C
onstitution it was designed to inform the people of the existence of such a threat
, with the expectation that the citizenry would not aid or abet those who would
overturn through force the democratic government. The President as Chief Governmen
t Spokesperson of the democratic ideals is entrusted with a heady but comfortabl
e pursuit. But no less vital, if somewhat graver, is the role of the President a
s the Chief Defender of the democratic way of life. The calling out power assures
the President such capability to a great extent, yet it will not fully suffice a
s a defense of democracy. There is a need for the President to rally the people
to defend the Constitution which guarantees the democratic way of life, through
means other than coercive. I assert that the declaration of a state of emergency
, on premises of a looming armed threat which have hardly been disputed, falls w
ithin such proper functions of the President as the defender of the Constitution
. It was designed to inform the people of the existence of such a threat, with t
he expectation that the citizenry would not aid or abet those who would overturn
through force the democratic government. At the same time, the Proclamation its
elf does not violate the Constitution as it does not call for or put into operat
ion the suspension or withdrawal of any constitutional rights, or even create or
diminish any substantive rights.
Same; Same; The fact that Section 17, Article XII, is purposely ambivalent as to
whether the President may exercise the power therein with or without congressio
nal approval leads me to conclude that it is constitutionally permissible to rec
ognize exceptions, such as in extreme situations wherein obtention of congressio

nal authority is impossible or inexpedient considering the emergency. I concede th
at it is fundamentally sound to construe Section 17 as requiring congressional a
uthority or approval before the takeover under the provision may be effected. Af
ter all, the taking over of a privately owned public utility or business affecte
d with public interest would involve an infringement on the right of private ent
erprise to profit; or perhaps even expropriation for a limited period. Constitut
ionally, the taking of property can only be accomplished with due process of law
, and the enactment of appropriate legislation prescribing the terms and conditi
ons under which the President may exercise the powers of
193
VOL. 489, MAY 3, 2006
193
the State under Section 17 stands as the best assurance that due process of law
would be observed. The fact that Section 17 is purposely ambivalent as to whethe
r the President may exercise the power therein with or without congressional app
roval leads me to conclude that it is constitutionally permissible to recognize
exceptions, such as in extreme situations wherein obtention of congressional aut
hority is impossible or inexpedient considering the emergency. I thus dissent to
any proposition that such requirement is absolute under all circumstances. I ma
intain that in such extreme situations, the President may exercise such authorit
y subject to judicial review. It should be admitted that some emergencies are gr
aver and more imminent than others. It is not within the realm of impossibility
that by reason of a particularly sudden and grave emergency, Congress may not be
able to convene to grant the necessary congressional authority to the President
. Certainly, if bombs from a foreign invader are falling over Manila skies, it m
ay be difficult, not to mention unnecessarily onerous, to require convening Cong
ress before the President may exercise the functions under Section 17, Article X
II. The proposition of the majority may be desirable as the general rule, but th
e correct rule that should be adopted by the Court should not be so absolute so
as to preclude the exercise by the President of such power under extreme situati
ons.
Same; Same; In truth, the Court s pronouncement on Section 17, Article XII, is act
ually obiter. Considering that the authorized or actual takeover under Section 17,
Article XII, is not presented as a properly justiciable issue. Nonetheless, and
consistent with the general tenor, the majority has undertaken to decide this n
on-justiciable issue, and to even place their view in the dispositive portion in
a bid to enshrine it as doctrine. In truth, the Court s pronouncement on this poi
nt is actually obiter. It is hoped that should the issue become ripe for adjudic
ation before this Court, the obiter is not adopted as a precedent without the qu
alification that in extreme situations wherein congressional approval is impossi
ble or highly impractical to obtain, the powers under Section 17, Article XII ma
y be authorized by the President.
Freedom of Expression; Overbreadth Doctrine; Void for Vagueness Doctrine; The two
concepts of vagueness and overbreadth doctrines, while related, are distinct fro
m each other the doctrine of overbreadth applies generally to statutes that infrin
ge upon freedom
194
194
of speech while the void-for-vagueness doctrine applies to criminal laws, not mere
ly those that regulate speech or other fundamental constitutional right (not mer
ely those that regulate speech or other fundamental constitutional rights). As I n
oted in my Separate Opinion in Romualdez v. Sandiganbayan, 435 SCRA 371, 395-406
(2004), citing Justice Kapunan, there is a viable distinction between void for v
agueness and overbreadth which the majority sadly ignores. A view has been proffere
d that vagueness and overbreadth doctrines are not applicable to penal laws. These
two concepts, while related, are distinct from each other. On one hand, the doc
trine of overbreadth applies generally to statutes that infringe upon freedom of
speech. On the other hand, the void-for-vagueness doctrine applies to criminal la
ws, not merely those that regulate speech or other fundamental constitutional ri
ght. (not merely those that regulate speech or other fundamental constitutional
rights.) The fact that a particular criminal statute does not infringe upon free
speech does not mean that a facial challenge to the statute on vagueness ground
s cannot succeed. The distinction may prove especially crucial since there has b
een a long line of cases in American Supreme Court jurisprudence wherein penal s
tatutes have been invalidated on the ground that they were void for vagueness. As
I cited in Romualdez v. Sandiganbayan, these cases are Connally v. General Const
ruction Co., Lanzetta v. State of New Jersey, Bouie v. City of Columbia, Papachr
istou v. City of Jacksonville, Kolender v. Lawson, and City of Chicago v. Morale
s. Granting that perhaps as a general rule, overbreadth may find application onl
y in free speech cases, it is on the other hand very settled doctrine that a penal
statute regulating conduct, not speech, may be invalidated on the ground of void
for vagueness. In Romualdez, I decried the elevation of the suspect and radical
new doctrine that the void for vagueness challenge cannot apply other than in free
speech cases. My view on this point has not changed, and insofar as the ponenci
a would hold otherwise, I thus dissent.
Criminal Law; Terrorism; Even without an operative law specifically defining ter
rorism, the State already has the power to suppress and punish such acts of terr
orism, insofar as such acts are already punishable, as they almost always are, i
n our extant general penal laws. The majority correctly concludes that General Ord
er No. 5 is generally constitutional. However, they make an unnecessary distinct
ion with regard to acts of terrorism, pointing out that
195
VOL. 489, MAY 3, 2006
195
Congress has not yet passed a law defining and punishing terrorism or acts of te
rrorism. That may be the case, but does the majority seriously suggest that the
President or the State is powerless to suppress acts of terrorism until the word
terrorism is defined by law? Terrorism has a widely accepted meaning that encompa
sses many acts already punishable by our general penal laws. There are several U
nited Nations and multilateral conventions on terrorism, as well as declarations
made by the United Nations General Assembly denouncing and seeking to combat te
rrorism. There is a general sense in international law as to what constitutes te
rrorism, even if no precise definition has been adopted as binding on all nation
s. Even without an operative law specifically defining terrorism, the State alre
ady has the power to suppress and punish such acts of terrorism, insofar as such
acts are already punishable, as they almost always are, in our extant general p
enal laws. The President, tasked with the execution of all existing laws, alread
y has a sufficient mandate to order the Armed Forces to combat those acts of ter
rorism that are already punishable in our Revised Penal Code, such as rebellion,
coup d etat, murder, homicide, arson, physical injuries, grave threats, and the l
ike. Indeed, those acts which under normal contemplation would constitute terror
ism are associated anyway with or subsumed under lawless violence, which is a te
rm found in the Constitution itself. Thus long ago, the State has already seen i
t fit to punish such acts.
Declaration of a State of National Emergency; Judicial Review; Searches and Seiz
ures; The problem with directly adjudicating that the injuries inflicted on Davi
d, et al., as illegal, would be that such would have been done with undue haste,
through an improper legal avenue, without the appropriate trial of facts, and w
ithout even impleading the particular officers who effected the arrests/searches
/ seizures. I respectfully disagree with the manner by which the majority would tr
eat the void as applied argument presented by the petitioners. The majority adopts
the tack of citing three particular injuries alleged by the petitioners as infl
icted with the implementation of PP 1017. The majority analyzes the alleged inju
ries, correlates them to particular violations of the Bill of Rights, and ultima
tely concludes that such violations were illegal. The problem with this approach
is that it would forever deem the Court as a trier or reviewer at first instanc
e over questions involving the validity of warrantless arrests, searches, seizur
es and the dispersal of rallies,
196
196
all of which entail a substantial level of factual determination. I agree that P
P 1017 does not expand the grounds for warrantless arrests, searches and seizure
s or dispersal of rallies, and that the proclamation cannot be invoked before an
y court to assert the validity of such unauthorized actions. Yet the problem wit
h directly adjudicating that the injuries inflicted on David, et al., as illegal
, would be that such would have been done with undue haste, through an improper
legal avenue, without the appropriate trial of facts, and without even impleadin
g the particular officers who effected the arrests/searches/seizures.
Same; Same; Same; While the Court will not be harmed by a symbolic reaffirmation
of commitment to the principles in the Bill of Rights, it will be harmed by a r
uling that unduly and inappropriately expands the very limited function of the C
ourt as a trier of facts on first instance. I understand that the injurious acts c
omplained of by the petitioners upon the implementation of PP 1017 are a source
of grave concern. Indubitably, any person whose statutory or constitutional righ
ts were violated in the name of PP 1017 or General Order No. 5 deserves redress
in the appropriate civil or criminal proceeding, and even the minority wishes to
makes this point as emphatically clear, if not moreso, as the majority. Yet a r
uling from this Court, without the proper factual basis or prayer for remunerati
on for the injury sustained, would ultimately be merely symbolic. While the Cour
t will not be harmed by a symbolic reaffirmation of commitment to the principles
in the Bill of Rights, it will be harmed by a ruling that unduly and inappropri
ately expands the very limited function of the Court as a trier of facts on firs
t instance. Same; Same; The function of the Supreme Court is to make legal prono
uncements not based on obvious facts, but on proven facts. In my dissent in Teves v.
Sandiganbayan, 447 SCRA 309, 335-348 (2004), I alluded to the fact that our leg
al system may run counter-intuitive in the sense that the seemingly or obviously
guilty may still, after trial, be properly acquitted or exonerated; to the exte
nt that even an accused who murders another person in front of live television c
ameras broadcast to millions of sets is not yet necessarily guilty of the crime
of murder or homicide. Hence, the necessity of a proper trial so as to allow the
entire factual milieu to be presented, tested and evaluated before the court. I
n my theoretical example, the said accused should nonetheless be acquitted if th
e
197
VOL. 489, MAY 3, 2006
197
presence of exempting circumstances is established. The same principle applies i
n these cases. Certainly, we in the Court can all agree that PP 1017 cannot be i
nvoked to justify acts by the police or military officers that go beyond the Con
stitution and the laws. But the course of prudence dictates that the pronounceme
nt of such a doctrine, while enforceable in a court of law, should not yet exten
d itself to specific examples that have not yet been properly litigated. The fun
ction of this Court is to make legal pronouncements not based on obvious facts, bu
t on proven facts.
Same; By deciding non-justiciable issues and prejudging cases and controversies
without a proper trial on the merits, the majority has diminished the potency of
the Court s constitutional power in favor of rhetorical statements that afford no
quantifiable relief it is for the poet and the politician to pen beautiful paeans
to the people s rights and liberties, it is for the Court to provide for viable l
egal means to enforce and safeguard these rights and liberties. The country-wide a
ttention that the instant petitions have drawn should not make the Court lose fo
cus on its principal mission, which is to settle the law of the case. On the con
trary, the highly political nature of these petitions should serve as forewarnin
g for the Court to proceed ex abundante cautelam, lest the institution be unduly
dragged into the partisan mud. The credibility of the Court is ensured by makin
g decisions in accordance with the Constitution without regard to the individual
personalities involved; with sights set on posterity, oblivious of the popular
flavor of the day. By deciding non-justiciable issues and prejudging cases and c
ontroversies without a proper trial on the merits, the majority has diminished t
he potency of this Court s constitutional power in favor of rhetorical statements
that afford no quantifiable relief. It is for the poet and the politician to pen
beautiful paeans to the people s rights and liberties, it is for the Court to pro
vide for viable legal means to enforce and safeguard these rights and liberties.
When the passions of these times die down, and sober retrospect accedes, the de
cision of this Court in these cases will be looked upon as an extended advisory
opinion.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and Prohibition.
198
198
Pacifico A. Agabin, Neri Javier Colmenares, Remegio D. Saladero, Jr., Nenit
a C. Mahinay, Noel V. Neri, Pamela Mercado and Marvic M.V.F. Leonen for petition
ers.
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula
are necessary.1 Superior strength the use of force cannot make wrongs into rights. I
n this regard, the courts should be vigilant in safeguarding the constitutional
rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban s philosophy of liberty is thus most relevant.
He said: In cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized, th
e dispossessed and the weak. Laws and actions that restrict fundamental rights co
me to the courts with a heavy presumption against their constitutional validity. 2
These seven (7) consolidated petitions for certiorari and prohibition allege tha
t in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No.
5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discr
etion. Petitioners contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the Constitution. He
nce, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem.
How does the Constitution of a free people combine the degree of liberty, withou
t which, law be_______________
1 Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer,
Volume XIX, 1971, p. 29.
2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006
.
199
VOL. 489, MAY 3, 2006
199
comes tyranny, with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national em
ergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Phi
lippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtu
e of the powers vested upon me by Section 18, Article 7 of the Philippine Consti
tution 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 Forc
es of the Philippines, to maintain law and order throughout the Philippines, pre
vent or suppress all forms of lawless violence as well as any act of insurrectio
n or rebellion and to enforce obedience to all the laws and to all decrees, orde
rs and regulations promulgated by me personally or upon my direction; and as pro
vided in Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have consp
ired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and
the extreme Right, represented by military adventurists the historical enemies of
the democratic Philippine State who are now in a tactical alliance and engaged in
a concerted and systematic conspiracy, over a broad front, to bring down the dul
y constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
_______________
3 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 5
40-480 B.C., who propounded universal impermanence and that all things, notably
opposites are interrelated.
200
200
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 gov
ernance including hindering the growth of the economy and sabotaging the people s
confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the democ
ratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and pres
ervation of the democratic institutions and the State the primary duty of Govern
ment;
WHEREAS, the activities above-described, their consequences, ramifications and c
ollateral effects constitute a clear and present danger to the safety and the in
tegrity of the Philippine State and of the Filipino people;
On the same day, the President issued G.O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have consp
ired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and
the extreme Right, represented by military adventurists the historical enemies of
the democratic Philippine State and who are now in a tactical alliance and engage
d in a concerted and systematic conspiracy, over a broad front, to bring down th
e duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican g
overnment;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the peo
ple s confidence in the government and their faith in the future of this country;
201
VOL. 489, MAY 3, 2006
201
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the demo
cratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preserva
tion of the democratic institutions and the State the primary duty of Government
;
WHEREAS, the activities above-described, their consequences, ramifications and c
ollateral effects constitute a clear and present danger to the safety and the in
tegrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a St
ate of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
under the Constitution as President of the Republic of the Philippines, and Comm
ander-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 Ph
ilippines (AFP) and the Philippine National Police (PNP), to prevent and suppres
s acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well
as the officers and men of the AFP and PNP, to immediately carry out the necessa
ry and appropriate actions and measures to suppress and prevent acts of terroris
m and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declarin
g a state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, 2006, whi
ch were issued on the basis of Proclamation No. 1017, the Armed Forces of the Ph
ilippines (AFP) and the Philip202
202
pine National Police (PNP), were directed to maintain law and order throughout t
he Philippines, prevent and suppress all form of lawless violence as well as any
act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Phi
lippines, by virtue of the powers vested in me by law, hereby declare that the s
tate of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondent
s stated that the proximate cause behind the executive issuances was the conspir
acy among some military officers, leftist insurgents of the New People s Army (NPA
), and some members of the political opposition in a plot to unseat or assassina
te President Arroyo.4 They considered the aim to oust or assassinate the Preside
nt and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified
the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, the
re was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling o
ut the armed forces. He emphasized that none of the petitioners has shown that P
P 1017 was without factual bases. While he explained that it is not respondents t
ask to state the facts behind the questioned Proclamation, however, they are pre
senting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmi
ento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indi
cted in the Oakwood mutiny, escaped their detention cell in Fort
_______________
4 Respondents Comment dated March 6, 2006.
203
VOL. 489, MAY 3, 2006
203
Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and
to elude arrest at all costs. They called upon the people to show and proclaim ou
r displeasure at the sham regime. Let us demonstrate our disgust, not only by go
ing to the streets in protest, but also by wearing red bands on our left arms. 5
On February 17, 2006, the authorities got hold of a document entitled Oplan Hackl
e I which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected t
argets including some cabinet members and President Arroyo herself.6 Upon the ad
vice of her security, President Arroyo decided not to attend the Alumni Homecomi
ng. The next day, at the height of the celebration, a bomb was found and detonat
ed at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Ba
tangas province. Found in his possession were two (2) flash disks containing min
utes of the meetings between members of the Magdalo Group and the National Peopl
e s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies
of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZ
RH that the Magdalo s D-Day would be on February 24, 2006, the 20th Anniversary of
Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that memb
ers of the PNP- Special Action Force were planning to defect. Thus, he immediate
ly ordered SAF Commanding General Marcelino Franco, Jr. to disavow any defection.
The latter promptly obeyed and issued a public statement: All SAF units are under
the effective control of
_______________
5 Ibid.
6 Ibid.
7 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex
of Respondents Consolidated Comment.
204
204
responsible and trustworthy officers with proven integrity and unquestionable lo
yalty.
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquino s brother, businessmen and mid-level government officials plotted move
s to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine repor
ted that Pastor Saycon, longtime Arroyo critic, called a U.S. government officia
l about his group s plans if President Arroyo is ousted. Saycon also phoned a man
codenamed Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Ar
my s elite Scout Ranger. Lim said it was all systems go for the planned movement ag
ainst Arroyo. 8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Gen
eroso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and a
rmed component to the Anti-Arroyo protests to be held on February 24, 2005. Acco
rding to these two (2) officers, there was no way they could possibly stop the s
oldiers because they too, were breaking the chain of command to join the forces
foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of B
/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headqua
rters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary w
ork within the military and the police establishments in order to forge alliance
s with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal declar
ed: The Communist Party and revolutionary movement and the entire people look for
ward to the possibility in the coming year of accomplishing its immediate task o
f bringing
_______________
8 Respondents
205
Consolidated Comment.
VOL. 489, MAY 3, 2006

205
down the Arroyo regime; of rendering it to weaken and unable to rule that it wil
l not take much longer to end it. 9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (N
DF) at North Central Mindanao, publicly announced: Anti-Arroyo groups within the
military and police are growing rapidly, hastened by the economic difficulties s
uffered by the families of AFP officers and enlisted personnel who undertake cou
nter-insurgency operations in the field. He claimed that with the forces of the n
ational democratic movement, the anti-Arroyo conservative political parties, coa
litions, plus the groups that have been reinforcing since June 2005, it is proba
ble that the President s ouster is nearing its concluding stage in the first half
of 2006.
Respondents further claimed that the bombing of telecommunication towers and cel
l sites in Bulacan and Bataan was also considered as additional factual basis fo
r the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in B
enguet resulting in the death of three (3) soldiers. And also the directive of t
he Communist Party of the Philippines ordering its front organizations to join 5
,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.1
0
By midnight of February 23, 2006, the President convened her security advisers a
nd several cabinet members to assess the gravity of the fermenting peace and ord
er situation. She directed both the AFP and the PNP to account for all their men
and ensure that the chain of command remains solid and undivided. To protect th
e young students from any possible trouble that might break loose on the streets
, the President suspended classes in all levels in the entire National Capital R
egion.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.
_______________
9 Ibid.
10 Ibid.
206
206
Immediately, the Office of the President announced the cancellation of all progr
ams and activities related to the 20th anniversary celebration of Edsa People Po
wer I; and revoked the permits to hold rallies issued earlier by the local gover
nments. Justice Secretary Raul Gonzales stated that political rallies, which to
the President s mind were organized for purposes of destabilization, are cancelled
. Presidential Chief of Staff Michael Defensor announced that warrantless arrests
and take-over of facilities, including media, can already be implemented. 11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National F
ederation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various p
arts of Metro Manila with the intention of converging at the EDSA shrine. Those
who were already near the EDSA site were violently dispersed by huge clusters of
anti-riot police. The well-trained policemen used truncheons, big fiber glass s
hields, water cannons, and tear gas to stop and break up the marching groups, an
d scatter the massed participants. The same police action was used against the p
rotesters marching forward to Cubao, Quezon City and to the corner of Santolan S
treet and EDSA. That same evening, hundreds of riot policemen broke up an EDSA c
elebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati Cit
y.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the groun
d for the dispersal of their assemblies. During the dispersal of the rallyists a
long EDSA, police arrested (without warrant) petitioner Randolf S. David, a prof
essor at the University of the Philippines and newspaper
_______________
11 Petition in G.R. No. 171396, p. 5.
12 Police action in various parts of Metro Manila and the reactions of the huge
crowds being dispersed were broadcast as breaking news by the major television sta
tions of this country.
207
VOL. 489, MAY 3, 2006
207
columnist. Also arrested was his companion, Ronald Llamas, president of party-li
st Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Cri
minal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 10
17 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures, and mock-ups of the
Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside t
he editorial and business offices of the newspaper; while policemen from the
Manila Police District were stationed outside the building.13 A few minutes afte
r the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, t
he tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is meant to
show a strong presence, to tell media outlets not to connive or do anything that w
ould help the rebels in bringing down this government. The PNP warned that it wou
ld take over any media organization that would not follow standards set by the go
vernment during the state of national emergency. Director General Lomibao stated
that if they do not follow the standards and the standards are if they would contribu
te to instability in the government, or if they do not subscribe to what is in G
eneral Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecomm
unications Commissioner Ronald Solis urged television and radio networks to cooper
ate with the government for the duration of the state of national emergency. He a
sked for balanced reporting from broadcasters when covering the events surrounding
the coup attempt foiled by the government. He warned that his agency will not h
esitate to recommend the closure of any broadcast outfit that violates rules
_______________
208
208
set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, rep
resenting the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while lea
ving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltran s lawyer explained that the warrant, which stemmed from a case of in
citing to rebellion filed during the Marcos regime, had long been quashed. Beltr
an, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were to
ld they could not be admitted because of PP 1017 and G.O. No. 5. Two members wer
e arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary, w
as arrested while with his wife and golfmates at the Orchard Golf and Country Cl
ub in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representati
ve Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Represent
ative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL
Ticket Office in Davao City. Later, he was turned over to the custody of the Ho
use of Representatives where the Batasan 5 decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Re
presentatives Beltran, Satur Ocampo, et al., are not being raised in these petit
ions.
_______________
14 Ibid.
209
VOL. 489, MAY 3, 2006
209
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of na
tional emergency has ceased to exist. In the interim, these seven (7) petitions
challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these petitions implead
ed President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a
subterfuge to avoid the constitutional requirements for the imposition of marti
al law; and (3) it violates the constitutional guarantees of freedom of the pres
s, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDG s act of raiding the Daily Tribune offices as a clear ca
se of censorship or prior restraint. They also claimed that the term emergency refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is abso
lutely no emergency that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escu
dero, and twenty one (21) other members of the House of Representatives, includi
ng Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Jo
sel Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of l
egislative powers ; violation of freedom of expression and a declaration of martial l
aw. They alleged that President Arroyo gravely abused her discretion in calling ou
t the armed forces without clear and verifiable factual basis of the possibility
of lawless violence and a showing that there is necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that P
P 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto Presid
ent Arroyo the power to enact laws and decrees; (2) their issuance was without f
actual basis; and (3) they violate freedom of
210
210
expression and the right of the people to peaceably assemble to redress their gr
ievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that
PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415
of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319
of Article VI, and (d) Section 1720 of Article XII of the Constitution.
_______________
15 The prime duty of the Government is to serve and protect the people. The Gove
rnment may call upon the people to defend the State and, in the fulfillment ther
eof, all citizens may be required, under conditions provided by law, to render p
ersonal military or civil service.
16 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.
17 The right of the people to be secure in their persons, houses, papers, and ef
fects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall is
sue except upon probable cause to be determined personally by the judge after ex
amination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
18 No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the Gov
ernment for redress of grievances.
19 (1) The Congress, by a vote of two-thirds of both Houses in joint session ass
embled, voting separately, shall have the sole power to declare the existence of
a state of war.
(2) In times of war or other national emergency, the Congress may, by law, autho
rize 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 n
ational policy. Unless sooner withdrawn by resolution of the Congress, such powe
rs shall cease upon the next adjournment thereof.
20 In times of national emergency, when the public interest so requires, the Sta
te may, during the emergency and under reasonable terms prescribed by it, tempor
arily take over or direct the operation
211
VOL. 489, MAY 3, 2006
211
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz, et al., alleged that PP 1
017 is an arbitrary and unlawful exercise by the President of her Martial Law pow
ers. And assuming that PP 1017 is not really a declaration of Martial Law, petiti
oners argued that it amounts to an exercise by the President of emergency powers
without congressional approval. In addition, petitioners asserted that PP 1017 goe
s beyond the nature and function of a proclamation as defined under the Revised
Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1
017 and G.O. No. 5 are unconstitutional for being violative of the freedom of exp
ression, including its cognate rights such as freedom of the press and the right
to access to information on matters of public concern, all guaranteed under Art
icle III, Section 4 of the 1987 Constitution. In this regard, she stated that the
se issuances prevented her from fully prosecuting her election protest pending b
efore the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first,
the petitions should be dismissed for being moot; second, petitioners in G.R. N
os. 171400 (ALGI), 171424 (Legarda), 171483 (KMU, et al.), 171485 (Escudero, et
al.) and 171489 (Cadiz, et al.) have no legal standing; third, it is not necessa
ry for petitioners to implead President Arroyo as respondent; fourth, PP 1017 ha
s constitutional and legal basis; and fifth, PP 1017 does not violate the people s
right to free expression and redress of grievances. On March 7, 2006, the Court
conducted oral arguments and heard the parties on the above interlocking issues
which may be summarized as follows:
_______________
of any privately owned public utility or business affected with public interest.
212
212
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero, et al.), G.R. Nos. 171400 (ALGI), 17
1483 (KMU, et al.), 171489 (Cadiz, et al.), and 171424 (Legarda) have legal stan
ding.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept rest
s on the extraordinary simple foundation
The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national gov
ernment. x x x If the government consciously or unconsciously oversteps these li
mitations there must be some authority competent to hold it in control, to thwar
t its unconstitutional attempt, and thus to vindicate and preserve inviolate the
will of the people as expressed in
_______________
211 Cranch 137 [1803].
213
VOL. 489, MAY 3, 2006
213
the Constitution. This power the courts exercise. This is the beginning and the
end of the theory of judicial review. 22
But the power of judicial review does not repose upon the courts a self-starting
capacity. 23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioner
s have to raise a question of constitutionality; third, the constitutional quest
ion must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itsel
f.24
Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite le
gal claims susceptible of judicial resolution. It is definite and concrete, touch
ing the legal relations of parties having adverse legal interest; a real and subs
tantial controversy admitting of specific relief.25 The Solicitor General refute
s the existence of such actual case or controversy, contending that the present
petitions were rendered moot and academic by President Arroyo s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events,26 so
_______________
22 Howard L. MacBain, Some Aspects of Judicial Review, Bacon Lectures on the Const
itution of the United States (Boston: Boston University Heffernan Press, 1939),
pp. 376-77.
23 The Court has no self-starting capacity and must await the action of some lit
igant so aggrieved as to have a justiciable case. (Shapiro and Tresolini, Americ
an Constitutional Law, Sixth Edition, 1983, p. 79).
24 Cruz, Philippine Political Law, 2002 Ed., p. 259.
25 Ibid.
26 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
214
214
that a declaration thereon would be of no practical use or value.27 Generally, c
ourts decline jurisdiction over such case28 or dismiss it on ground of mootness.
29
The Court holds that President Arroyo s issuance of PP 1021 did not render the pre
sent petitions moot and academic. During the eight (8) days that PP 1017 was ope
rative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they ju
stify these alleged illegal acts? These are the vital issues that must be resolv
ed in the present petitions. It must be stressed that an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no protection;
it is in legal contemplation, inoperative. 30
The moot and academic principle is not a magical formula that can automatically di
ssuade the courts in resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the Constitution;31 secon
d, the exceptional character of the situation and the paramount public interest
is involved;32 third, when constitutional issue raised requires formulation of c
ontrolling principles to guide
_______________
27 Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, Mar
ch 10, 2004, 425 SCRA 129; Vda. de Dabao v. Court of Appeals, G.R. No. 1165, Mar
ch 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, Novem
ber 11, 2003, 415 SCRA 590.

28 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, Janu
ary 26, 2004, 421 SCRA 21; Vda. de Dabao v. Court of Appeals, supra.
29 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
30 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S
. 425.
31 Province of Batangas v. Romulo, supra.
32 Lacson v. Perez, supra.
215
VOL. 489, MAY 3, 2006
215
the bench, the bar, and the public;33 and fourth, the case is capable of repetit
ion yet evading review.34
All the foregoing exceptions are present here and justify this Court s assumption
of jurisdiction over the instant petitions. Petitioners alleged that the issuanc
e of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that
the issues being raised affect the public s interest, involving as they do the pe
ople s basic rights to freedom of expression, of assembly and of the press. Moreov
er, the Court has the duty to formulate guiding and controlling constitutional p
recepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.35 And lastly, respo
ndents contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited C
hief Justice Artemio V. Panganiban s Separate Opinion in Sanlakas v. Executive Sec
retary.36 However, they failed to take into account the Chief Justice s very state
ment that an otherwise moot case may still be decided provided the party raising it
in a proper case has been and/or continues to be prejudiced or damaged as a dir
ect result of its issuance. The present case falls right within this exception to
the mootness rule pointed out by the Chief Justice.
_______________
33 Province of Batangas v. Romulo, supra.
34 Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98;
Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577; Sanlakas v.
Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
35 Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
36 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
216
216
II Legal Standing
In view of the number of petitioners suing in various personalities, the Court d
eems it imperative to have a more than passing discussion on legal standing or l
ocus standi.
Locus standi is defined as a right of appearance in a court of justice on a given
question. 37 In private suits, standing is governed by the real-parties-in interes
t rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that every action must be prosecuted or defended in the nam
e of the real party in interest. Accordingly, the real-party-in-interest is the part
y who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit. 38 Succinctly put, the plaintiff s standing is
based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the pla
intiff who asserts a public right in assailing an allegedly illegal official actio
n, does so as a representative of the general public. He may be a person who is

affected no differently from any other person. He could be suing as a stranger, or
in the category of a citizen, or taxpayer. In either case, he has to adequately sho
w that he is entitled to seek judicial protection. In other words, he has to mak
e out a sufficient interest in the vindication of the public order and the secur
ing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in publ
ic actions. The distinction was first laid down in Beauchamp v. Silk,39 where it
was held that the plaintiff in a taxpayer s suit is in a different category from
the plaintiff in a citizen s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in
_______________
37 Black s Law Dictionary, 6th Ed. 1991, p. 941.
38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
39 275 Ky 91, 120 SW2d 765 (1938).
217
VOL. 489, MAY 3, 2006
217
the latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins:40 In matter of mere publ
ic right, however . . . the people are the real parties . . . It is at least the
right, if not the duty, of every citizen to interfere and see that a public off
ence be properly pursued and punished, and that a public grievance be remedied. W
ith respect to taxpayer s suits, Terr v. Jordan41 held that the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of p
ublic funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the ac
tivities of governmental agencies engaged in public service, the United States S
upreme Court laid down the more stringent direct injury test in Ex Parte Levitt,42
later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a priva
te individual to invoke the judicial power to determine the validity of an execu
tive or legislative action, he must show that he has sustained a direct injury a
s a result of that action, and it is not sufficient that he has a general intere
st common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera,4
4 it held that the person who impugns the validity of a statute must have a perso
nal and substantial interest in the case such that he has sustained, or will sus
tain direct injury as a result. The Vera doctrine was upheld in a litany of cases
, such as, Custodio v.
_______________
40 19 Wend. 56 (1837).
41 232 NC 48, 59 SE2d 359 (1950).
42 302 U.S. 633.
43 318 U.S. 446.
44 65 Phil. 56 (1937).
218
218
President of the Senate,45 Manila Race Horse Trainers Association v. De la Fuente
,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philip
pines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi m
ay be waived by the Court in the exercise of its discretion. This was done in th
e 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the transcendental i

mportance of the cases prompted the Court to act liberally. Such liberality was n
either a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to p
ass upon the issues raised due to the far-reaching implications of the petition no
twithstanding its categorical statement that petitioner therein had no personali
ty to file the suit. Indeed, there is a chain of cases where this liberal policy
has been observed, allowing ordinary citizens, members of Congress, and civic o
rganizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.51
_______________
45 G.R. No. 117, November 7, 1945 (Unreported).
46 G.R. No. 2947, January 11, 1959 (Unreported).
47 110 Phil. 331 (1960).
48 77 Phil. 1012 (1947).
49 84 Phil. 368 (1949) The Court held: Above all, the transcendental importance t
o the public of these cases demands that they be settled promptly and definitely
, brushing aside, if we must, technicalities of procedure.
50 L-No. 40004, January 31, 1975, 62 SCRA 275.
51 Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court
held that where the question is one of public duty and the enforcement of a publ
ic right, the people are the real party in interest, and it is sufficient that t
he petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530,
where the Court held that in cases involving an assertion of a public right, th
e requirement of personal interest is satisfied by the mere fact that the petiti
oner is a citizen and part of the general public which possesses the right.
219
VOL. 489, MAY 3, 2006
219
Thus, the Court has adopted a rule that even where the petitioners have failed t
o show direct injury, they have been
_______________
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81
311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpay
ers lack of personality to sue may be disregarded in determining the validity of
the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court he
ld that while no expenditure of public funds was involved under the questioned c
ontract, nonetheless considering its important role in the economic development
of the country and the magnitude of the financial consideration involved, public
interest was definitely involved and this clothed petitioner with the legal per
sonality under the disclosure provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Ref
orm, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that whi
le petitioners are strictly speaking, not covered by the definition of a proper p
arty, nonetheless, it has the discretion to waive the requirement, in determining
the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, wher
e the Court held that it enjoys the open discretion to entertain taxpayer s suit o
r not and that a member of the Senate has the requisite personality to bring a s
uit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the C
ourt held that petitioner as a taxpayer, has the personality to file the instant
petition, as the issues involved, pertains to illegal expenditure of public mon
ey;
Osmea v. Comelec, G.R. No. 100318, 100308, 100417, 100420, July 30, 1991, 199 SCR
A 750, where the Court held that where serious constitutional questions are invo
lved, the transcendental importance to the public of the cases involved demands th
at they be settled promptly and definitely, brushing aside technicalities of pro
cedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court
held that the importance of the issues involved concerning as it does the politi
cal exercise of qualified voters affected
220
220
allowed to sue under the principle of transcendental importance. Pertinent are the
following cases:
(1)Chavez v. Public Estates Authority,52 where the Court ruled that the enforcem
ent of the constitutional right to information and the equitable diffusion of na
tural resources are matters of transcendental importance which clothe the petiti
oner with locus standi;
(2)Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that given the
transcendental importance of the issues involved, the Court may relax the standi
ng requirements and allow the suit to prosper despite the lack of direct injury
to the parties seeking judicial review of the Visiting Forces Agreement;
(3)Lim v. Executive Secretary,54 while the Court noted that the petitioners may
not file suit in their capacity as taxpayers absent a showing that Balikatan 02-0
1 involves the exercise of Congress taxing or spending powers, it reiterated its r
uling in Bagong Alyansang Makabayan v. Zamora,55 that in cases of transcendental
importance, the cases must be settled promptly and definitely and standing requ
irements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by t
his Court. Taxpayers, voters, concerned citizens, and legislators may be accorde
d standing to sue, provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional;
_______________
by the apportionment, necessitates the brushing aside of the procedural requirem
ent of locus standi.
52 G.R. No. 133250, July 9, 2002, 384 SCRA 152.
53 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA
449.
54 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
55 Supra.
221
VOL. 489, MAY 3, 2006
221
(3) for voters, there must be a showing of obvious interest in the validity of t
he election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are o
f transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained o
f infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court s attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan a
s a people s organization does not give it the requisite personality to question t
he validity of the on-line lottery contract, more so where it does not raise any
issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any al
legation that public funds are being misused. Nor can it sue as a concerned citi
zen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comele
c,57 the Court reiterated the direct injury test with respect to concerned citizen
s cases involving constitutional issues. It held that there must be a showing that
the citizen personally suffered some actual or threatened injury arising from t
he alleged illegal official act.
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demo
kratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstr
ated any injury to itself or to its leaders, members or supporters.
_______________
56 G.R. No. 118910, November 16, 1995, 250 SCRA 130.
57 G.R. No. 132922, April 21, 1998, 289 SCRA 337.
58 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
222
222
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the Preside
nt s declaration of a state of rebellion is a usurpation of the emergency powers o
f Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be d
evoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llama
s, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cac
ho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury resulting f
rom illegal arrest and unlawful search committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of l
egislative powers. They also raised the issue of whether or not the concurrence
of Congress is necessary whenever the alarming powers incident to Martial Law ar
e used. Moreover, it is in the interest of justice that those affected by PP 101
7 can be represented by their Congressmen in bringing to the attention of the Co
urt the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,62 Basco v. Philippine Amusement and Gam_______________
59 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
60 235 SCRA 506 (1994).
61 Supra.
62 Supra.
223
VOL. 489, MAY 3, 2006
223
ing Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public r
ight, it is sufficient that the petitioner is a citizen and has an interest in t
he execution of the laws.
In G.R. No. 171483, KMU s assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal standing. Organi
zations may be granted standing to assert the rights of their members.65 We take
judicial notice of the announcement by the Office of the President banning all
rallies and canceling all permits for public assemblies following the issuance o
f PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz, et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed t
o allege any direct or potential injury which the IBP as an institution or its m
embers may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5
. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this ca
se. This is too general an interest which is shared by other groups and the whol
e citizenry. However, in view of the transcendental importance of the issue, thi
s Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the i
nstant petition as there are no allegations of illegal disbursement of public fu
nds. The fact that she is a former Senator is of no consequence. She can no long
er sue as a legislator on the allegation that her prerogatives as a lawmaker hav
e been impaired by PP 1017 and G.O. No. 5. Her
_______________
63 197 SCRA 52, 60 (1991).
64 Supra.
65 See NAACP v. Alabama, 357 U.S. 449 (1958).
66 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
224
224
claim that she is a media personality will not likewise aid her because there wa
s no showing that the enforcement of these issuances prevented her from pursuing
her occupation. Her submission that she has pending electoral protest before th
e Presidential Electoral Tribunal is likewise of no relevance. She has not suffi
ciently shown that PP 1017 will affect the proceedings or result of her case. Bu
t considering once more the transcendental importance of the issue involved, thi
s Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corolla
ry to the bigger question of proper exercise of judicial power. This is the unde
rlying legal tenet of the liberality doctrine on legal standing. It cannot be doub
ted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To paraphrase Justice Laurel
, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application
of the transcendental importance doctrine, a relaxation of the standing requireme
nts for the petitioners in the PP 1017 cases.
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settle
d is the doctrine that the President, during his tenure of office or actual incu
mbency,67 may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the h
igh office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form
_______________
67 From the deliberations of the Constitutional Commission, the intent of the fr
amers is clear that the immunity of the President from suit is concurrent only w
ith his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2
, 2004 Ed., p. 302).
225
VOL. 489, MAY 3, 2006

225
of harassment, hindrance or distraction to enable him to fully attend to the per
formance of his official duties and functions. Unlike the legislative and judici
al branch, only one constitutes the executive branch and anything which impairs
his usefulness in the discharge of the many great and important duties imposed u
pon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Li
ke any other official, he remains accountable to the people68 but he may be remo
ved from office only in the mode provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessa
ry for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President s exe
rcise of his Commander-in-Chief power has reached its distilled point from the ind
ulgent days of Barcelon v. Baker70 and Montenegro v. Castaeda71 to the volatile e
ra of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile
.74 The tug-of-war always cuts across the line defining political questions, parti
cularly
_______________
68 Section 1, Article XI of the Constitution provides: Public Office is a public
trust. Public officers and employees must at all times be accountable to the pe
ople, serve them with utmost responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead modest lives.
69 Ibid., Sec. 2.
70 No. 2908, 5 SCRA 87.
71 91 Phil. 882 (1952).
72 No. L-33964, December 11, 1971, 42 SCRA 448.
73 No. L-35546, September 17, 1974, 59 SCRA 183.
74 No. L-61388, April 20, 1983, 121 SCRA 472.
226
226
those questions in regard to which full discretionary authority has been delegate
d to the legislative or executive branch of the government. 75 Barcelon and Monten
egro were in unison in declaring that the authority to decide whether an exigenc
y has arisen belongs to the President and his decision is final and conclusive o
n the courts.Lansang took the opposite view. There, the members of the Court wer
e unanimous in the conviction that the Court has the authority to inquire into t
he existence of factual bases in order to determine their constitutional suffici
ency. From the principle of separation of powers, it shifted the focus to the sy
stem of checks and balances, under which the President is supreme, x x x only if
and when he acts within the sphere allotted to him by the Basic Law, and the aut
hority to determine whether or not he has so acted is vested in the Judicial Dep
artment, which in this respect, is, in turn, constitutionally supreme. 76 In 1973,
the unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Co
urt was almost evenly divided on the issue of whether the validity of the imposi
tion of Martial Law is a political or justiciable question.78 Then came Garcia_______________
75 Taada v. Cuenco, 103 Phil. 1051 (1957).
76 Lansang v. Garcia, supra, pp. 473 and 481.
77 Supra.
78 Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position
that the proclamation of martial law and the arrest and detention orders accomp
anying the proclamation posed a political question beyond the jurisdiction of the
Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernande
z, and Aquino, argued that the Constitution had deliberately set up a strong pre
sidency and had concentrated powers in times of emergency in the hands of the Pr
esident and had given him broad authority and discretion which the Court was bou
nd to respect. He made reference to the decision in Lansang v. Garcia but read i
t as in effect upholding the political question position. Fernandez, in a separate
opinion, also argued Lansang, even understood as giving a narrow scope of revie
w authority to the Court, affirmed
227
VOL. 489, MAY 3, 2006
227
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a nee
d to re-examine the latter case, ratiocinating that in times of war or national e
mergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is answe
rable only to his conscience, the People, and God. 79
The Integrated Bar of the Philippines v. Zamora80 a recent case most pertinent to
these cases at bar echoed a principle similar to Lansang. While the Court consider
ed the President s calling-out power as a discretionary power solely vested in his w
isdom, it stressed that this does not prevent an examination of whether such powe
r was exercised within permissible constitutional limits or whether it was exerc
ised in a manner constituting grave abuse of discretion. This ruling is mainly a
result of the Court s reliance on Section 1, Article VIII of 1987 Constitution whi
ch fortifies the authority of the courts to determine in an appropriate action t
he validity of the acts of the political departments. Under the new definition o
f judicial power, the courts are authorized not only to settle actual controversi
es involving rights which are legally demandable and enforce_______________
the impossible task of checking the action taken by the President. Hence, he advoc
ated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonmen
t of Lansang and a return to Barcelon. And, although Justices Castro, Fernando,
Muoz-Palma, and, implicitly, Teehankee, lined up on the side of justiciability as
enunciated in Lansang, x x x Barredo, however, wanted to have the best of both
worlds and opted for the view that political questions are not per se beyond the
Court s jurisdiction . . . but that as a matter of policy implicit in the Constitu
tion itself the Court should abstain from interfering with the Executive s Proclam
ation. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Comme
ntary, 1996 Edition, p. 794.)
79 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamor
a, supra.
80 Supra.
228
228
able, but also to determine whether or not there has been a grave abuse of discret
ion amounting to lack or excess of jurisdiction on the part of any branch or ins
trumentality of the government. The latter part of the authority represents a bro
adening of judicial power to enable the courts of justice to review what was bef
ore a forbidden territory, to wit, the discretion of the political departments o
f the government.81 It speaks of judicial prerogative not only in terms of power
but also of duty.82
As to how the Court may inquire into the President s exercise of power, Lansang ad
opted the test that judicial inquiry can go no further than to satisfy the Court
not that the President s decision is correct, but that the President did not act arb
itrarily. Thus, the standard laid down is not correctness, but arbitrariness.83 I
n Integrated Bar of the Philippines, this Court further ruled that it is incumben
t upon the petitioner to show that the President s decision is totally bereft of f
actual basis and that if he fails, by way of proof, to support his assertion, the
n this Court cannot undertake an independent investigation beyond the pleadings.
Petitioners failed to show that President Arroyo s exercise of the calling-out pow
er, by issuing PP 1017, is totally bereft of factual basis. A reading of the Sol
icitor General s Consolidated Comment and Memorandum shows a detailed narration of
the events leading to the issuance of PP 1017, with supporting reports forming
part of the records. Mentioned are the escape of the Magdalo Group, their audaci
ous threat of the Magdalo D-Day, the defections in the military, particularly in
the Philippine Marines, and the reproving statements from the communist leaders
. There was also the Minutes of
_______________
81 Cruz, Philippine Political Law, 2002 Ed., p. 247.
82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
83 Supra, pp. 481-482.
229
VOL. 489, MAY 3, 2006
229
the Intelligence Report and Security Group of the Philippine Army showing the gr
owing alliance between the NPA and the military. Petitioners presented nothing t
o refute such events. Thus, absent any contrary allegations, the Court is convin
ced that the President was justified in issuing PP 1017 calling for military aid
.
Indeed, judging the seriousness of the incidents, President Arroyo was not expec
ted to simply fold her arms and do nothing to prevent or suppress what she belie
ved was lawless violence, invasion or rebellion. However, the exercise of such p
ower or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject the power of the President in times
of emergency. A glimpse at the various political theories relating to this subj
ect provides an adequate backdrop for our ensuing discussion. John Locke, descri
bing the architecture of civil government, called upon the English doctrine of p
rerogative to cope with the problem of emergency. In times of danger to the nati
on, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these si
tuations, the Crown retained a prerogative power to act according to discretion f
or the public good, without the proscription of the law and sometimes even again
st it. 84 But Locke recognized that this moral restraint might not suffice to avoi
d abuse of prerogative powers. Who shall judge the need for resorting to the pre
rogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting
_______________
84 Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
230
230
that the people have no other remedy in this, as in all other cases where they ha
ve no judge on earth, but to appeal to Heaven. 85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democrat
ic processes of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to c
ircumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State . . .
It is wrong therefore to wish to make political institutions as strong as to ren
der it impossible to suspend their operation. Even Sparta allowed its law to lap
se . . .
If the peril is of such a kind that the paraphernalia of the laws are an obstacl
e to their preservation, the method is to nominate a supreme lawyer, who shall s
ilence all the laws and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear that the people s fir
st intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or supreme magistrac
y as he termed it. For him, it would more likely be cheapened by indiscreet use. He
was unwilling to rely upon an appeal to heaven. Instead, he relied upon a tenure
of office of prescribed duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: I am
far from condemning, in cases of extreme necessity, the assumption of absolute p
ower in the form of a temporary dictatorship. 88
_______________
85 Ibid.
86 The Social Contract (New York: Dutton, 1950), pp. 123-124.
87 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
88 Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
231
VOL. 489, MAY 3, 2006
231
Nicollo Machiavelli s view of emergency powers, as one element in the whole scheme
of limited government, furnished an ironic contrast to the Lockean theory of pr
erogative. He recognized and attempted to bridge this chasm in democratic politi
cal theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-c
onstitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good object
s, they will in a little while be disregarded under that pretext but for evil pu
rposes. Thus, no republic will ever be perfect if she has not by law provided fo
r everything, having a remedy for every emergency and fixed rules for applying i
t. 89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the co
nstitution a regularized system of standby emergency powers to be invoked with s
uitable checks and controls in time of national danger. He attempted forthrightl
y to meet the problem of combining a capacious reserve of power and speed and vi
gor in its application in time of emergency, with effective constitutional restr
aints.90
Contemporary political theorists, addressing themselves to the problem of respon
se to emergency by constitutional democracies, have employed the doctrine of con
stitutional dictatorship.91 Frederick M. Watkins saw no reason why absolutism sho
uld not be used as a means for the defense of liberal institutions, provided it se
rves to protect established institutions from the danger of permanent injury in
a period of temporary emergency and is followed by a prompt return to the previo
us forms of political life. 92 He recognized the two (2) key elements of the
_______________
89
90
91
92
The Discourses, Bk. 1, Ch. XXXIV.

Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
Ibid.
See The Problem of Constitutional Dictatorship, p. 328.
232
232
problem of emergency governance, as well as all constitutional governance: incre
asing administrative powers of the executive, while at the same time imposing lim
itation upon that power. 93 Watkins placed his real faith in a scheme of constitut
ional dictatorship. These are the conditions of success of such a dictatorship: T
he period of dictatorship must be relatively short . . . Dictatorship should alw
ays be strictly legitimate in character . . . Final authority to determine the n
eed for dictatorship in any given case must never rest with the dictator himself
. . . 94 and the objective of such an emergency dictatorship should be strict poli
tical conservatism.
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 It is
a problem of concentrating power in a government where power has consciously been
divided to cope with . . . situations of unprecedented magnitude and gravity. The
re must be a broad grant of powers, subject to equally strong limitations as to
who shall exercise such powers, when, for how long, and to what end. 96 Friedrich,
too, offered criteria for judging the adequacy of any of scheme of emergency po
wers, to wit: The emergency executive must be appointed by constitutional means i.e
., he must be legitimate; he should not enjoy power to determine the existence o
f an emergency; emergency powers should be exercised under a strict time limitat
ion; and last, the objective of emergency action must be the defense of the cons
titutional order. 97
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France,
_______________
93 Ibid., p. 353.
94 Ibid., pp. 338-341.
95 Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
96 Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & C
o., 1949, p. 580.
97 Ibid., pp. 574-584.
233
VOL. 489, MAY 3, 2006
233
Weimar, Germany and the United States, reverted to a description of a scheme of c
onstitutional dictatorship as solution to the vexing problems presented by emerge
ncy.98 Like Watkins and Friedrich, he stated a priori the conditions of success
of the constitutional dictatorship, thus:
1) No general regime or particular institution of constitutional dictatorship sh
ould be initiated unless it is necessary or even indispensable to the preservati
on of the State and its constitutional order . . .
2) . . . the decision to institute a constitutional dictatorship should never be
in the hands of the man or men who will constitute the dictator . . .
3) No government should initiate a constitutional dictatorship without making sp
ecific provisions for its termination . . .
4) . . . all uses of emergency powers and all readjustments in the organization
of the government should be effected in pursuit of constitutional or legal requi
rements . . .
5) . . . no dictatorial institution should be adopted, no right invaded, no regu
lar procedure altered any more than is absolutely necessary for the conquest of
the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship
should never be permanent in character or effect . . .
7) The dictatorship should be carried on by persons representative of every part
of the citizenry interested in the defense of the existing constitutional order

. . .
8) Ultimate responsibility should be maintained for every action taken under a c
onstitutional dictatorship . . .
9) The decision to terminate a constitutional dictatorship, like the decision to
institute one should never be in the hands of the man or men who constitute the
dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the c
risis for which it was instituted . . .
_______________
234
234
11) . . . the termination of the crisis must be followed by a complete return as
possible to the political and governmental conditions existing prior to the ini
tiation of the constitutional dictatorship . . .99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final responsibi
lity for declaring the existence or termination of an emergency, and he places g
reat faith in the effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recen
t experience, were one in saying that, the suggestion that democracies surrender
the control of government to an authoritarian ruler in time of grave danger to t
he nation is not based upon sound constitutional theory. To appraise emergency po
wer in terms of constitutional dictatorship serves merely to distort the problem
and hinder realistic analysis. It matters not whether the term dictator is used i
n its normal sense (as applied to authoritarian rulers) or is employed to embrac
e all chief executives administering emergency powers. However used, constitution
al dictatorship cannot be divorced from the implication of suspension of the proc
esses of constitutionalism. Thus, they favored instead the concept of constitutio
nalism articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of proble
ms of emergency powers, and which is consistent with the findings of this study,
is that formulated by Charles H. McIlwain. While it does not by any means neces
sarily exclude some indeterminate limitations upon the substantive powers of gov
ernment, full emphasis is placed upon procedural limitations, and
_______________
99 Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press,
1948, pp. 298-306.
235
VOL. 489, MAY 3, 2006
235
political responsibility. McIlwain clearly recognized the need to repose adequat
e power in government. And in discussing the meaning of constitutionalism, he in
sisted that the historical and proper test of constitutionalism was the existenc
e of adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis
upon separation of powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted not in the we
akening of government but, but rather in the limiting of it; between which there
is a great and very significant difference. In associating constitutionalism wi
th limited as distinguished from weak government, McIlwain meant government limited
to the orderly procedure of law as opposed to the processes of force. The two fu
ndamental correlative elements of constitutionalism for which all lovers of libe
rty must yet fight are the legal limits to arbitrary power and a complete politi
cal responsibility of government to the governed. 101
In the final analysis, the various approaches to emergency of the above politica
l theorists from Lock s theory of prerogative, to Watkins doctrine of constitutional dic
tatorship and, eventually, to McIlwain s principle of constitutionalism ultimately aim
to solve one real problem in emergency governance, i.e., that of allotting incre
asing areas of discretionary power to the Chief Executive, while insuring that s
uch powers will be exercised with a sense of political responsibility and under
effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Con
stitution, endeavored to create a government in the concept of Justice
_______________
236
236
Jackson s balanced power structure. 102 Executive, legislative, and judicial powers a
re dispersed to the President, the Congress, and the Supreme Court, respectively
. Each is supreme within its own sphere. But none has the monopoly of power in t
imes of emergency. Each branch is given a role to serve as limitation or check u
pon the other. This system does not weaken the President, it just limits his pow
er, using the language of McIlwain. In other words, in times of emergency, our C
onstitution reasonably demands that we repose a certain amount of faith in the b
asic integrity and wisdom of the Chief Executive but, at the same time, it oblig
es him to operate within carefully prescribed procedural limitations.
a. Facial Challenge
Petitioners contend that PP 1017 is void on its face because of its overbreadth. T
hey claim that its enforcement encroached on both unprotected and protected righ
ts under Section 4, Article III of the Constitution and sent a chilling effect to
the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing on their faces statutes in free speech cases, also known under the Americ
an Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or su
ppress all forms of
_______________
102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L
. Ed. 1153 (1952), See Concurring Opinion J. Jackson.
103 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R.
No. 148560, November 19, 2001, 369 SCRA 393.
237
VOL. 489, MAY 3, 2006
237
lawless violence. In United States v. Salerno,104 the US Su-preme Court held tha
t we have not recognized an overbreadth doctrine outside the limited context of the
First Amendment (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violenc
e, insurrection and rebellion are considered harmful and constitutionally unprotect

ed conduct. In Broadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly b
e held void on its face and when such summary action is inappropriate. But the pla
in import of our cases is, at the very least, that facial overbreadth adjudicati
on is an exception to our traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise unprotected behavior tha
t it forbids the State to sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of otherwise valid criminal laws t
hat reflect legitimate state interests in maintaining comprehensive controls ove
r harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes w
hich, by their terms, seek to regulate only spoken words and again, that overbreadt
h claims, if entertained at all, have been curtailed when invoked against ordina
ry criminal laws that are sought to be applied to protected conduct. 106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct,
_______________
104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
105 Supra.
106 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra
.
238
238
not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as manifestly strong medicine, t
o be used sparingly and only as a last resort, and is generally disfavored ;107 The r
eason for this is obvious. Embedded in the traditional rules governing constitut
ional adjudication is the principle that a person to whom a law may be applied w
ill not be heard to challenge a law on the ground that it may conceivably be app
lied unconstitutionally to others, i.e., in other situations not before the Cour
t.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an ex
ception to some of the usual rules of constitutional litigation. Ordinarily, a p
articular litigant claims that a statute is unconstitutional as applied to him o
r her; if the litigant prevails, the courts carve away the unconstitutional aspe
cts of the law by invalidating its improper applications on a case to case basis
. Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; a
nd the court invalidates the entire statute on its face, not merely as applied for s
o that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the chilling ; deterrent effect of t
he overbroad statute on third parties not courageous enough to bring suit. The C
ourt assumes that an overbroad law s very existence may cause others not before the
court to refrain from constitutionally protected speech or expression. An overbr
eadth ruling is designed to remove that deterrent effect on the speech of those
third parties.
_______________
107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).
108 Ibid.
239
VOL. 489, MAY 3, 2006
239

In other words, a facial challenge using the overbreadth doctrine will require t
he Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis
of its actual operation to petitioners, but on the assumption or prediction tha
t its very existence may cause others not before the Court to refrain from const
itutionally protected speech or expression. In Younger v. Harris,109 it was held
that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and req
uiring correction of these deficiencies before the statute is put into effect, i
s rarely if ever an appropriate task for the judiciary. The combination of the r
elative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the req
uired line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions
, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there
can be no instance when the assailed law may be valid. Here, petitioners did no
t even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
Related to the overbreadth doctrine is the void for vagueness doctrine which holds t
hat a law is facially invalid if men of common intelligence must necessarily gues
s at its meaning and differ as to its application. 110 It is subject to the same p
rinciples governing overbreadth doctrine. For one, it is also an analytical tool
for testing on
_______________
109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362
U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 49
2 U.S. 469, 106 L. Ed. 2d 388 (1989).
110 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-246
93, July 31, 1967, 20 SCRA 849 (1967).
240
240
their faces statutes in free speech cases. And like overbreadth, it is said that
a litigant may challenge a statute on its face only if it is vague in all its po
ssible applications. Again, petitioners did not even attempt to show that PP 101
7 is vague in all its application. They also failed to establish that men of com
mon intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions,
thus:
First provision:
by virtue of the power vested upon me by Section 18, Artilce VII . . . do hereby
command the Armed Forces of the Philippines, to maintain law and order throughou
t the Philippines, prevent or suppress all forms of lawless violence as well any
act of insurrection or rebellion
Second provision:
and to enforce obedience to all the laws and to all decrees, orders and regulatio
ns promulgated by me personally or upon my direction ;
Third provision:
as provided in Section 17, Article XII of the Constitution do hereby declare a St
ate of National Emergency.
The first provision pertains to the President s calling-out power. In Sanlakas v.
Executive Secretary,111 this Court,
_______________
111 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustaine
d President Arroyo s declaration of a state of rebellion pursuant to her calling-out
power.
241
VOL. 489, MAY 3, 2006
241
through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Con
stitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of th
e Philippines and whenever it becomes necessary, he may call out such armed forc
es to prevent or suppress lawless violence, invasion or rebellion. In case of in
vasion or rebellion, when the public safety requires it, he may, for a period no
t exceeding sixty days, suspend the privilege of the writ of habeas corpus or pl
ace the Philippines or any part thereof under martial law. Within forty-eight ho
urs from the proclamation of martial law or the suspension of the privilege of t
he writ of habeas corpus, the President shall submit a report in person or in wr
iting to the Congress. The Congress, voting jointly, by a vote of at least a maj
ority of all its Members in regular or special session, may revoke such proclama
tion or suspension, which revocation shall not be set aside by the President. Up
on the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such p
roclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promu
lgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor s
upplant the functioning of the civil courts or legislative assemblies, nor autho
rize the conferment of jurisdiction on military courts and agencies over civilia
ns where civil courts are able to function, nor automatically suspend the privil
ege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicial
ly charged for rebellion or offenses inherent in or directly connected with inva
sion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be re
leased.
242
242
grants the President, as Commander-in-Chief, a sequence of graduated powers. From
the most to the least benign, these are: the calling-out power, the power to sus
pend the privilege of the writ of habeas corpus, and the power to declare Martia
l Law. Citing Integrated Bar of the Philippines v. Zamora,112the Court ruled tha
t the only criterion for the exercise of the calling-out power is that whenever i
t becomes necessary, the President may call the armed forces to prevent or suppres
s lawless violence, invasion or rebellion. Are these conditions present in the in
stant cases? As stated earlier, considering the circumstances then prevailing, P
resident Arroyo found it necessary to issue PP 1017. Owing to her Office s vast in
telligence network, she is in the best position to determine the actual conditio
n of the country.
Under the calling-out power, the President may summon the armed forces to aid hi
m in suppressing lawless violence, invasion and rebellion. This involves ordinar
y police action. But every act that goes beyond the President s calling-out power
is considered illegal or ultra vires. For this reason, a President must be caref
ul in the exercise of his powers. He cannot invoke a greater power when he wishe
s to act under a lesser power. There lies the wisdom of our Constitution, the gr
eater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the Presi
dent s authority to declare a state of rebellion (in Sanlakas) and the authority to
proclaim a state of national emergency. While President Arroyo s authority to decl
are a state of rebellion emanates from her powers as Chief Executive, the statutor
y authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised A
dministrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status o
r condition of public moment or interest, upon the existence of which the operat
ion of a specific law or regulation is
_______________
112 Supra.
243
VOL. 489, MAY 3, 2006
243
made to depend, shall be promulgated in proclamations which shallhave the force
of an executive order.
President Arroyo s declaration of a state of rebellion was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under S
ection 4 cited above. Such declaration, in the words of Sanlakas, is harmless, w
ithout legal significance, and deemed not written. In these cases, PP 1017 is mo
re than that. In declaring a state of national emergency, President Arroyo did n
ot only rely on Section 18, Article VII of the Constitution, a provision calling
on the AFP to prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the State s extraordinary p
ower to take over privatelyowned public utility and business affected with publi
c interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviousl
y, such Proclamation cannot be deemed harmless, without legal significance, or n
ot written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declarati
on of Martial Law. It is no so. What defines the character of PP 1017 are its wo
rdings. It is plain therein that what the President invoked was her calling-out
power.
The declaration of Martial Law is a warn[ing] to citizens that the military power
has been called upon by the executive to assist in the maintenance of law and o
rder, and that, while the emergency lasts, they must, upon pain of arrest and pu
nishment, not commit any acts which will in any way render more difficult the re
storation of order and the enforcement of law. 113
_______________
113 Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929
, quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurrin
g)].
244
244
In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Jus
tice Vicente V. Mendoza,114 an authority in constitutional law, said that of the
three powers of the President as Commander-in-Chief, the power to declare Marti
al Law poses the most severe threat to civil liberties. It is a strong medicine
which should not be resorted to lightly. It cannot be used to stifle or persecut
e critics of the government. It is placed in the keeping of the President for th
e purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, p
rovides:
A state of martial law does not suspend the operation of the Constitution, nor s
upplant the functioning of the civil courts or legislative assemblies, nor autho
rize the conferment of jurisdiction on military courts and agencies over civilia
ns where civil courts are able to function, nor automatically suspend the privil
ege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It
is no more than a call by the President to the armed forces to prevent or suppr
ess lawless violence. As such, it cannot be used to justify acts that only under
a valid declaration of Martial Law can be done. Its use for any other purpose i
s a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures witho
ut judicial warrants; (b) ban on public assemblies; (c) take-over of news media
and agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-in-Chief only where
there is a valid declaration of Martial Law or suspension of the writ of habeas
corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration o
f Martial Law. It is merely an exercise of President Arroyo s calling-out power fo
r the armed
_______________
114 Retired Associate Justice of the Supreme Court.
245
VOL. 489, MAY 3, 2006
245
forces to assist her in preventing or suppressing lawless violence.
The second provision pertains to the power of the President to ensure that the l
aws be faithfully executed. This is based on Section 17, Article VII which reads
:
SEC. 17. The President shall have control of all the executive departments, bure
aus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function
of the President is to enforce the laws as well as to formulate policies to be e
mbodied in existing laws. He sees to it that all laws are enforced by the offici
als and employees of his department. Before assuming office, he is required to t
ake an oath or affirmation to the effect that as President of the Philippines, h
e will, among others, execute its laws. 116 In the exercise of such function, the P
resident, if needed, may employ the powers attached to his office as the Command
er-in-Chief of all the armed forces of the country,117 including the Philippine
National Police118 under the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo
, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017
is unconstitutional as it arrogated upon President Arroyo the power to enact law
s and decrees in violation of Section 1, Article VI of the Constitution, which v
ests the power to enact laws in Congress. They assail the clause to enforce obedi
ence to all
_______________
115 Section 1, Article VII of the Constitution.
118 Section 6, Article XVI of the Constitution.

119 See Republic Act No. 6975.
246
246
the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction.
Petitioners contention is understandable. A reading of PP 1017 operative clause s
hows that it was lifted120 from Former President Marcos Proclamation No. 1081, wh
ich partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue o
f the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Con
stitution, do hereby place the entire Philippines as defined in Article 1, Secti
on 1 of the Constitution under martial law and, in my capacity as their Commande
r-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain l
aw and order throughout the Philippines, prevent or suppress all forms of lawles
s violence as well as any act of insurrection or rebellion and to enforce obedie
nce to all the laws and decrees, orders and regulations promulgated by me person
ally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power
. Its enabling clause states: to enforce obedience to all the laws and decrees, o
rders and regulations promulgated by me personally or upon my direction. Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to en
force obedience to all the laws and to all decrees, orders and regulations promu
lgated by me personally or upon my direction.
Is it within the domain of President Arroyo to promulgate decrees ?
_______________
120 Ironically, even the 7th Whereas Clause of PP 1017 which states that Article
2, Section 4 of our Constitution makes the defense and preservation of the democ
ratic institutions and the State the primary duty of Government replicates more c
losely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 o
f the 1987 Constitution which provides that, [t[he prime duty of the Government i
s to serve and protect the people.
247
VOL. 489, MAY 3, 2006
247
PP 1017 states in part: to enforce obedience to all the laws and decrees x x x pr
omulgated by me personally or upon my direction.
The President is granted an Ordinance Power under Chapter 2, Book III of Executi
ve Order No. 292 (Administrative Code of 1987). She may issue any of the followi
ng:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general o
r permanent character in implementation or execution of constitutional or statut
ory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular as
pect of governmental operations in pursuance of his duties as administrative hea
d shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status o
r condition of public moment or interest, upon the existence of which the operat
ion of a specific law or regulation is made to depend, shall be promulgated in p
roclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative deta
il or of subordinate or temporary interest which only concern a particular offic
er or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to interna
l administration, which the President desires to bring to the attention of all o

r some of the departments, agencies, bureaus or offices of the Government, for i
nformation or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capac
ity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued
as general or special orders.
President Arroyo s ordinance power is limited to the foregoing issuances. She cann
ot issue decrees similar to those issued by Former President Marcos under PP 108
1. Presidential Decrees are laws which are of the same category and binding forc
e as statutes because they were issued by the
248
248
President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it gra
nts President Arroyo the authority to promulgate decrees. Legislative power is pec
uliarly within the province of the Legislature. Section 1, Article VI categorica
lly states that [t]he legislative power shall be vested in the Congress of the Ph
ilippines which shall consist of a Senate and a House of Representatives. To be s
ure, neither Martial Law nor a state of rebellion nor a state of emergency can j
ustify President Arroyo s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the milit
ary?
As this Court stated earlier, President Arroyo has no authority to enact decrees
. It follows that these decrees are void and, therefore, cannot be enforced. Wit
h respect to laws, she cannot call the military to enforce or implement certain la
ws, such as customs laws, laws governing family and property relations, laws on
obligations and contracts and the like. She can only order the military, under P
P 1017, to enforce laws pertinent to its duty to suppress lawless violence.
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and r
egulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of nation
al emergency.
_______________
121 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v
. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supr
a. Aquino v. Commission on Election, supra.
249
VOL. 489, MAY 3, 2006
249
The import of this provision is that President Arroyo, during the state of natio
nal emergency under PP 1017, can call the military not only to enforce obedience
to all the laws and to all decrees x x x but also to act pursuant to the provisio
n of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, t
he State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public util
ity or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision whe
n she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, P
P 1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public ut
ility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of th
e martial law thinking of the 1971 Constitutional Convention.122 In effect at the
time of its approval was President Marcos Letter of Instruction No. 2 dated Septe
mber 22, 1972 instructing the Secretary of National Defense to take over the mana
gement, control and operation of the Manila Electric Company, the Philippine Lon
g Distance Telephone Company, the National Waterworks and Sewerage Authority, th
e Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filip
inas Orient Airways . . . for the successful prosecution by the Government of it
s effort to contain, solve and end the present national emergency.
_______________
122 Section 17, Article XIV of the 1973 Constitution reads: In times of national
emergency when the public interest so requires, the State may temporarily take o
ver or direct the operation of any privately owned public utility or business af
fected with public interest.
250
250
Petitioners, particularly the members of the House of Representatives, claim tha
t President Arroyo s inclusion of Section 17, Article XII in PP 1017 is an encroac
hment on the legislature s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President s authority to declare a state of
national emergency and to exercise emergency powers. To the first, as elucidated
by the Court, Section 18, Article VII grants the President such power, hence, n
o legitimate constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint sessi
on assembled, voting separately, shall have the sole power to declare the existe
nce of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, autho
rize 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 n
ational policy. Unless sooner withdrawn by resolution of the Congress, such powe
rs shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers no
t only to war but also to other national emergency. If the intention of the Framer
s of our Constitution was to withhold from the President the authority to declar
e a state of national emergency pursuant to Section 18, Article VII (calling-out p
ower) and grant it to Congress (like the declaration of the existence of a state
of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a state
of national emergency. The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national emergency even in the abse
nce of a Congressional enactment.
251
VOL. 489, MAY 3, 2006
251
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter
. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provision
s of a constitution which relate to the same subject matter will be construed to
gether and considered in the light of each other.123Considering that Section 17

of Article XII and Section 23 of Article VI, previously quoted, relate to nation
al emergencies, they must be read together to determine the limitation of the ex
ercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in th
e tenor of Section 23 (2), Article VI authorizing it to delegate such powers to
the President. Certainly, a body cannot delegate a power not reposed upon it. Ho
wever, knowing that during grave emergencies, it may not be possible or practica
ble for Congress to meet and exercise its powers, the Framers of our Constitutio
n deemed it wise to allow Congress to grant emergency powers to the President, s
ubject 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 pres
cribe.
(4) The emergency powers must be exercised to carry out a national policy declar
ed by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is jus
t another facet of
_______________
123 Antieau, Constitutional Construction, 1982, p. 21.
124 Cruz, Philippine Political Law, 1998, p. 94.
252
252
the emergency powers generally reposed upon Congress. Thus, when Section 17 stat
es that the the State may, during the emergency and under reasonable terms prescr
ibed by it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest, it refers to Congress,
not the President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law prescrib
ing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,1
25 held:
It is clear that if the President had authority to issue the order he did, it mu
st be found in some provision of the Constitution. And it is not claimed that ex
press constitutional language grants this power to the President. The contention
is that presidential power should be implied from the aggregate of his powers u
nder the Constitution. Particular reliance is placed on provisions in Article II
which say that The executive Power shall be vested in a President . . . . ; that h
e shall take Care that the Laws be faithfully executed ; and that he shall be Comma
nder-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President s military
power as Commander-in-Chief of the Armed Forces. The Government attempts to do s
o by citing a number of cases upholding broad powers in military commanders enga
ged in day-to-day fighting in a theater of war. Such cases need not concern us h
ere. Even though theater of war be an expanding concept, we cannot with faithfulne
ss to our constitutional system hold that the Commander-in-Chief of the Armed Fo
rces has the ultimate power as such to take possession of private property in or
der to keep labor disputes from stopping production. This is a job for the natio
n s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional pro
visions that grant executive power to the President. In the framework of our Con
stitution, the
_______________
125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
253
VOL. 489, MAY 3, 2006

253
President s power to see that the laws are faithfully executed refutes the idea th
at he is to be a lawmaker. The Constitution limits his functions in the lawmakin
g process to the recommending of laws he thinks wise and the vetoing of laws he
thinks bad. And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute. The first section of the first art
icle says that All legislative Powers herein granted shall be vested in a Congres
s of the United States . . . 126
Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 1
7, Article XII refers to tsunami,
typhoon, hurricane and similar occurrences. This is a
mited view of emergency.
Emergency, as a generic term, connotes the existence of conditions suddenly inte
nsifying the degree of existing danger to life or well-being beyond that which i
s accepted as normal. Implicit in this definitions are the elements of intensity
, variety, and perception.127 Emergencies, as perceived by legislature or execut
ive in the United Sates since 1933, have been occasioned by a wide range of situ
ations, classifiable under three (3) principal heads: a) economic,128 b) natural
disas_______________
126 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 25
5-257.
128 The Federal Emergency Relief Act of 1933 opened with a declaration that the
economic depression created a serious emergency, due to wide-spread unemployment
and the inadequacy of State and local relief funds, . . . making it imperative
that the Federal Government cooperate more effectively with the several States a
nd Territories and the District of Columbia in furnishing relief to their needy
and distressed people. President Roosevelt in declaring a bank holiday a few day
s after taking office in 1933 proclaimed that heavy and unwarranted withdrawals o
f gold and currency from . . . banking institutions for the purpose of hoarding;
. . . resulting in sever drains on the Nation s stocks of gold . . . have created
a national
254
254
ter,129 and c) national security.130
Emergency, as contemplated in our Constitution, is of the same breadth. It may inc
lude rebellion, economic crisis, pesti_______________
emergency, requiring his action. Enacted within months after Japan s attack on Pear
l Harbor, the Emergency Price Control Act of 1942 was designed to prevent econom
ic dislocations from endangering the national defense and security and the effec
tive prosecution of the war. (Smith and Cotter, Powers of the President During C
rises, 1972, p. 18)
129 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet th
e emergency and necessity for relief in stricken agricultural areas and in anoth
er section referred to the present drought emergency. The India Emergency Food Aid
Act of 1951 provided for emergency shipments of food to India to meet famine co
nditions then ravaging the great Asian sub-continent. The Communication Act of 1
934 and its 1951 amendment grant the President certain powers in time of public p
eril or disaster. The other statutes provide for existing or anticipated emergenc
ies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagratio
n an landslides. There is also a Joint Resolution of April 1937. It made funds av

ailable for the control of incipient or emergency outbreaks of insect pests or p
lant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Sta
t 315, July 1, 1952, Sec. 2 [a]) Supra.
130 National Security may be cataloged under the heads of (1) Neutrality, (2) De
fense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil
Defense Act of 1950 contemplated an attack or series of attacks by an enemy of t
he United States which conceivably would cause substantial damage or injury to c
ivilian property or persons in the United States by any one of several means; sa
botage, the use of bombs, shellfire, or atomic, radiological, chemical, bacterio
logical means or other weapons or processes. Such an occurrence would cause a Nat
ional Emergency for Civil Defense Purposes, or a state of civil defense emergency,
during the term which the Civil Defense Administrator would have recourse to ext
raordinary powers outlined in the Act. The New York-New Jersey Civil Defense Com
pact supplies an illustration in this context for emergency cooperation. Emergenc
y as used in this compact shall mean and include invasion, or other hostile actio
n, disaster, insurrection or imminent danger thereof. ( Id., p. 15-16).
255
VOL. 489, MAY 3, 2006
255
lence or epidemic, typhoon, flood, or other similar catastrophe of nationwide pr
oportions or effect.131 This is evident in the Records of the Constitutional Com
mission, thus:
MR. GASCON. Yes. What is the Committee s definition of national emergency which appe
ars in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or business affected with pu
blic interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calam
ities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes
and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term national emerge
ncy.
MR. BENGZON. Unless they are of such proportions such that they would paralyze g
overnment service.132 x x x x x x
MR. TINGSON. May I ask the committee if national emergency refers to military nati
onal emergency or could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able
to convene and, therefore, unable to delegate to the President the power to tak
e over privately-owned public utility or business affected with public interest.
_______________
131 Cruz, Philippine Political Law, 1998, p. 95.
132 Record of the Constitutional Commission, Vol. III, pp. 266-267.
133 Record of the Constitutional Convention, pp. 648-649.
256
256
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, throug
h which extraordinary measures are exercised, remains in Congress even in times
of crisis.
x x x
After all the criticisms that have been made against the efficiency of the syste
m 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 t
o the commingling of powers in one man or group of men. The Filipino people by a
dopting 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. N
ever in the history of the United States, the basic features of whose Constituti
on have been copied in ours, have specific functions of the legislative branch o
f enacting laws been surrendered to another department unless we regard as legisla
ting 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 engage
d in a life-and-death struggle to preserve the Union. The truth is that under ou
r concept of constitutional government, in times of extreme perils more than in
normal circumstances the various branches, executive, legislative, and judicial, g
iven the ability to act, are called upon to perform the duties and discharge the
responsibilities committed to them respectively.
Following our interpretation of Section 17, Article XII, invoked by President Ar
royo in issuing PP 1017, this Court rules that such Proclamation does not author
ize her during the emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest wi
thout authority from Congress.
Let it be emphasized that while the President alone can declare a state of natio
nal emergency, however, without legislation, he has no power to take over privat
ely-owned public
_______________
134 84 Phil. 368 (1949).
257
VOL. 489, MAY 3, 2006
257
utility or business affected with public interest. The President cannot decide w
hether exceptional circumstances exist warranting the take over of privately-own
ed public utility or business affected with public interest. Nor can he determin
e when such exceptional circumstances have ceased. Likewise, without legislation
, the President has no power to point out the types of businesses affected with
public interest that should be taken over. In short, the President has no absolu
te authority to exercise all the powers of the State under Section 17, Article V
II in the absence of an emergency powers act passed by Congress.
c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that which pertains to sec
urity, is that military necessity and the guaranteed rights of the individual ar
e often not compatible. Our history reveals that in the crucible of conflict, ma
ny rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of spe
ech, of expression, of the press, and of assembly under the Bill of Rights suffe
red the greatest blow.
Of the seven (7) petitions, three (3) indicate direct injury.
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2
006, they were arrested without warrants on their way to EDSA to celebrate the 2
0th Anniversary of People Power I. The arresting officers cited PP 1017 as basis
of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives raided and ransacked witho
ut warrant their office. Three policemen were assigned to guard their office as a
possible source of destabilization. Again, the basis was PP 1017.
258
258
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU, et al. alleged that their
members were turned away and dispersed when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the direct injuries allegedly suffered by the said petitioners shows
that they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render
it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid a
lthough they may be abused and misabused135 and may afford an opportunity for ab
use in the manner of application.136 The validity of a statute or ordinance is t
o be determined from its general purpose and its efficiency to accomplish the en
d desired, not from its effects in a particular case.137 PP 1017 is merely an in
vocation of the President s calling-out power. Its general purpose is to command t
he AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021. B
ut there is nothing in PP 1017 allowing the police, expressly or impliedly, to c
onduct illegal arrest, search or violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground th
at its implementor committed illegal acts? The answer is no. The criterion by wh
ich the validity of the statute or ordinance is to be measured is the essential
basis for the exercise of power, and not a mere incidental
_______________
135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
136 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR
1261, cert den 280 US 610, 74 L ed 653, 50 S. Ct. 158.
137 Sanitation Dist. v. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 2
11 NY 309, 105 NE 548.
259
VOL. 489, MAY 3, 2006
259
result arising from its exertion.138 This is logical. Just imagine the absurdity
of situations when laws maybe declared unconstitutional just because the office
rs implementing them have acted arbitrarily. If this were so, judging from the b
lunders committed by policemen in the cases passed upon by the Court, majority o
f the provisions of the Revised Penal Code would have been declared unconstituti
onal a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 101
7. General orders are acts and commands of the President in his capacity as Comma
nder-in-Chief of the Armed Forces of the Philippines. They are internal rules iss
ued by the executive officer to his subordinates precisely for the proper and ef
ficient administration of law. Such rules and regulations create no relation exc
ept between the official who issues them and the official who receives them.139
They are based on and are the product of, a relationship in which power is their
source, and obedience, their object.140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capric
ious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary an
d appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.
Unlike the term lawless violence which is unarguably extant in our statutes and th
e Constitution, and which is invariably associated with invasion, insurrection or
rebellion, the phrase acts of terrorism is still an amorphous and vague
_______________
138 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L. ed. 530, 29 S. Ct. 370.
139 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 11
5.
140 Ibid.
260
260
concept. Congress has yet to enact a law defining and punishing acts of terroris
m.
In fact, this definitional predicament or the absence of an agreed definition of te
rrorism confronts not only our country, but the international community as well.
The following observations are quite apropos:
In the actual unipolar context of international relations, the fight against terr
orism has become one of the basic slogans when it comes to the justification of t
he use of force against certain states and against groups operating internationa
lly. Lists of states sponsoring terrorism and of terrorist organizations are set u
p and constantly being updated according to criteria that are not always known t
o the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of f
orce as the most recent by the United States against Iraq consists in the absence
of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of v
iolence either by states, by armed groups such as liberation movements, or by in
dividuals.
The dilemma can by summarized in the saying One country s terrorist is another coun
try s freedom fighter. The apparent contradiction or lack of consistency in the use
of the term terrorism may further be demonstrated by the historical fact that lea
ders of national liberation movements such as Nelson Mandela in South Africa, Ha
bib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at
the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the dif-ferentia specific
a distinguishing those acts from eventually legitimate acts of national resistan
ce or self-defense?
Since the times of the Cold War the United Nations Organization has been trying
in vain to reach a consensus on the basic issue of definition. The organization
has intensified its efforts recently, but has been unable to bridge the gap betw
een those who associate terrorism with any violent act by non-state groups against
civil261
VOL. 489, MAY 3, 2006
261
ians, state functionaries or infrastructure or military installations, and those
who believe in the concept of the legitimate use of force when resistance again
st foreign occupation or against systematic oppression of ethnic and/or religiou
s groups within a state is concerned.
The dilemma facing the international community can best be illustrated by refere
nce to the contradicting categorization of organizations and movements such as P
alestine Liberation Organization (PLO) which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims the Kashmiri resistance groups who are te
rrorists in the perception of India, liberation fighters in that of Pakistan the e
arlier Contras in Nicaragua freedom fighters for the United States, terrorists for
the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become
the Taliban movement): during the Cold War period they were a group of freedom f
ighters for the West, nurtured by the United States, and a terrorist gang for th
e Soviet Union. One could go on and on in enumerating examples of conflicting ca

tegorizations that cannot be reconciled in any way because of opposing political i
nterests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and e
valuations of one and the same group and its actions be explained? In our analys
is, the basic reason for these striking inconsistencies lies in the divergent in
terest of states. Depending on whether a state is in the position of an occupyin
g power or in that of a rival, or adversary, of an occupying power in a given te
rritory, the definition of terrorism will fluctuate accordingly. A state may event
ually see itself as protector of the rights of a certain ethnic group outside it
s territory and will therefore speak of a liberation struggle, not of terrorism when
acts of violence by this group are concerned, and vice versa.
The United Nations Organization has been unable to reach a decision on the defin
ition of terrorism exactly because of these conflicting interests of sovereign s
tates that determine in each and every instance how a particular armed movement
(i.e., a non-state actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A policy of double standards on this vital issue of international affa
irs has been the unavoidable consequence.
This definitional predicament of an organization consisting of sovereign states and
not of peoples, in spite of the emphasis in the
262
262
Preamble to the United Nations Charter! has become even more serious in the presen
t global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium powe
rs are increasingly being marginalized; and the problem has become even more acu
te since the terrorist attacks of 11 September 2001 in the United States.141
The absence of a law defining acts of terrorism may result in abuse and oppression
on the part of the police or military. An illustration is when a group of perso
ns are merely engaged in a drinking spree. Yet the military or the police may co
nsider the act as an act of terrorism and immediately arrest them pursuant to G.
O. No. 5. Obviously, this is abuse and oppression on their part. It must be reme
mbered that an act can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty thereon.
So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. N
o. 1835 dated January 16, 1981 enacted by President Marcos during the Martial La
w regime. This decree is entitled Codifying The Various Laws on AntiSubversion an
d Increasing The Penalties for Membership in Subversive Organizations. The word te
rrorism is mentioned in the following provision: That one who conspires with any o
ther person for the purpose of overthrowing the Government of the Philippines x
x x by force, violence, terrorism, x x x shall be punished by reclusion temporal
x x x. P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist P
arty of the Philippines) enacted by President
_______________
141 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centen
ary Lecture Series, Hans Koechler, Professor of Philosophy at the University of
Innsbruck (Austria) and President of the International Progress Organization, sp
eaking on The United Nations, The International Rule of Law and Terrorism cited in
the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. N
o. 151445, April 11, 2002, 380 SCRA 739.
263
VOL. 489, MAY 3, 2006
263
Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of
terrorism. Since there is no law defining acts of terrorism, it is President Arroy

o alone, under G.O. No. 5, who has the discretion to determine what acts constit
ute terrorism. Her judgment on this aspect is absolute, without restrictions. Co
nsequently, there can be indiscriminate arrest without warrants, breaking into o
ffices and residences, taking over the media enterprises, prohibition and disper
sal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling
-out power of the President. Certainly, they violate the due process clause of t
he Constitution. Thus, this Court declares that the acts of terrorism portion of G
.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police
to commit acts beyond what are necessary and appropriate to suppress and preven
t lawless violence, the limitation of their authority in pursuing the Order. Oth
erwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David, et al.)
The Constitution provides that the right of the people to be secured in their per
sons, houses, papers and effects against unreasonable search and seizure of what
ever nature and for any purpose shall be inviolable, and no search warrant or wa
rrant of arrest shall issue except upon probable cause to be determined personal
ly by the judge after examination under oath or affirmation of the complainant a
nd the witnesses he may produce, and particularly describing the place to be sea
rched and the persons or things to be seized. 142 The plain import of the language
of the Constitution is that searches, seizures and arrests are normally unreaso
nable unless authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that between person
and police must stand the
_______________
142 Section 2, Article III of the 1987 Constitution.
264
264
protective authority of a magistrate clothed with power to issue or refuse to is
sue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are establi
shed: first, he was arrested without warrant; second, the PNP operatives arreste
d him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon Ci
ty where he was fingerprinted, photographed and booked like a criminal suspect;
fourth, he was treated brusquely by policemen who held his head and tried to push
him inside an unmarked car; fifth, he was charged with Violation of Batas Pamban
sa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven
(7) hours; and seventh, he was eventually released for insufficiency of evidence
.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person m
ay, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arr
ested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David s war
rantless arrest. During the inquest for
_______________
143 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer
-Primer, p. 51.
144 Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

145 An Act Ensuring the Free Exercise by the People of their Right Peaceably to
Assemble and Petition the Government for Other Purposes.
265
VOL. 489, MAY 3, 2006
265
the charges of inciting to sedition and violation of BP 880, all that the arrest
ing officers could invoke was their observation that some rallyists were wearing
t-shirts with the invective Oust Gloria Now and their erroneous assumption that p
etitioner David was the leader of the rally.146 Consequently, the Inquest Prosec
utor ordered his immediate release on the ground of insufficiency of evidence. H
e noted that petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to sediti
on. Further, he also stated that there is insufficient evidence for the charge o
f violation of BP 880 as it was not even known whether petitioner David was the
leader of the rally.147
But what made it doubly worse for petitioners David, et al. is that not only was
their right against warrantless arrest violated, but also their right to peacea
bly assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the govern
ment for redress of grievances.
Assembly means a right on the part of the citizens to meet peaceably for consultat
ion in respect to public affairs. It is a necessary consequence of our republica
n institution and complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a showi
ng of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expres
sion, the right to assemble is not subject to previous restraint or censorship.
It may not be conditioned upon the prior issuance of a permit or authorization f
rom the government au_______________
146 Annex A
147 Ibid.
266
of the Memorandum in G.R. No. 171396, pp. 271-273.
266
thorities except, of course, if the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the assembly itself, may
be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
crime, neither was there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from circumstances, the charges
of inciting to sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting of
ficers conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly can
not be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of m
eetings for peaceable political action cannot be proscribed. Those who assist in
the conduct of such meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly are not to be prese
rved, is not as to the auspices under which the meeting was held but as to its p
urpose; not as to the relations of the speakers, but whether their utterances tr
anscend the bounds of the freedom of speech which the Constitution protects. If
the persons assembling have committed crimes elsewhere, if they have formed or a
re engaged in a conspiracy against the public peace and order, they may be prose
cuted for their conspiracy or other violations of valid laws. But it is a differ
ent matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion
as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMU, et al. (G.R. No. 171483) unwarranted. Apparen
tly, their dispersal was done merely on the basis of Malacaang s directive cancelin
g all permits previously issued by local government
_______________
148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
267
VOL. 489, MAY 3, 2006
267
units. This is arbitrary. The wholesale cancellation of all permits to rally is
a blatant disregard of the principle that freedom of assembly is not to be limite
d, much less denied, except on a showing of a clear and present danger of a subs
tantive evil that the State has a right to prevent. 149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a cle
ar and present danger that the State may deny the citizens right to exercise it.
Indeed, respondents failed to show or convince the Court that the rallyists comm
itted acts amounting to lawless violence, invasion or rebellion. With the blanke
t revocation of permits, the distinction between protected and unprotected assem
blies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodg
ed with the local government units. They have the power to issue permits and to
revoke such permits after due notice and hearing on the determination of the pre
sence of clear and present danger. Here, petitioners were not even notified and
heard on the revocation of their permits.150 The first time they learned of it w
as at the time of the dispersal. Such absence of notice is a fatal defect. When
a person s right is restricted by government action, it behooves a democratic gove
rnment to see to it that the restriction is fair, reasonable, and according to p
rocedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of s
peech i.e., the freedom of the press. Petitioners narration of facts, which the S
olicitor General failed
_______________
149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
150 Section 5. Application requirements. All applications for a permit shall compl
y with the following guidelines:
x x x
x x x
(c) If the mayor is of the view that there is imminent and grave danger of a sub
stantive evil warranting the denial or modification of the permit, he shall imme
diately inform the applicant who must be heard on the matter.
268
268
to refute, established the following: first, the Daily Tribune s offices were sear
ched without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the mornin
g of February 25, 2006; fourth, the search was conducted in the absence of any o
fficial of the Daily Tribune except the security guard of the building; and fift
h, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief
of Staff Michael Defensor was quoted as saying that such raid was meant to show
a strong presence, to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government. Director General Lomibao furthe
r stated that if they do not follow the standards -and the standards are if they
would contribute to instability in the government, or if they do not subscribe t
o what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover.
tional Telecommunications Commissioner Ronald Solis urged television and radio n
etworks to cooperate with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure
of any broadcast outfit that violates rules set out for media coverage during t
imes when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that a s
earch warrant be issued upon probable cause in connection with one specific offe
nce to be determined personally by the judge after examination under oath or aff
irmation of the complainant and the witnesses he may produce. Section 8 mandates
that the search of a house, room, or any other premise be made in
_______________
Na

269
VOL. 489, MAY 3, 2006
269
the presence of the lawful occupant thereof or any member of his family or in th
e absence of the latter, in the presence of two (2) witnesses of sufficient age
and discretion residing in the same locality. And Section 9 states that the warr
ant must direct that it be served in the daytime, unless the property is on the
person or in the place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best gau
ge of a free and democratic society rests in the degree of freedom enjoyed by it
s media. In the Burgos v. Chief of Staff152 this Court held that
As heretofore stated, the premises searched were the business and printing offic
es of the Metropolitan Mail and the We Forum newspapers. As a consequence of the sea
rch and seizure, these premises were padlocked and sealed, with the further resu
lt that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to t
he freedom of the press guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework where a free, alert a
nd even militant press is essential for the political enlightenment and growth o
f the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the Metropo
litan Mail and We Forum newspapers in the above case, yet it cannot be denied that
the CIDG operatives exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity of the T
he Daily Tribune offices, and the arrogant warning of government officials to me
dia,
_______________
152 No. L-64161, December 26, 1984, 133 SCRA 816.
270
270

are plain censorship. It is that officious functionary of the repressive governm
ent who tells the citizen that he may speak only if allowed to do so, and no mor
e and no less than what he is permitted to say on pain of punishment should he b
e so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it invo
lves the most defiant of our citizens. Freedom to comment on public affairs is e
ssential to the vitality of a representative democracy. It is the duty of the co
urts to be watchful for the constitutional rights of the citizen, and against an
y stealthy encroachments thereon. The motto should always be obsta principiis.15
4
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribune s offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible for any purpose,
thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when in
spected the Tribune for the purpose of gathering evidence and you admitted that
the policemen were able to get the clippings. Is that not in admission of the ad
missibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and
I know, Your Honor, and these are inadmissible for any purpose.155
_______________
153 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections,
G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
154 Boyd v. United States, 116 U.S. 616 (1886).
155 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
271
VOL. 489,
271
David vs.
x x x
SR. ASSO.
MAY 3, 2006
Macapagal-Arroyo
x x x
x x x
JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 o clock in
the morning and without any search warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, itis not based on any l
aw, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 10
17 which says that the police could go and inspect and gather clippings from Dai
ly Tribune or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don t know if it is prematur
e to say this, we do not condone this. If the people who have been injured by th
is would want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, acco
rding to the Solicitor General, illegal and cannot be condoned, thus:
_______________
156 Ibid., pp. 432-433.
272
272
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don t know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You c
annot blame the President for, as you said, a misapplication of the law. These a
re acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and should result in no constitutional or statutory breaches if appl
ied according to their letter.
The Court has passed upon the constitutionality of these issuances. Its ratiocin
ation has been exhaustively presented. At this point, suffice it to reiterate th
at PP 1017 is limited to the calling out by the President of the military to pre
vent or suppress lawless violence, invasion or rebellion. When in implementing i
ts provisions, pursuant to G.O. No. 5, the military and the police committed act
s which violate the citizens rights under the Constitution, this Court has to dec
lare such acts unconstitutional and illegal. In this connection, Chief Justice A
rtemio V. Panganiban s concurring opinion, attached hereto, is considered an integ
ral part of this ponencia.
S U M M A T I O N
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event w
ould have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof.
Besides, there is no guarantee that PP 1017, or one similar to it, may not agai
n be issued. Already, there have
_______________
157 Ibid., pp. 507-508.
273
VOL. 489, MAY 3, 2006
273
been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if
the May 1 rallies become unruly and violent. Consequently, the transcendental issu
es raised by the parties should not be evaded; they must now be resolved to preven
t future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it consti
tutes a call by the President for the AFP to prevent or suppress lawless violenc
e. The proclamation is sustained by Section 18, Article VII of the Constitution
and the relevant jurisprudence discussed earlier. However, PP 1017 s extraneous pr
ovisions giving the President express or implied power (1) to issue decrees; (2)
to direct the AFP to enforce obedience to all laws even those not related to la
wless violence as well as decrees promulgated by the President; and (3) to impos
e standards on media or any form of prior restraint on the press, are ultra vire
s and unconstitutional. The Court also rules that under Section 17, Article XII
of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public i
nterest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to carry
out the provisions of PP 1017. Significantly, it also provides a valid standard th
at the military and the police should take only the necessary and appropriate act
ions and measures to suppress and prevent acts of lawless violence. But the words
acts of terrorism found in G.O. No. 5 have not been legally defined and made puni
shable by Congress and should thus be deemed deleted from the said G.O. While ter
rorism has been denounced generally in media, no law has been enacted to guide th
e military, and eventually the courts, to determine the limits of the AFP s author
ity in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest
274
274
of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rall
ies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition
of standards on media or any prior restraint on the press; and (4) the warrantle
ss search of the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the la
w and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, c
riminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The ci
vil complaints or causes of action and/or relevant criminal Informations have no
t been presented before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or administrative liabiliti
es.
It is well to remember that military power is a means to an end and substantive
civil rights are ends in themselves. How to give the military the power it needs
to protect the Republic without unnecessarily trampling individual rights is on
e of the eternal balancing tasks of a democratic state. During emergency, govern
mental action may vary in breadth and intensity from normal times, yet they shou
ld not be arbitrary as to unduly restrain our people s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant govern
ment the authority to cope with crises without surrendering the two vital princi
ples of constitutionalism: the maintenance of legal limits to arbitrary power, a
nd political responsibility of the government to the governed.158
_______________
158 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.
275
VOL. 489, MAY 3, 2006
275
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CON
STITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroy
o on the AFP to prevent or suppress lawless violence. However, the provisions of
PP 1017 commanding the AFP to enforce laws not related to lawless violence, as
well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under Section 17
, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does n
ot authorize the President to take o ver privately-owned public utility or busin
ess affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and t
he PNP should implement PP 1017, i.e. whatever is necessary and appropriate actio
ns and measures to suppress and prevent acts of lawless violence. Considering tha
t acts of terrorism have not yet been defined and made punishable by the Legislatu
re, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arr
est of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof t
hat these petitioners were committing acts constituting lawless violence, invasi
on or rebellion and violating BP 880; the imposition of standards on media or an
y form of prior restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and Garcia, JJ., concur
.
Panganiban (C.J.), Please see Concurring Opinion.
276
276
Puno, J., On Leave.
Ynares-Santiago, J., Pls. see Concurring Opinion.
Carpio, J., I also concur with Chief Justice s Opinion.
Corona, J., I share the dissenting opinion of Mr. Justice Tinga.
Carpio-Morales, J., The Concurring Opinion of the Chief Justice merits also
my concurrence.
Callejo, Sr., J., I also concur with the concurring opinion of Chief Justic
e Artemio Panganiban.
Tinga, J., Please see dissenting opinion.
Velasco, Jr., J., I join the dissent of J. Tinga.
CONCURRING OPINION
PANGANIBAN, C.J.:
I was hoping until the last moment of our deliberations on these consolidated ca
ses that the Court would be unanimous in its Decision. After all, during the las
t two weeks, it decided with one voice two equally contentious and nationally si
gnificant controversies involving Executive Order No. 4641 and the so-called Cal
ibrated Preemptive Response policy.2
However, the distinguished Mr. Justice Dante O. Tinga s Dissenting Opinion has mad
e that hope an impossibility. I now write, not only to express my full concurren
ce in the thorough and elegantly written ponencia of the esteemed Mme. Justice A
ngelina Sandoval-Gutierrez, but more urgently to express a little comment on Jus
tice Tinga s Dissenting Opinion (DO).
_______________
1 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA
1.
2 Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
277
VOL. 489, MAY 3, 2006
277
The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and f
inds nothing wrong with PP 1017. It labels the PP a harmless pronouncement an utter
superfluity and denounces the ponencia as an immodest show of brawn that has impruden
tly placed the Court in the business of defanging paper tigers.
Under this line of thinking, it would be perfectly legal for the President to re
issue PP 1017 under its present language and nuance. I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the police to some
minds may have flirted with power. With due respect, this is a masterful understateme
nt. PP 1017 may be a paper tiger, but to borrow the colorful words of an erstwhile
Asian leader it has nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits of presidentia
l prerogatives and the perseverance of this Court in safeguarding the people s con
stitutionally enshrined liberty. They are playing with fire, and unless prudentl
y restrained, they may one day wittingly or unwittingly burn down the country. H
istory will never forget, much less forgive, this Court if it allows such misadv
enture and refuses to strike down abuse at its inception. Worse, our people will
surely condemn the misuse of legal hocus pocus to justify this trifling with co
nstitutional sanctities.
And even for those who deeply care for the President, it is timely and wise for
this Court to set down the parameters of power and to make known, politely but f
irmly, its dogged determination to perform its constitutional duty at all times
and against all odds. Perhaps this country would never have had to experience th
e wrenching pain of dictatorship; and a past President would not have fallen int
o the precipice of authoritarianism, if the Supreme Court then had the moral cou
rage to remind him steadfastly of his mortality and the inevitable historical da
mnation of despots and tyrants. Let not this Court fall into that same rut.
278
278
CONCURRING OPINION
YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of men s minds.
Harold J. Laski, Professor of Government and Member of the British Labor Party, i
n his book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benja
min Cardozo once wrote, are preserved against the assaults of opportunism, the e
xpediency of the passing hour, the erosion of small encroachments, the scorn and
derision of those who have no patience with general principles.1 In an open and
democratic society, freedom of thought and expression is the matrix, the indisp
ensable condition, of nearly every other form of freedom.2
I share the view that Presidential Proclamation No. 1017 (PP 1017) under which P
resident Gloria Macapagal-Arroyo declared a state of national emergency, and Gen
eral Order No. 5 (G.O. No. 5), issued by the President pursuant to the same proc
lamation are both partly unconstitutional.
I fully agree with the pronouncement that PP 1017 is no more than the exercise b
y the President, as the Commander-in-Chief of all armed forces of the Philippine
s, of her power to call out such armed forces whenever it becomes necessary to p
revent or suppress lawless violence, invasion or rebellion. This is allowed unde
r Section 18, Article VII of the Constitution.
However, such calling out power does not authorize the President to direct the arm
ed forces or the police to enforce laws not related to lawless violence, invasio
n or rebellion. The
_______________
1 Cardozo, B., Nature of Judicial Process, 1921.
2 Palko v. State of Connecticut, 302 U.S. 319 (1937).
279
VOL. 489, MAY 3, 2006
279
same does not allow the President to promulgate decrees with the force and effec
t similar or equal to laws as this power is vested by the Constitution with the
legislature. Neither is it a license to conduct searches and seizures or arrests
without warrant except in cases provided in the Rules of Court. It is not a san
ction to impose any form of prior restraint on the freedom of the press or expre
ssion or to curtail the freedom to peaceably assemble or frustrate fundamental c
onstitutional rights.
In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S. Azcuna emphasi
zed that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right th
at enjoys primacy in the realm of constitutional protection. These rights consti
tute the very basis of a functional democratic polity, without which all the oth
er rights would be meaningless and unprotected.
On the other hand, the direct reference to Section 17, Article XII of the Consti
tution as the constitutional basis for the declaration of a state of national em
ergency is misplaced. This provision can be found under the article on National
Economy and Patrimony which presupposes that national emergency is of an economic,
and not political, nature. Moreover, the said provision refers to the temporary
takeover by the State of any privately-owned public utility or business affecte
d with public interest in times of national emergency. In such a case, the takeo
ver is authorized when the public interest so requires and subject to reasonable
terms which the State may prescribe.
The use of the word State as well as the reference to reasonable terms under Section
17, Article XII can only pertain to Congress. In other words, the said provisio
n is not self-executing as to be validly invoked by the President without
_______________
3 G.R. Nos. 169838, 169848, 169881, April 25, 2006, 488 SCRA 226.
280
280
congressional authorization. The provision merely declares a state economic poli
cy during times of national emergency. As such, it cannot be taken to mean as au
thorizing the President to exercise takeover powers pursuant to a declaration of a
state of national emergency.
The President, with all the powers vested in her by Article VII, cannot arrogate
unto herself the power to take over or direct the operation of any privately ow
ned public utility or business affected with public interest without Congression
al authorization. To do so would constitute an ultra vires act on the part of th
e Chief Executive, whose powers are limited to the powers vested in her by Artic
le VII, and cannot extend to Article XII without the approval of Congress.
Thus, the President s authority to act in times of national emergency is still sub
ject to the limitations expressly prescribed by Congress. This is a featured com
ponent of the doctrine of separation of powers, specifically, the principle of c
hecks and balances as applicable to the political branches of government, the ex
ecutive and the legislature.
With regard to G.O. No. 5, I agree that it is unconstitutional insofar as it man
dates the armed forces and the national police to prevent and suppress acts of te
rrorism and lawless violence in the country. There is presently no law enacted by
Congress that defines terrorism, or classifies what acts are punishable as acts
of terrorism. The notion of terrorism, as well as acts constitutive thereof, is
at best fraught with ambiguity. It is therefore subject to different interpreta
tions by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of what constit
utes terrorism have led the law enforcement officers to necessarily guess at its m
eaning and differ as to its application giving rise to unrestrained violations o
f the fundamental guarantees of freedom of peaceable assembly and freedom of the
press.
281
VOL. 489, MAY 3, 2006

281
In Kolender v. Lawson,4 the United States Supreme Court nullified a state statut
e requiring persons who loitered or wandered on streets to provide credible and r
eliable identification and to account for their presence when requested to do so
by a police officer. Writing for the majority, Justice Sandra Day O Connor noted t
hat the most important aspect of vagueness doctrine was the imposition of guidel
ines that prohibited arbitrary, selective enforcement on constitutionally suspec
t basis by police officers. This rationale for invocation of that doctrine was o
f special concern in this case because of the potential for arbitrary suppressio
n of the fundamental liberties concerning freedom of speech and expression, as w
ell as restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of national emerg
ency as a statement of a factual condition pursuant to our ruling in Sanlakas v.
Executive Secretary,5 I wish to emphasize that the same does not grant her any
additional powers. Consequently, while PP 1017 is valid as a declaration of a fa
ctual condition, the provisions which purport to vest in the President additiona
l powers not theretofore vested in her must be struck down. The provision under
G.O. No. 5 ordering the armed forces to carry out measures to prevent or suppres
s acts of terrorism must be declared unconstitutional as well.
Finally, it cannot be gainsaid that government action to stifle constitutional l
iberties guaranteed under the Bill of Rights cannot be preemptive in meeting any
and all perceived or potential threats to the life of the nation. Such threats
must be actual, or at least gravely imminent, to warrant government to take prop
er action. To allow government to preempt the happening of any event would be ak
in to putting the cart before the horse, in a manner of speaking. State action is
proper only if there is a clear and present danger of a sub_______________
4 461 U.S. 352 (1983).
5 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.
282
282
stantive evil which the state has a right to prevent. We should bear in mind tha
t in a democracy, constitutional liberties must always be accorded supreme impor
tance in the conduct of daily life. At the heart of these liberties lies freedom
of speech and thought not merely in the propagation of ideas we love, but more im
portantly, in the advocacy of ideas we may oftentimes loathe. As succinctly arti
culated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free speech and assemb
ly. x x x It is the function of speech to free men from the bondage of irrationa
l fears. To justify suppression of free speech there must be reasonable ground t
o believe that the danger apprehended is imminent. There must be reasonable grou
nd to believe that the evil to be prevented is a serious one. x x x But even adv
ocacy of violation, however reprehensible morally, is not a justification for de
nying free speech where the advocacy falls short of incitement and there is noth
ing to indicate that the advocacy would be immediately acted on. The wide differ
ence between advocacy and incitement, between preparation and attempt, between a
ssembling and conspiracy, must be borne in mind. In order to support a finding o
f clear and present danger it must be shown either that immediate serious violen
ce was to be expected or was advocated, or that the past conduct furnished reaso
n to believe that such advocacy was then contemplated. 6
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.
DISSENTING OPINION
TINGA, J.:
I regret to say that the majority, by its ruling today, has imprudently placed t
he Court in the business of defanging paper tigers. The immodest show of brawn u
nfortunately
_______________
6 Brandeis, J., joined by Holmes, J., concurring in Whitney v. California, 274 U
.S. 357 (1927).
283
VOL. 489, MAY 3, 2006
283
comes at the expense of an exhibition by the Court of a fundamental but sophisti
cated understanding of the extent and limits of executive powers and prerogative
s, as well as those assigned to the judicial branch. I agree with the majority o
n some points, but I cannot join the majority opinion, as it proceeds to rule on
non-justiciable issues based on fears that have not materialized, departing as
they do from the plain language of the challenged issuances to the extent of sec
ond-guessing the Chief Executive. I respectfully dissent.
The key perspective from which I view these present petitions is my own ponencia
in Sanlakas v. Executive Secretary,1 which centered on Presidential Proclamatio
n No. 427 (PP 427), declaring a state of rebellion in 2003. The Court therein conc
luded that while the declaration was constitutional, such declaration should be
regarded as both regarded as an utter superfluity, which only gives notice to the n
ation that such a state exists and that the armed forces may be called to preven
t or suppress it, and devoid of any legal significance, and cannot diminish or viola
te constitutionally protected rights. I submit that the same conclusions should b
e reached as to Proclamation No. 1017 (PP 1017). Following the cardinal precept
that the acts of the executive are presumed constitutional is the equally import
ant doctrine that to warrant unconstitutionality, there must be a clear and uneq
uivocal breach of the Constitution, not a doubtful and argumentative implication
.2 Also well-settled as a rule of construction is that where thee are two possib
le constructions of law or executive issuance one of which is in harmony with th
e Constitution, that construction should be preferred.3 The
_______________
1 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.
2 R. Agpalo, Statutory Construction, 3rd ed. (1995), at p. 21.
3 When a statute is reasonably susceptible of two constructions, one constitution
al and the other unconstitutional, that construction in favor of its constitutio
nality shall be adopted and the construction that will render it invalid rejecte
d. See R. Agpalo, Id.,
284
284
concerns raised by the majority relating to PP 1017 and General Order Nos. 5 can
be easily disquieted by applying this well-settled principle.
I. PP 1017 Has No Legal Binding
Effect; Creates No Rights and
Obligations; and Cannot Be
Enforced or Invoked in a Court
Of Law
First, the fundamentals. The President is the Chief of State and Foreign Relatio
ns, the chief of the Executive Branch,4 and the Commander-in-Chief of the Armed
Forces.5 The Constitution vests on the President the executive power.6 The Presi
dent derives these constitutional mandates from direct election from the people.
The President stands as the most recognizable representative symbol of governme
nt and of the Philippine state, to the extent that foreign leaders who speak wit
h the President do so with the understanding that they are speaking to the Phili
ppine state.
Yet no matter the powers and prestige of the presidency, there are significant l
imitations to the office of the President. The President does not have the power
to make or legislate
_______________
at p. 266; citing Mutuc v. Commission on Elections, G.R. No. 32717, Nov. 26, 197
0, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. No. 21064, Feb
. 18, 1970, 31 SCRA 413; American Bible Society v. City of Manila, 101 Phil. 386
(1957); Alba v. Evangelista, 100 Phil. 683 (1957); Maddumba v. Ozaeta, 82 Phil.
345 (1948); Benguet Exploration, Inc. v. Department of Agriculture and Natural
Resources, G.R. No. 29534, Feb. 28, 1977, 75 SCRA 285 (1977); De la Cruz v. Para
s, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
4 See Constitution, Section 17, Article VII.
285
VOL. 489, MAY 3, 2006
285
laws,7or disobey those laws passed by Congress.8 Neither does the President have
to power to create rights and obligations with binding legal effect on the Fili
pino citizens, except in the context of entering into contractual or treaty obli
gations by virtue of his/her position as the head of State. The Constitution lik
ewise imposes limitations on certain powers of the President that are normally i
nherent in the office. For example, even though the President is the administrat
ive head of the Executive Department and maintains executive control thereof,9 t
he President is precluded from arbitrarily terminating the vast majority of empl
oyees in the civil service whose right to security of tenure is guaranteed by th
e Constitution.10
The President has inherent powers,11 powers expressly vested by the Constitution
, and powers expressly conferred by statutes. The power of the President to make
proclamations, while confirmed by statutory grant, is nonetheless rooted in an
inherent power of the presidency and not expressly subjected to constitutional l
imitations. But proclamations, as they are, are a species of issuances of extrem
ely limited efficacy. As defined in the Administrative Code, proclamations are m
erely acts of the President fixing a date or declaring a status or condition of p
ublic moment or interest upon the existence of which the operation of a specific
law or regulation is made to depend. 12 A proclamation, on its own, cannot create
or suspend any constitutional or statutory rights or obligations. There would b
e need of a complementing law or regu_______________
7 The plenary legislative power being vested in Congress. See Constitution, Sect
ion 1, Article VI.
8 [The President] shall ensure that the laws be faithfully executed. See Constitut
ion, Section 17, Article VII.
9 Supra note 4.
10 No officer or employee of the civil service shall be removed or suspended exce
pt for cause provided by law. See Constitution, Section 2(3), Article IX-B.
11 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760
, 763.
12 See Administrative Code, Section 4, Chapter 2, Book III.
286
286

lation referred to in the proclamation should such act indeed put into operation
any law or regulation by fixing a date or declaring a status or condition of a
public moment or interest related to such law or regulation. And should the proc
lamation allow the operationalization of such law or regulation, all subsequent
resultant acts cannot exceed or supersede the law or regulation that was put int
o effect.
Under Section 18, Article VII of the Constitution, among the constitutional powe
rs of the President, as Commander-in-Chief, is to call out such armed forces to p
revent or suppress lawless violence, invasion or rebellion. 13 The existence of in
vasion or rebellion could allow the President to either suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under ma
rtial law, but there is a fairly elaborate constitutional procedure to be observ
ed in such a case, including congressional affirmation or revocation of such sus
pension or declaration, as well as the availability of judicial review. However,
the existence of lawless violence, invasion or rebellion does not ipso facto ca
use the calling out of the armed forces, the suspension of habeas corpus or the de
claration of martial law it remains within the discretion of the President to enga
ge in any of these three acts should said conditions arise.
Sanlakas involved PP 427, which declared the existence of a state of rebellion. Su
ch declaration could ostensibly predicate the suspension of the privilege of the
writ of habeas corpus or the declaration of martial law, but the President did
not do so. Instead, PP 427, and the accompanying General Order No. 4, invoked th
e calling out of the Armed Forces to prevent lawless violence, invasion and rebell
ion. Appreciably, a state of lawless violence, invasion or rebellion could be va
riable in scope, magnitude and gravity; and Section 18, Article VII allows for t
he President to respond with the appropriate measured and proportional response.
_______________
13 See Section 18, Article VII, Constitution.
287
VOL. 489, MAY 3, 2006
287
Indeed, the diminution of any constitutional rights through the suspension of th
e privilege of the writ or the declaration of martial law is deemed as strong med
icine to be used sparingly and only as a last resort, and for as long as only tru
ly necessary. Thus, the mere invocation of the calling out power stands as a balan
ced means of enabling a heightened alertness in dealing with the armed threat, b
ut without having to suspend any constitutional or statutory rights or cause the
creation of any new obligations. For the utilization of the calling out power alo
ne cannot vest unto the President any new constitutional or statutory powers, su
ch as the enactment of new laws. At most, it can only renew emphasis on the duty
of the President to execute already existing laws without extending a correspon
ding mandate to proceed extra-constitutionally or extra-legally. Indeed, the call
ing out power does not authorize the President or the members of the Armed Forces
to break the law.
These were the premises that ultimately informed the Court s decision in Sanlakas,
which affirmed the declaration of a state of rebellion as within the calling out po
wer of the President, but which emphasized that for legal intents and purposes,
it should be both regarded as an utter superfluity, which only gives notice to the
nation that such a state exists and that the armed forces may be called to preve
nt or suppress it, and devoid of any legal significance, as it could not cannot dimi
nish or violate constitutionally protected rights. The same premises apply as to
PP 1017.
A comparative analysis of PP 427 and PP 1017, particularly their operative claus
es, is in order.
PP 427
PP 1017
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

by law, hereby confirm the existence of an acNOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Phil
ippines and Commander-in-Chief of the Armed Forces of the Philippines,
288
288
tual and on-going rebellion, compelling me to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance wi
th Section 18, Article VII of the Constitution, calling out the Armed Forces of
the Philippines and the Philippine National Police to immediately carry out the
necessary actions and measures to suppress and quell the rebellion with due rega
rd to constitutional rights.
by virtue of the powers vested upon me by Section 18, Article 7 of the Philippin
e Constitution which states that: The President. . . whenever it becomes necessar
y, . . . 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 any act of insurrecti
on or rebellion and to enforce obedience to all the laws and to all decrees, ord
ers and regulations promulgated by me personally or upon my direction; and as pr
ovided in Section 17, Article 12 of the Constitution do hereby declare a State o
f National Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by
two distinct phases. The first is the declaration itself of a status or conditi
on, a state of rebellion in PP 437, and a state of national emergency under PP 1017.
Both state of rebellion and state of national emergency are terms within constituti
onal contemplation. Under Section 18, Article VII, the existence of a state of re
bellion is sufficient premise for either the suspension of the privilege of the w
rit of habeas corpus or the declaration of martial law, though in accordance wit
h the strict guidelines under the same provision. Under Section 17, Article XII,
the existence of a state of national emergency is sufficient ground for the Sta
te, during the emergency, under reasonable terms prescribed by it, and when the
public interest so requires, to temporarily take over or direct the operation of
any privately289
VOL. 489, MAY 3, 2006
289
owned public utility or business affected with public interest. Under Section 23
(2), Article VI, the existence of a state of national emergency may also allow C
ongress to authorize the President, for a limited period and subject to such res
trictions as it may prescribe, to exercise powers necessary and proper to carry
out a declared national policy.
Certainly, the declaration could stand as the first step towards constitutional
authorization for the exercise by the President, the Congress or the State of ex
traordinary powers and prerogatives. However, the declaration alone cannot put i
nto operation these extraordinary powers and prerogatives, as the declaration mu
st be followed through with a separate act providing for the actual utilization
of such powers. In the case of the state of rebellion, such act involves the suspe
nsion of the writ or declaration of martial law. In the case of the state of nati
onal emergency, such act involves either an order for the takeover or actual take
over by the State of public utilities or businesses imbued with public interest
or the authorization by Congress for the President to exercise emergency powers.
In PP 427, the declaration of a state of rebellion did not lead to the suspension
of the writ or the declaration of martial law. In PP 1017, the declaration of a s
tate of national emergency did not lead to an authorization for the takeover or a
ctual takeover of any utility or business, or the grant by Congress to the Presi
dent of emergency powers. Instead, both declarations led to the invocation of th
e calling out power of the President under Section 18, Article VII, which the ma
jority correctly characterizes as involving only ordinary police action.
I agree with the ponencia s holding that PP 1017 involves the exercise by the Pres
ident of the calling out power under Section 18, Article VII. In Integrated Bar v.
Zamora,14 the Court was beseeched upon to review an order of President
_______________
14 392 Phil. 618; 338 SCRA 81 (2000).
290
290
Estrada commanding the deployment of the Marines in patrols around Metro Manila,
in view of an increase in crime.15 The Court, speaking through Justice Santiago
Kapunan, affirmed the President s order, asserting that it is the unclouded intent
of the Constitution to vest upon the President, as Commander-in-Chief of the Ar
med Forces, full discretion to call forth the military when in his judgment it i
s necessary to do so in order to prevent or suppress lawless violence, invasion
or rebellion. Unless the petitioner can show that the exercise of such discretio
n was gravely abused, the President s exercise of judgment deserves to be accorded
respect from this Court. 16 Tellingly, the order of deployment by President Estra
da was affirmed by the Court even though we held the view that the power then in
volved was not the calling out power, but the power involved may be no more than th
e maintenance of peace and order and promotion of the general welfare. 17
It was also maintained in Integrated Bar that while Section 18, Article VII mand
ated two conditions actual rebellion or invasion and the requirement of public saf
ety before the suspension of the privilege of the writ of habeas corpus or the dec
laration of martial law could be declared, these conditions are not required in t
he case of the power to call out the armed forces. The only criterion is that whe
never it becomes necessary, the President may call the armed forces to suppress la
wless violence, invasion or rebellion. 18 The Court concluded that the implication
was that the President is given full discretion and wide latitude in the exercis
e of the power to call as compared to the two other powers. 19
These propositions were affirmed in Sanlakas, wherein the invocation of the call
ing out power was expressly made by
_______________
15 Id.,
16 Id.,
17 Id.,
18 Id.,
19 Id.
291
at
at
at
at
p.
p.
p.
p.
627;
644;
636;
643;
pp. 102-103.
p. 111.
p. 103.
p. 110.
VOL. 489, MAY 3, 2006

291
President Arroyo. The Court noted that for the purpose of exercising the calling
out power, the Constitution did not require the President to make a declaration
of a state of rebellion.20 At the same time, the Court in Sanlakas acknowledged
that the President s authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from h
er Commander-in-Chief powers. 21
For still unclear reasons, the majority attempts to draw a distinction between S
anlakas and the present petitions by that the statutory authority to declare a st
ate of rebellion emanates from the Administrative Code of 1987, particularly the
provision authorizing the President to make proclamations. As such, the declarat
ion of a state of rebellion, pursuant to statutory authority, was merely an act dec
laring a status or condition of public moment or interest. The majority grossly m
isreads Sanlakas, which expressly roots the declaration of a state of rebellion
from the wedded powers of the Chief Executive, under Section 1, Article VII, and
as Commander-in-Chief, under Section 18, Article VII.
Insofar as PP 1017 is concerned, the calling out power is definitely involved, i
n view of the directive to the Armed Forces of the Philippines to suppress all fo
rms of lawless violence . But there are nuances to the calling out power invoked i
n PP 1017 which the majority does not discuss. The directive to suppress all form
s of lawless violence is addressed not only to the Armed Forces but to the police
as well. The calling out of the police does not derive from Section 17, Article V
II, or the commander-in-chief clause, our national police being civilian in char
acter. Instead, the calling out of the police is sourced from the power of the P
resident as Chief Executive under Section 1, Article VII, and the power of execu
tive control under Section 18, Article VII. Moreover, while
_______________
20 Sanlakas v. Executive Secretary, supra note 1, at p. 668.
21 Id., at p. 677.
292
292
the permissible scope of military action is limited to acts in furtherance of su
ppressing lawless violence, rebellion, invasion, the police can be commanded by
the President to execute all laws without distinction in light of the presidenti
al duty to execute all laws.22
Still, insofar as Section 17, Article VII is concerned, wide latitude is accorde
d to the discretion of the Chief Executive in the exercise of the calling out powe
r due to a recognition that the said power is of limited import, directed only t
o the Armed Forces of the Philippines, and incapable of imposing any binding leg
al effect on the citizens and other branches of the Philippines. Indeed, PP 1017
does not purport otherwise. Nothing in its operative provisions authorize the P
resident, the Armed Forces of the Philippines, or any officer of the law, to per
form any extra-constitutional or extra-legal acts. PP 1017 does not dictate the
suspension of any of the people s guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a state of emergency
under PP 1017 nor the invocation of the calling out power therein authorizes wa
rrantless arrests, searches or seizures; the infringement of the right to free e
xpression, peaceable assembly and association and other constitutional or statut
ory rights. Any public officer who nonetheless engaged or is engaging in such ex
tra-constitutional or extra-legal acts in the name of PP 1017 may be subjected t
o the appropriate civil, criminal or administrative liability.
To prove this point, let us now compare PP 1017 with a different presidential is
suance, one that was intended to diminish constitutional and civil rights of the
people. The said issuance, Presidential Proclamation No. 1081, was issued by Pr
esident Marcos in 1972 as the instrument of declaring martial law. The operative
provisions read:
_______________
22 Supra note 8.
293
VOL. 489, MAY 3, 2006
293
PD 1081
PP 1017
Now, thereof, I, Ferdinand E. Marcos, President of the Philippines, by virt
ue of the powers vested upon me by article VII, Section 10, Paragraph (2) of the
Constitution, do hereby placethe entire Philippines as defined in the article I
, Section 1, of the Constitution under martial law, and in my capacity as their
commander-in-chief, do hereby command the armed forces of the Philippines, to ma
intain law and order throughout the Philippines, prevent or suppress all forms o
f lawless violence as well as any act of insurrection or rebellion and to enforc
e obedience to all the laws and decrees, orders and regulations promulgated by m
e personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well
as others who may hereafter be similarly detained for the crimes of insurrectio
n or rebellion, and all other crimes and offenses committed in furtherance or on
the occasion thereof, or incident thereto, or in connection therewith, for crim
es against national security and the law of nations, crimes, against the fundame
ntal laws of the state, crimes against public order, crimes involving usurpation
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of th
e 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 C
onstitution 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 any act of insurrect
ion or rebellion and to enforce obedience to all the laws and to all decrees, or
ders and regulations promulgated by me personally or upon my direction; and as p
rovided in Sect ion 17, Article 12 of the Constitution do hereby declare a State
of National Emergency.
294
294
of authority, rank, title and improper use of names, uniforms and insignia, crim
es committed by public officers, and for such other crimes as will be enumerated
in Orders that I shall subsequently promulgate, as well as crimes as a conseque
nce of any violation of any decree, order or regulation promulgated by me person
ally or promulgated upon my direction shall be kept under detention until otherw
ise ordered released by me or by my duly designated representative. (emphasis su
pplied)
Let us examine the differences between PP No. 1081 and PP 1017. First, while PP
1017 merely declared the existence of a state of rebellion, an act ultimately ob
servational in character, PP 1081 placed the entire Philippines under martial law
, an active implement23 that, by itself, substituted civilian governmental author
ity with military authority. Unlike in the 1986 Constitution, which was appropri
ately crafted with an aversion to the excesses of Marcosian martial rule, the 19
35 Constitution under which PP 1081 was issued left no intervening safeguards th
at tempered or limited the declaration of martial law. Even the contrast in the
verbs used, place as opposed to declare, betrays some significance. To declare may b
e simply to acknowledge the existence of a particular condition, while to place
ineluctably goes beyond mere acknowledgement, and signifies the imposition of th
e actual condition even if it did not exist before.
_______________
23 The declaration of martial law then within the President to make under author
ity of Section 10(2), Article VII of the 1935 Constitution.
295
VOL. 489, MAY 3, 2006
295

Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the co
ntexts of such power are wildly distaff in light of PP 1081 s accompanying declara
tion of martial law. Since martial law involves the substitution of the military
in the civilian functions of government, the calling out power involved in PP 1
081 is significantly greater than the one involved in PP 1017, which could only
contemplate the enforcement of existing laws in relation to the suppression of l
awless violence, rebellion or invasion and the maintenance of general peace and
order.
Further proof that PP 1081 intended a wholesale suspension of civil liberties in
the manner that PP 1017 does not even ponder upon is the subsequent paragraph c
ited, which authorizes the detention and continued detention of persons for a pl
ethora of crimes not only directly related to the rebellion or lawless violence,
but of broader range such as those against national security, or public order.
order of detention under PP 1081 arguably includes every crime in the statute bo
ok. And most alarmingly, any person detained by virtue of PP 1081 could remain i
n perpetual detention unless otherwise released upon order of President Marcos o
r his duly authorized representative.
Another worthy point of contrast concerns how the Supreme Court, during the mart
ial law era, dealt with the challenges raised before it to martial law rule and
its effects on civil liberties. While martial law stood as a valid presidential
prerogative under the 1935 Constitution, a ruling committed to safeguard civil r
ights and liberties could have stood ground against even the most fundamental of
human rights abuses ostensibly protected under the 1935 and 1973 constitutions
and under international declarations and conventions. Yet a perusal of Aquino v.
Enrile,24 the case that decisively affirmed the validity of martial law rule, s
hows that most of the Justices then sitting exhibited diffidence guised though a
s defer_______________
24 No. L-35546, 17 September 1974, 59 SCRA 183.
296
296
ence towards the declaration of martial law. Note these few excerpts from the se
veral opinions submitted in that case which stand as typical for those times:
The present state of martial law in the Philippines is peculiarly Filipino and fi
ts into no traditional patterns or judicial precedents. x x x In the first place
I am convinced (as are the other Justices), without need of receiving evidence
as in an ordinary adversary court proceeding, that a state of rebellion existed
in the country when Proclamation No. 1081 was issued. It was a matter of contemp
orary history within the cognizance not only of the courts but of all observant
people residing here at that time. x x x The state of rebellion continues up to
the present. The argument that while armed hostilities go on in several province
s in Mindanao there are none in other regions except in isolated pockets in Luzo
n, and that therefore there is no need to maintain martial law all over the coun
try, ignores the sophisticated nature and ramifications of rebellion in a modern
setting. It does not consist simply of armed clashes between organized and iden
tifiable groups on fields of their own choosing. It includes subversion of the m
ost subtle kind, necessarily clandestine and operating precisely where there is
no actual fighting. Underground propaganda, through printed newssheets or rumors
disseminated in whispers; recruiting of armed and ideological adherents, raisin
g of funds, procurement of arms and materiel, fifth-column activities including
sabotage and intelligence all these are part of the rebellion which by their natur
e are usually conducted far from the battle fronts. They cannot be counteracted
effectively unless recognized and dealt with in that context.25
x x x
[T]he fact that courts are open cannot be accepted as proof that the rebellion a
The
nd insurrection, which compellingly called for the declaration of martial law, n

o longer imperil the public safety. Nor are the many surface indicia adverted to
by the petitioners (the increase in the number of tourists, the choice of Manil
a as the site of international conferences and of an international beauty contes
t) to be regarded as evidence that the threat to public safety has abated. There
is actual armed combat, attended by the somber panoply of war, raging in Sulu a
nd Cotabato, not to mention the Bicol region
_______________
25 Aquino, Jr. v. Enrile, Id., at pp. 240-241.
297
VOL. 489, MAY 3, 2006
297
and Cagayan Valley. I am hard put to say, therefore, that the Government s claim i
s baseless.
I am not insensitive to the plea made here in the name of individual liberty. Bu
t to paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner D
iokno that is in issue we would probably resolve the doubt in his favor and gran
t his application. But the Solicitor General, who must be deemed to represent th
e President and the Executive Department in this case, has manifested that in th
e President s judgment peace and tranquility cannot be speedily restored in the co
untry unless the petitioners and others like them meantime remain in military cu
stody. For, indeed, the central matter involved is not merely the liberty of iso
lated individuals, but the collective peace, tranquility and security of the ent
ire nation.26
x x x
It may be that the existence or non-existence or imminence of a rebellion of the
magnitude that would justify the imposition of martial law is an objective fact
capable of judicial notice, for a rebellion that is not of general knowledge to
the public cannot conceivably be dangerous to public safety. But precisely beca
use it is capable of judicial notice, no inquiry is needed to determine the prop
riety of the Executive s action.
Again, while the existence of a rebellion may be widely known, its real extent a
nd the dangers it may actually pose to the public safety are not always easily p
erceptible to the unpracticed eye. In the present day practices of rebellion, it
s inseparable subversion aspect has proven to be more effective and important th
an the rising (of persons) publicly and taking arms against the Government by whic
h the Revised Penal Code characterizes rebellion as a crime under its sanction.
Subversion is such a covert kind of antigovernment activity that it is very diff
icult even for army intelligence to determine its exact area of influence and ef
fect, not to mention the details of its forces and resources. By subversion, the
rebels can extend their field of action unnoticed even up to the highest levels
of the government, where no one can always be certain of the political complexi
on of the man next to him, and this does not exclude the courts. Arms, ammunitio
n and all kinds of war equipment travel and are transferred in deep secrecy to s
trategic locations,
_______________
26 Aquino, Jr. v. Enrile, Id., at pp. 262-263, Castro, J., Separate Opinion.
298
298
which can be one s neighborhood without him having any idea of what is going on. T
here are so many insidious ways in which subversives act, in fact too many to en
umerate, but the point that immediately suggests itself is that they are mostly
incapable of being proven in court, so how are We to make a judicial inquiry abo
ut them that can satisfy our judicial conscience.

The Constitution definitely commits it to the Executive to determine the factual
bases and to forthwith act as promptly as possible to meet the emergencies of r
ebellion and invasion which may be crucial to the life of the nation. He must do
this with unwavering conviction, or any hesitancy or indecision on his part wil
l surely detract from the needed precision in his choice of the means he would e
mploy to repel the aggression. The apprehension that his decision might be held
by the Supreme Court to be a transgression of the fundamental law he has sworn t
o defend and preserve would deter him from acting when precisely it is most urgent
and critical that he should act, since the enemy is about to strike the mortal
blow.27
x x x
To start with, Congress was not unaware of the worsening conditions of peace and
order and of, at least, evident insurgency, what with the numerous easily verif
iable reports of open rebellious activities in different parts of the country an
d the series of rallies and demonstrations, often bloody, in Manila itself and o
ther centers of population, including those that reached not only the portals bu
t even the session hall of the legislature, but the legislators seemed not to be
sufficiently alarmed or they either were indifferent or did not know what to do
under the circumstances. Instead of taking immediate measures to alleviate the
conditions denounced and decried by the rebels and the activists, they debated a
nd argued long on palliatives without coming out with anything substantial much
less satisfactory in the eyes of those who were seditiously shouting for reforms
. In any event, in the face of the inability of Congress to meet the situation,
and prompted by his appraisal of a critical situation that urgently called for i
mmediate action, the only alternative open to the President was to resort to the
other constitutional source of extraordinary powers, the Constitution itself.28
_______________
27 Id., at pp. 398-399, Barredo, J., concurring.
28 Id., at pp. 405-406, Barredo, J., concurring.
299
VOL. 489, MAY 3, 2006
299
x x x
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, i
n ordering detention of persons, the Proclamation pointedly limits arrests and d
etention only to those presently detained, as well as others who may hereafter be
similarly detained for the crimes of insurrection or rebellion, and all other c
rimes and offences committed in furtherance or on the occasion thereof, or incid
ent thereto, or in connection therewith, for crimes against national security an
d the law of nations, crimes, against the fundamental laws of the state, crimes
against public order, crimes involving usurpation of authority, rank, title and
improper use of names, uniforms and insignia, crimes committed by public officer
s, and for such other crimes as will be enumerated in Orders that I shall subseq
uently promulgate, as well as crimes as a consequence of any violation of any de
cree, order or regulation promulgated by me personally or promulgated upon my di
rection. Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, i
t is merely in a state of anaesthesia, to the end that the much needed major sur
gery to save the nation s life may be successfully undertaken. 29
x x x
The quoted lines of reasoning can no longer be sustained, on many levels, in the
se more enlightened times. For one, as a direct reaction to the philosophy of ju
dicial inhibition so frequently exhibited during the Marcos dictatorship, our pr
esent Constitution has explicitly mandated judicial review of the acts of govern
ment as part of the judicial function. As if to rebuff Aquino, the 1987 Constitu
tion expressly allows the Supreme Court to review the sufficiency of the factual
basis of the proclamation of martial law and decide the same within 30 days fro
m the filing of the appropriate case.30 The Constitution also emphasizes that a
state of martial law did not suspend the operation of the Constitution or suppla
nt the
_______________
29 Id., at p. 423, Barredo, J., concurring.
30 Constitution, Section 18, Article VII.
300
300
functioning of the judicial and legislative branches.31 The expediency of hiding
behind the political question doctrine can no longer be resorted to.
For another, the renewed emphasis within domestic and international society on t
he rights of people, as can be seen in worldwide democratic movements beginning
with our own in 1986, makes it more difficult for a government established and g
overned under a democratic constitution, to engage in official acts that run con
trary to the basic tenets of democracy and civil rights. If a government insists
on proceeding otherwise, the courts will stand in defense of the basic constitu
tional rights of the people.
Still, the restoration of rule under law, the establishment of national governme
ntal instrumentalities, and the principle of republicanism all ensure that the c
onstitutional government retains significant powers and prerogatives, for it is
through such measures that it can exercise sovereign will in behalf of the peopl
e. Concession to those presidential privileges and prerogatives should be made i
f due. The abuses of past executive governments should not detract from these ba
sic governmental powers, even as they may warrant a greater degree of wariness f
rom those institutions that balance power and the people themselves. And the rul
e of law should prevail above all. The damage done by martial rule was not merel
y personal but institutional, and the proper rebuke to the caprices and whims of
the iniquitous past is to respect the confines of the restored rule of law.32
Nothing in PP 1017, or any issuance by any President since Aquino, comes even cl
ose to matching PP 1081. It is a rank insult to those of us who suffered or stoo
d by those oppressed under PP 1081 to even suggest that the innocuous PP 1017 is
of equivalent import.
_______________
31 Constitution, Section 18, Article VII.
32 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397.
301
VOL. 489, MAY 3, 2006
301
PP 1017 Does Not Purport or
Pretend that the President Has
The Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017 and PP 1081, h
arped upon by some of the petitioners and alluded to by the majority. PP 1017 co
ntains a command to the Armed Forces to enforce obedience to all the laws and to
all decrees, orders and regulations by [the President]. A similar command was mad
e under PP 1081. That in itself should not be a cause of surprise, since both PP
1017 and PP 1081 expressly invoked the calling out power, albeit in different con
texts.
The majority however considers that since the President does not have the power
to issue decrees, PP 1017 is unconstitutional insofar as it enforces obedience to
all decrees. For one, it should be made clear that the President currently has n
o power to issue decrees, and PP 1017 by no measure seeks to restore such power
to the President. Certainly, not even a single decree was issued by President Ar
royo during the several days PP 1017 was in effect, or during her term thus far
for that matter.
At the same time, such power did once belong to the President during the Marcos
era and was extensively utilized by President Marcos. It has to be remembered th
at chafed as we may have under some of the Marcos decrees, per the 1987 Constitu
tion they still remain as part of the law of the land unless particularly strick
en down or repealed by subsequent enactments. Indeed, when the President calls u
pon the Armed Forces to enforce the laws, those subsisting presidential decrees
issued by President Marcos in the exercise of his legislative powers are include
d in the equation.
This view is supported by the rules of statutory construction. The particular pa
ssage in PP 1017 reads to enforce obedience to all the laws and to all decrees, o
rders and regulations, with the phrases all the laws and to all decrees sepa302
302
rated by a comma from orders and regulations promulgated by me. Inherently, laws a
nd those decrees issued by President Marcos in the exercise of his legislative p
owers, and even those executive issuances of President Aquino in the exercise of
her legislative powers, belong to the same class, superior in the hierarchy of
laws than orders and regulations. The use of the conjunction and denotes a joinder o
r union, relating the one to the other. 33 The use of and establishes an association
between laws and decrees distinct from orders and regulations, thus permitting t
he application of the doctrine of noscitur a sociis to construe decrees as those d
ecrees which at present have the force of law. The dividing comma further signif
ies the segregation of concepts between laws and decrees on one hand, and orders an
d regulations on the other.
Further proof that laws and decrees stand as a class distinct from orders and regul
ations is the qualifying phrase promulgated by me, which necessarily refers only to
orders and regulations. Otherwise, PP 1017 would be ridiculous in the sense tha
t the obedience to be enforced only relates to laws promulgated by President Arr
oyo since she assumed office in 2001. Laws and decrees do not relate only to those
promulgated by President Arroyo, but other laws enacted by past sovereigns, whe
ther they be in the form of the Marcos presidential decrees, or acts enacted by
the American Governor-General such as the Revised Penal Code. Certainly then, su
ch a qualification sufficiently addresses the fears of the majority that PP 1017
somehow empowers or recognizes the ability of the current President to promulga
te decrees. Instead, the majority pushes an interpretation that, if pursued to i
ts logical end, suggests that the President by virtue of PP 1017 is also arrogat
ing unto herself, the power to promulgate laws, which are in the mold of enactme
nts from Congress. Again, in this respect, the grouping of laws and decrees separate
ly from orders and regulations signifies that the
_______________
33 See R. Agpalo, Statutory Construction, p. 206.
303
VOL. 489, MAY 3, 2006
303
President has not arrogated unto herself the power to issue decrees in the mold
of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to decrees which the
current President could not very well issue, such intention is of no consequence
, since the proclamation does not intend or pretend to grant the President such
power in the first place. By no measure of contemplation could PP 1017 be interp
reted as reinstating to the President the power to issue decrees.
I cannot see how the phrase enforce obedience to decrees can be the source of cons
titutional mischief, since the implementation of PP 1017 will not vest on the Pr
esident the power to issue such decrees. If the Court truly feels the need to cl
arify this point, it can do so with the expediency of one sentence or even a foo
tnote. A solemn declaration that the phrase is unconstitutional would be like ki
lling a flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives
Inherent and Traditional in the Office of
The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, nonexistent as they may
be in relation to the citizenry, the courts or on Congress. Still, there is anot
her purpose and dimension behind PP 1017 that fall within the valid prerogatives
of the President.
The President, as head of state, is cast in a unique role in our polity matched
by no other individual or institution. Apart from the constitutional powers vest
ed on the President lie those powers rooted in the symbolic functions of the off
ice. There is the common expectation that the President should stand as the poli
tical, moral and social leader of the nation, an expectation not referred to in
of the oath of office, but expected as a matter of tradition. In fact, a Preside
nt may be cast in crisis even if the Chief Executive has broken no law, and fait
hfully executed those laws that exist, simply because
304
304
the President has failed to win over the hearts and minds of the citizens. As a
Princeton academic, Woodrow Wilson once observed that with the People, the Presi
dent is everything, and without them nothing, and the sad decline of his own eve
ntual presidency is no better proof of the maxim. Such are among the vagaries of
the political office, and generally beyond judicial relief or remedy.
Justice Robert Jackson s astute observation in Youngstown Sheet & Tube Co. v. Sawy
er34 on the unique nature of the presidency, has been widely quoted:
Executive power has the advantage of concentration in a single head in whose choi
ce the whole Nation has a part, making him the focus of public hopes and expecta
tions. In drama, magnitude, and finality, his decisions so far overshadow any ot
hers that almost alone he fills the public eye and ear. No other personality in
public life can begin to compete with him in access to the public mind through m
odern methods of communications. By his prestige as head of state and his influe
nce upon public opinion he exerts a leverage upon those who are supposed to chec
k and balance his power which often cancels their effectiveness. 35
Correspondingly, the unique nature of the office affords the President the oppor
tunity to profoundly influence the public discourse, not necessarily through the
enactment or enforcement of laws, but specially by the mere expediency of takin
g a stand on the issues of the day. Indeed, the President is expected to exercis
e leadership not merely through the proposal and enactment of laws, but by makin
g such vital stands. U.S. President Theodore Roosevelt popularized the notion of
the presidency as a bully pulpit, in line with his belief that the President was
the steward of the people limited only by the specific restrictions and prohibit
ions appearing in the Constitution, or impleaded by Congress under its constitut
ional powers.
_______________
34 343 U.S. 579, 653-654, J. Jackson, concurring.
35 Ibid.
305
VOL. 489, MAY 3, 2006
305
Many times, the President exercises such prerogative as a responsive measure, as

after a mass tragedy or calamity. Indeed, when the President issues a declarati
on or proclamation of a state of national mourning after a disaster with massive
casualties, while perhaps de rigeur, is not the formalistic exercise of traditi
on, but a statement that the President, as the representative of the Filipino pe
ople, grieves over the loss of life and extends condolences in behalf of the peo
ple to the bereaved. This is leadership at its most solemn.
Yet the President is not precluded, in the exercise of such role, to be merely r
esponsive. The popular expectation in fact is of a pro-active, dynamic chief exe
cutive with an ability to identify problems or concerns at their incipience and
to respond to them with all legal means at the earliest possible time. The Presi
dent, as head of state, very well has the capacity to use the office to garner s
upport for those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put America on track to the
goal of placing a man on the moon. Those memorable presidential speeches memori
zed by schoolchildren may have not, by themselves, made operative any law, but t
hey served not only merely symbolic functions, but help profoundly influence tow
ards the right direction, the public opinion in the discourse of the times. Perh
aps there was no more dramatic example of the use of the bully pulpit for such nob
le purposes than in 1964, when an American President from Texas stood before a C
ongress populated by many powerful bigots, and fully committed himself as no oth
er President before to the cause of civil rights with his intonation of those li
nes from the civil rights anthem, we shall overcome.
From an earlier era in American history, Lincoln s Emancipation Proclamation stand
s out as a presidential declaration which clearly staked American polity on the
side of the democratic ideal, even though the proclamation itself was of dubitab
le legal value. The proclamation, in short form, freed the slaves, but was not its
elf free of legal questions. For one, the notion that the President could, by hi
mself, alter the civil
306
306
and legal status of an entire class of persons was dubious then and now, althoug
h President Lincoln did justify his action as in the exercise of his powers as c
ommander-in-chief during wartime, as a fit and necessary war measure for suppress
ing [the] rebellion. Moreover, it has been pointed out that the Proclamation only
freed those slaves in those states which were then in rebellion, and it eventua
lly took the enactment of the Thirteenth Amendment of the U.S. Constitution to l
egally abolish involuntary servitude.36 Notwithstanding the legal haze surroundi
ng it, the Emancipation Proclamation still stands as a defining example not only
of the Lincoln Presidency, but of American democratic principles. It may be rem
embered to this day not exactly as an operational means by which slaves were act
ually freed, but as a clear rhetorical statement that slavery could no longer th
enceforth stand.
The President as Chief Government Spokesperson of the democratic ideals is entru
sted with a heady but comfortable pursuit. But no less vital, if somewhat graver
, is the role of the President as the Chief Defender of the democratic way of li
fe. The calling out power assures the President such capability to a great extent,
yet it will not fully suffice as a defense of democracy. There is a need for th
e President to rally the people to defend the Constitution which guarantees the
democratic way of life, through means other than coercive. I assert that the dec
laration of a state of emergency, on premises of a looming armed threat which ha
ve hardly been disputed, falls within such proper functions of the President as
the defender of the Constitution. It was designed to inform the people of the ex
istence of such a threat, with the expectation that the citizenry would not aid
or abet those who would overturn through force the democratic government. At the
same time, the Proclamation itself does not violate the Constitution as it does
not call for or put into operation the sus-
_______________
36 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., a
t pp. 119-120.
307
VOL. 489, MAY 3, 2006
307
pension or withdrawal of any constitutional rights, or even create or diminish a
ny substantive rights.
I submit that it would be proper for the Court to recognize that PP 1017 strikes
a commendable balance between the Constitution, the calling out power, and the in
herent function of the Presidency as defender of the democratic constitution. PP
1017 keeps within the scope and limitations of these three standards. It assert
s the primacy of the democratic order, civilian control over the armed forces, y
et respects constitutional and statutory guarantees of the people.
II. Section 17, Article XII
of the Constitution
In Relation to PP 1017
My next issue with the majority pertains to the assertion that the President doe
s not have the power to take over public utilities or businesses impressed with
public interest under Section 17, Article XII of the Constitution without prior
congressional authorization. I agree that the power of the State to take over su
ch utilities and businesses is highly limited, and should be viewed with suspici
on if actually enforced.
Yet qualifications are in order with regard to how Section 17, Article XII actua
lly relates of PP 1017.
I agree with the majority that a distinction should be asserted as between the p
ower of the President to declare a state of emergency, and the exercise of emerg
ency powers under Section 17, Article XII. The President would have the power to
declare a state of emergency even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face and as appli
ed, did not involve the actual takeover of any public utility or business impres
sed with public interest. To some minds, the police action in relation to the Da
ily Tribune may have flirted with such power, yet ultimately the
308
308
newspaper was able to independently publish without police interference or court
injunction. It may be so that since PP 1017 did make express reference to Secti
on 17, Article XII, but it should be remembered that the constitutional provisio
n refers to a two-fold power of the State to declare a national emergency and to
take over such utilities and enterprises. The first power under Section 17, Art
icle XII is not distinct from the power of the President, derived from other con
stitutional sources, to declare a state of national emergency. Reference to Sect
ion 17, Article XII in relation to the power to declare a state of national emer
gency is ultimately superfluous. A different situation would obtain though if PP
1017 were invoked in the actual takeover of a utility or business, and in such
case, full consideration of the import of Section 17, Article XII would be warra
nted. But no such situation obtains in this case, and any discussion relating to
the power of the State to take over a utility or business under Section 17, Art
icle XII would ultimately be obiter dictum.
I respectfully submit that the Court, in these petitions, need not have engaged
this potentially contentious issue, especially as it extends to whether under co
nstitutional contemplation, the President may act in behalf of the State in exer
cising the powers under Section 17, Article XII. Nonetheless, considering that t
he majority has chosen to speak out anyway, I will express agreement that as a g
eneral rule, the President may exercise such powers under Section 17, Article XI
I only under the grant of congressional approval. Certainly, the notion that con
gressional authority is required under Section 17, Article XII is not evident fr
om the provision. Even Fr. Bernas notes that Section 17 does not require, as doe
s Article VI, Section 23(2), that the authorization be by law, thus leaving the im
pression that the authorization can come from the President.37
_______________
37 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines
: A Commentary, 2003 ed., at p. 1183.
309
VOL. 489, MAY 3, 2006
309
After the 1989 coup d etat, President Aquino issued Proclamation No. 503 on 6 Dece
mber 1989, declaring a state of national emergency, and referring therein to Sec
tion 17, Article XII by citing the entire provision. The declaration was subsequ
ently reaffirmed by Congress when two weeks after, it enacted Republic Act No. 6
826. Notably, Section 3(3) of the law authorized the President to temporarily tak
eover or direct the operation of any privately-owned public utility or business
affected with public interest that violates the herein declared national policy.
Tellingly, however, such authority was granted by Congress expressly pursuant to
Article VI, Section 23(2) of the Constitution, and not the take-over provision in
Section 17, Article XII. Evidently, the view that Section 17, Article XII requi
res prior congressional authority has some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17 as requir
ing congressional authority or approval before the takeover under the provision
may be effected. After all, the taking over of a privately owned public utility
or business affected with public interest would involve an infringement on the r
ight of private enterprise to profit; or perhaps even expropriation for a limite
d period. Constitutionally, the taking of property can only be accomplished with
due process of law,38 and the enactment of appropriate legislation prescribing
the terms and conditions under which the President may exercise the powers of th
e State under Section 17 stands as the best assurance that due process of law wo
uld be observed.
The fact that Section 17 is purposely ambivalent as to whether the President may
exercise the power therein with or without congressional approval leads me to c
onclude that it is constitutionally permissible to recognize exceptions, such as
in extreme situations wherein obtention of congressional authority is impossibl
e or inexpedient considering the emer_______________
38 See Section 1, Article III, CONSTITUTION.
310
310
gency. I thus dissent to any proposition that such requirement is absolute under
all circumstances. I maintain that in such extreme situations, the President ma
y exercise such authority subject to judicial review.
It should be admitted that some emergencies are graver and more imminent than ot
hers. It is not within the realm of impossibility that by reason of a particular
ly sudden and grave emergency, Congress may not be able to convene to grant the
necessary congressional authority to the President. Certainly, if bombs from a f
oreign invader are falling over Manila skies, it may be difficult, not to mentio
n unnecessarily onerous, to require convening Congress before the President may
exercise the functions under Section 17, Article XII. The proposition of the maj
ority may be desirable as the general rule, but the correct rule that should be
adopted by the Court should not be so absolute so as to preclude the exercise by

the President of such power under extreme situations.
In response to this argument, the majority cites portions of Araneta v. Dinglasa
n,39 most pertinent of which reads: The point is, under this framework of governm
ent, legislation is preserved for Congress all the time, not excepting periods o
f crisis no matter how serious.
For one, Araneta did not involve a situation wherein the President attempted to
exercise emergency powers without congressional authority; concerning as it did
the exercise by President Quirino of those emergency powers conferred several ye
ars earlier by Congress to President Quezon at the onset of the Pacific phase of
World War II. The Court therein ruled that the emergency that justified then th
e extraordinary grant of powers had since expired, and that there no longer exis
ted any authority on the part of the President to exercise such powers, notwiths
tanding that the law, Commonwealth Act No. 671, did not in term fix the duration
of its effectiveness.
_______________
39 84 Phil. 368 (1949).
311
VOL. 489, MAY 3, 2006
311
Clearly, the context in which the Court made that observation in Araneta is not
the same context within which my own observations oscillate. My own submission i
s premised on the extreme situation wherein Congress may be physically unable to
convene, an exceptional circumstance which the hard-line stance of the majority
makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded that such extreme
circumstance could occur, when it noted President Quezon s claim that he was impel
led to call for a special session of the National Assembly after foreseeing that
it was most unlikely that the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942. 40 That the National Assembly then
was able to convene and pass Commonwealth Act No. 671 was fortunate, but somewha
t a luxury nonetheless. Indeed, it is not beyond the realm of possibility that t
he emergency contemplated would be so grave that a sufficient number of members
of Congress would be physically unable to convene and meet the quorum requiremen
t.
Ultimately though, considering that the authorized or actual takeover under Sect
ion 17, Article XII, is not presented as a properly justiciable issue. Nonethele
ss, and consistent with the general tenor, the majority has undertaken to decide
this non-justiciable issue, and to even place their view in the dispositive por
tion in a bid to enshrine it as doctrine. In truth, the Court s pronouncement on t
his point is actually obiter.It is hoped that should the issue become ripe for a
djudication before this Court, the obiter is not adopted as a precedent without
the qualification that in extreme situations wherein congressional approval is i
mpossible or highly impractical to obtain, the powers under Section 17, Article
XII may be authorized by the President.
_______________
40 Id., at p. 379.
312
312
III. Overbreadth and Void for Vagueness
Doctrines Applicable Not Only To
Free Speech Cases
The majority states that the overbreadth doctrine is an analytical tool developed
for testing on their faces statutes in free speech cases, 41 and may thus be entert
ained in cases involving statutes which, by their terms, seek to regulate only spo
ken words, and not conduct. A similar characterization is made as to the void for
vagueness doctrine, which according to the majority, is subject to the same princi
ples governing overbreadth doctrine . . . also an analytical tool for testing on
their faces statutes in free speech cases. 42
As I noted in my Separate Opinion in Romualdez v. Sandiganbayan,43 citing Justic
e Kapunan, there is a viable distinction between void for vagueness and overbreadth
which the majority sadly ignores.
A view has been proffered that vagueness and overbreadth doctrines are not applica
ble to penal laws. These two concepts, while related, are distinct from each othe
r. On one hand, the doctrine of overbreadth applies generally to statutes that i
nfringe upon freedom of speech. On the other hand, the voidfor-vagueness doctrine
applies to criminal laws, not merely those that regulate speech or other fundame
ntal constitutional right. (not merely those that regulate speech or other funda
mental constitutional rights.) The fact that a particular criminal statute does
not infringe upon free speech does not mean that a facial challenge to the statu
te on vagueness grounds cannot succeed. 44
_______________
41 Decision, infra.
42 Id.
43 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
44 Id., at p. 398, citing Estrada v. Sandiganbayan, 421 Phil. 290; 369 SCRA 394,
J. Kapunan, dissenting, at pp. 382-384; p. 529.
313
VOL. 489, MAY 3, 2006
313
The distinction may prove especially crucial since there has been a long line of
cases in American Supreme Court jurisprudence wherein penal statutes have been
invalidated on the ground that they were void for vagueness. As I cited in Romuald
ez v. Sandiganbayan,45 these cases are Connally v. General Construction Co.,46 L
anzetta v. State of New Jersey,47 Bouie v. City of Columbia,48 Papachristou v. C
ity of Jacksonville,49 Kolender v. Lawson,50 and City of Chicago v. Morales.51
Granting that perhaps as a general rule, overbreadth may find application only i
n free speech 52 cases, it is on the other hand very settled doctrine that a penal
statute regulating conduct, not speech, may be invalidated on the ground of void
for vagueness. In Romualdez, I decried the elevation of the suspect and radical n
ew doctrine that the void for vagueness challenge cannot apply other than in free
speech cases. My view on this point has not changed, and insofar as the ponencia
would hold otherwise, I thus dissent.
Moreover, even though the argument that an overbreadth challenge can be maintain
ed only in free speech cases has more jurisprudential moorings, the rejection of
the challenge on that basis alone may prove unnecessarily simplistic. I maintai
n that there is an even stronger ground on
_______________
45 Id., at pp. 398-401.
46 269 U.S. 385, 393 (1926).
47 306 U.S. 451 (1939).
48 378 U.S. 347 (1964).
49 405 U.S. 156 (1972).
50 461 U.S. 352 (1983).
51 Case No. 97-1121, 10 June 1999.
52 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme
Court invalidated a portion of the Subversive Control Activities Act on the gro
und of overbreadth as it sought to proscribe the exercise the right of free asso
ciation, also within the First Amendment of the United States Constitution but a
distinct right altogether from free expression.

314
314
which the overbreadth and void for vagueness arguments can be refuted that President
ial Proclamation 1017 (PP 1017) neither creates nor diminishes any rights or obl
igations whatsoever. In fact, I submit again that this proposition is the key pe
rspective from which the petitions should be examined.
IV. General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is generally constitut
ional. However, they make an unnecessary distinction with regard to acts of terro
rism, pointing out that Congress has not yet passed a law defining and punishing
terrorism or acts of terrorism.
That may be the case, but does the majority seriously suggest that the President
or the State is powerless to suppress acts of terrorism until the word terrorism
is defined by law? Terrorism has a widely accepted meaning that encompasses many
acts already punishable by our general penal laws. There are several United Nat
ions and multilateral conventions on terrorism,53 as well as declarations made b
y the United Nations General Assembly denouncing and seeking to combat terrorism
.54 There is a general sense in international law as to what constitutes terrori
sm, even if no precise defini_______________
53 To name a few, the Convention on the Prevention and Punishment of Crimes agai
nst Internationally Protected Persons, including Diplomatic Agents (1973); Inter
national Convention for the Suppression of Terrorist Bombings (1997); Internatio
nal Convention for the Suppression of the Financing of Terrorism (1999); the Int
ernational Convention for the Suppression of Acts of Nuclear Terrorism (2005). S
ee United Nations Treaty Collection Conventions on Terrorism, http://untreaty.un.org
/English/Terrorism.asp (last visited, 30 April 2006).
54 See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assemb
ly on 17 February 1995.
315
VOL. 489, MAY 3, 2006
315
tion has been adopted as binding on all nations. Even without an operative law s
pecifically defining terrorism, the State already has the power to suppress and
punish such acts of terrorism, insofar as such acts are already punishable, as t
hey almost always are, in our extant general penal laws. The President, tasked w
ith the execution of all existing laws, already has a sufficient mandate to orde
r the Armed Forces to combat those acts of terrorism that are already punishable
in our Revised Penal Code, such as rebellion, coup d etat, murder, homicide, arso
n, physical injuries, grave threats, and the like. Indeed, those acts which unde
r normal contemplation would constitute terrorism are associated anyway with or
subsumed under lawless violence, which is a term found in the Constitution itsel
f. Thus long ago, the State has already seen it fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or create new pen
al acts, since such power belongs to the legislative alone. Fortunately, General
Order No. 5 does not assume to make such redefinitions. It may have been a diff
erent matter had General Order No. 5 attempted to define acts of terrorism in a ma
nner that would include such acts that are not punished under our statute books,
but the order is not comported in such a way. The proper course of action shoul
d be to construe terrorism not in any legally defined sense, but in its general se
nse. So long as it is understood that acts of terrorism encompasses only those act
s which are already punishable under our laws, the reference is not constitution
ally infirm.
The majority cites a theoretical example wherein a group of persons engaged in a
drinking spree may be arrested by the military or police in the belief that the
y were committing acts of terrorism pursuant to General Order No. 5. Under the s
ame logical framework that group of persons engaged in a drinking spree could ve
ry well be arrested by the military or police in the belief that they are commit
ting acts of lawless violence pursuant to General Order No. 5, instead of acts o
f terrorism. Obviously such act would be abuse and oppres316
316
sion on the part of the military and the police, whether justified under lawless v
iolence or acts of terrorism. Yet following the logic of the majority, the directiv
e to prevent acts of lawless violence should be nullified as well.
If the point of the majority is that there are no justiciable standards on what
constitutes acts of terrorism, it should be pointed out that only the following
scenarios could ensue. For one, a person would actually be arrested and charged
with acts of terrorism , and such arrest or charge would be thrown out of the court
s, since our statute books do not criminalize the specific crime of terrorism. M
ore probably, a person will be arrested and charged for acts that may under the
layperson s contemplation constitutes acts of terrorism, but would be categorized
in the information and charge sheet as actual crimes under our Revised Penal Cod
e. I simply cannot see how General Order No. 5 could validate arrests and convic
tions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of definition and pos
sible broad context of acts of terrorism, seems to be positively applying the argu
ments of overbreadth or void for vagueness, arguments which they earlier rejected as
applicable only in the context of free expression cases. The inconsistency is b
reath-taking. While I disagree with the majority-imposed limitations on the appl
icability of the overbreadth or void for vagueness doctrines, I likewise cannot acce
de to the application of those doctrines in the context of General Order No. 5,
for the same reason that they should not apply to PP 1017. Neither General Order
No. 5 nor PP 1017 is a penal statute, or have an operative legal effect of infr
inging upon liberty, expression or property. As such, neither General Order No.
5 nor PP 1017 can cause the deprivation of life, liberty or property, thus divor
cing those issuances from the context of the due process clause. The same absenc
e of any binding legal effect of these two issuances correspondingly disassociat
es them from the constitutional infringement of free expression or association.
Neither void for vagueness nor overbreadth therefore lie.
317
VOL. 489, MAY 3, 2006
317
Another point. The majority concludes from General Order No. 5 that the military
or police is limited in authority to perform those acts that are necessary and a
ppropriate actions and measures to suppress and prevent acts of terrorism and la
wless violence, and such acts committed beyond such authority are considered ille
gal. I do not dispute such conclusion, but it must be emphasized that necessary a
nd appropriate actions and measures precisely do not authorize the military or po
lice to commit unlawful and unconstitutional acts themselves, even if they be ge
ared towards suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or obligations, or diminish ex
isting ones, it necessarily follows that General Order No. 5, even if premised o
n a state of emergency, cannot authorize the military or police to ignore or vio
late constitutional or statutory rights, or enforce laws completely alien to the
suppression of lawless violence. Again, following the cardinal principle of leg
al hermeneutics earlier adverted to, General Order No. 5 should be viewed in har
mony with the Constitution, and only if the Order irreconcilably deviates from t
he fundamental law should it be struck down.
V. Court Should Refrain Making Any Further Declaration,
For Now, Relating to the Individual Grievances
Raised by the Petitioners in Relation
To PP 1017
I respectfully disagree with the manner by which the majority would treat the voi
d as applied argument presented by the petitioners. The majority adopts the tack
of citing three particular injuries alleged by the petitioners as inflicted with
the implementation of PP 1017. The majority analyzes the alleged injuries, corr
elates them to particular violations of the Bill of Rights, and ultimately concl
udes that such violations were illegal.
318
318
The problem with this approach is that it would forever deem the Court as a trie
r or reviewer at first instance over questions involving the validity of warrant
less arrests, searches, seizures and the dispersal of rallies, all of which enta
il a substantial level of factual determination. I agree that PP 1017 does not e
xpand the grounds for warrantless arrests, searches and seizures or dispersal of
rallies, and that the proclamation cannot be invoked before any court to assert
the validity of such unauthorized actions. Yet the problem with directly adjudi
cating that the injuries inflicted on David, et al., as illegal, would be that s
uch would have been done with undue haste, through an improper legal avenue, wit
hout the appropriate trial of facts, and without even impleading the particular
officers who effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the petitioners upon the i
mplementation of PP 1017 are a source of grave concern. Indubitably, any person
whose statutory or constitutional rights were violated in the name of PP 1017 or
General Order No. 5 deserves redress in the appropriate civil or criminal proce
eding, and even the minority wishes to makes this point as emphatically clear, i
f not moreso, as the majority. Yet a ruling from this Court, without the proper
factual basis or prayer for remuneration for the injury sustained, would ultimat
ely be merely symbolic. While the Court will not be harmed by a symbolic reaffir
mation of commitment to the principles in the Bill of Rights, it will be harmed
by a ruling that unduly and inappropriately expands the very limited function of
the Court as a trier of facts on first instance.
In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that our legal
system may run counter-intuitive in the sense that the seemingly or obviously gu
ilty may still, after trial, be properly acquitted or exonerated; to the extent
that
_______________
55 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga, dissentin
g.
319
VOL. 489, MAY 3, 2006
319
even an accused who murders another person in front of live television cameras b
roadcast to millions of sets is not yet necessarily guilty of the crime of murde
r or homicide.56 Hence, the necessity of a proper trial so as to allow the entir
e factual milieu to be presented, tested and evaluated before the court. In my t
heoretical example, the said accused should nonetheless be acquitted if the pres
ence of exempting circumstances is established. The same principle applies in th
ese cases. Certainly, we in the Court can all agree that PP 1017 cannot be invok
ed to justify acts by the police or military officers that go beyond the Constit
ution and the laws. But the course of prudence dictates that the pronouncement o
f such a doctrine, while enforceable in a court of law, should not yet extend it
self to specific examples that have not yet been properly litigated. The functio
n of this Court is to make legal pronouncements not based on obvious facts, but on
proven facts.
A haphazard declaration by the Court that the arrests or seizures were illegal wou
ld likewise preclude any meaningful review or reevaluation of pertinent legal do
ctrines that otherwise could have been reexamined had these acts been properly c
hallenged in regular order. For example, the matter of the warrantless arrests i
n these cases could have most certainly compelled the Court to again consider th
e doctrine laid down in Umil v. Ramos on warrantless arrests and rebellion as a
continuing crime, a doctrine that may merit renewed evaluation. Yet any healthy
reexamination of Umil, or other precedents for that matter, require the presenta
tion and trial of the proper factual predicates, a course which the majority unf
ortunately short-cuts in this present decision.
Of course, despite the grandiloquent pronouncement by the majority that the acts
complained of by the petitioners and implemented pursuant to General Order No.
5 are illegal, it could nonetheless impose civil, criminal or administrative
_______________
56 Id., at p. 345.
320
320
sanctions on the individual police officers concerned, as these officers had not
been individually identified and given their day in court. Of course, the Court w
ould be left with pie on its face if these persons, once given their day in court
, would be able to indubitably establish that their acts were actually justified
under law. Perhaps worse, the pronouncement of the majority would have had the e
ffect of prejudging these cases, if ever lodged, even before trial on the merits
.
Certainly, a declaration by the majority that PP 1017 or General Order No. 5 can
not justify violation of statutory or constitutional rights (a declaration which
the minority would have no qualms assenting to) would sufficiently arm those pe
titioners and other persons whose rights may have been injured in the implementa
tion of PP 1017, with an impeccable cause of action which they could pursue agai
nst the violators before the appropriate courts. At the same time, if the office
rs or officials concerned have basis to contend that no such rights were violate
d, for justifications independent of PP 1017 or General Order No. 5, such claims
could receive due consideration before the courts. Such a declaration would squ
arely entrench the Court as a defender of the Bill of Rights, foster enforceable
means by which the injured could seek actual redress for the injury sustained,
and preserve the integrity and order of our procedural law.
VI. Conclusion
The country-wide attention that the instant petitions have drawn should not make
the Court lose focus on its principal mission, which is to settle the law of th
e case. On the contrary, the highly political nature of these petitions should s
erve as forewarning for the Court to proceed ex abundante cautelam, lest the ins
titution be unduly dragged into the partisan mud. The credibility of the Court i
s ensured by making decisions in accordance with the Constitution without regard
to the individual personalities involved; with sights set on posterity, oblivio
us of the popular flavor of the day.
321
VOL. 489, MAY 3, 2006
321
By deciding non-justiciable issues and prejudging cases and controversies withou
t a proper trial on the merits, the majority has diminished the potency of this
Court s constitutional power in favor of rhetorical statements that afford no quan
tifiable relief. It is for the poet and the politician to pen beautiful paeans t
o the people s rights and liberties, it is for the Court to provide for viable leg
al means to enforce and safeguard these rights and liberties. When the passions
of these times die down, and sober retrospect accedes, the decision of this Cour
t in these cases will be looked upon as an extended advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those int
erested and tasked with preserving our civil liberties. They may even stand, in
the appropriate contexts, as viable partisan political issues. But the plain fac
t remains that, under legal contemplation, these issuances are valid on their fa
ce, and should result in no constitutional or statutory breaches if applied acco
rding to their letter.
I vote to DISMISS all the petitions.
Petitions partly granted.
Notes. The Supreme Court, however, does not categorically rule that the IBP has ab
solutely no standing to raise constitutional issues, but the IBP must, by way of
allegations and proof, satisfy the Court that it has sufficient stake to obtain
judicial resolution of the controversy. (Integrated Bar of the Philippines vs.
Zamora, 338 SCRA 81 [2000])
The rationale for requiring a party who challenges the constitutionality of a st
atute to allege such a personal stake in the outcome of the controversy is to ass
ure that concrete adverseness which sharpens the presentation of issues upon whi
ch the court so largely depends for illumination of difficult constitutional que
stions. (Farias vs. Executive Secretary, 417 SCRA 503 [2003])
o0o
G.R. No. 142396. February 11, 2003.*

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR SCALZO, respo
ndents.
International Law; Vienna Convention on Diplomatic Relations; Diplomatic Mission
s; Function; Conformably with the Vienna Convention, the functions of the diplom
atic mission involve, by and large, the representation of the interests of the s
ending state and promoting friendly relations with the receiving state. The Vienna
Convention on Diplomatic Relations was a codification of centuries-old customar
y law and, by the time of its ratification on 18 April 1961, its rules of law ha
d long become stable. Among the city states of ancient Greece, among the peoples
of the Mediterranean before the establishment of the Roman Empire, and among th
e states of India, the person of the herald in time of war and the person of the
diplomatic envoy in time of peace were universally held sacrosanct.By the end o
f the 16th century, when the earliest treatises on diplomatic law were published
, the inviolability of ambassadors was firmly established as a rule of customary
international law, Traditionally, the exercise of diplomatic intercourse among
states was undertaken by the head of state himself, as being the preeminent embo
diment of the state he represented, and the foreign secretary, the official usua
lly entrusted with the external affairs of the state. Where a state would wish t
o have a more prominent diplomatic presence in the receiving state, it would the
n send to the latter
_______________
* FIRST DIVISION.
245
245
Minucher vs. Court of Appeals
a diplomatic mission. Conformably with the Vienna Convention, the functions of t
he diplomatic mission involve, by and large, the representation of the interests
of the sending state and promoting friendly relations with the receiving state.
Same; Same; Same; Heads of diplomatic missions, classified. The Convention lists t
he classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state, (b) envoys, ministers or internuncios accredi
ted to the heads of states; and (c) charges d affairs accredited to the ministers
of foreign affairs.Comprising the staff of the (diplomatic) mission are the diplo
matic staff, the administrative staff and the technical and service staff. Only
the heads of missions, as well as members of the diplomatic staff, excluding the
members of the administrative, technical and service staff of the mission, are
accorded diplomatic rank.
Same; same; Same; Diplomatic Immunity; Only diplomatic agents , under the terms of
the Convention, are vested with blanket diplomatic immunity from civil and crimi
nal suits. Only diplomatic agents, under the terms of the Convention, are vested wit
h blanket diplomatic immunity from civil and criminal suits. The Convention defi
nes diplomatic agents as the heads of missions or members of the diplomatic staff,
thus impliedly withholding the same privileges from all others.
Same; Same; Same; Same; Indeed, the main yardstick in ascertaining whether a per
son is a diplomat entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature. It might bear stressing that even consuls,
who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of pas
sports and visas, authentication of documents, and administration of oaths, do n
ot ordinarily enjoy the traditional diplomatic immunities and privileges accorde
d diplomats, mainly for the reason that they are not charged with the duty of re
presenting their states in political matters. Indeed, the main yardstick in asce
rtaining whether a person is a diplomat entitled to immunity is the determinatio
n of whether or not he performs duties of diplomatic nature.
Same; Same; Same; Same; Suing a representative of a state is believed to be, in
effect, suing the state itself the proscription is not accorded for the benefit of
an individual but for the State, in whose service he is, under the maxim par in p
arem, non habet imperium. The precept that a State cannot be sued in the courts of
a foreign state is a long-standing rule of customary international law then clo
sely identified with the personal immunity of a foreign sovereign from suit and,
with the emergence of democratic states, made to attach not just to the person
of the head of state, or his representative, but also distinctly to the state it
self in its
246
246
sovereign capacity. If the acts giving rise to a suit are those of a foreign gov
ernment done by its foreign agent, although not necessarily a diplomatic persona
ge, but acting in his official capacity, the complaint could be barred by the im
munity of the foreign sovereign from suit without its consent. Suing a represent
ative of a state is believed to be, in effect, suing the state itself. The prosc
ription is not accorded for the benefit of an individual but for the State, in w
hose service he is, under the maxim par in parem, non habet imperium that all states
are sovereign equals and cannot assert jurisdiction over one another.
Same; Same; Same; Same; Exception; The doctrine of immunity from suit will not a
pply and may not be invoked where the public official is being sued in his priva
te and personal capacity as an ordinary citizen. (T)he doctrine of immunity from s
uit will not apply and may not be invoked where the public official is being sue
d in his private and personal capacity as an ordinary citizen. The cloak of prot
ection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where
the public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable
in his personal private capacity for whatever damage he may have caused by his a
ct done with malice and in bad faith or beyond the scope of his authority and ju
risdiction.
PETITION for review on certiorari of a decision of the Court of Appeals.
Vicente D. Millora for petitioner.
Abello, Concepcion, Regala and Cruz for private respondent.
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act
No. 6425, otherwise also known as the Dangerous Drugs Act of 1972, was filed again
st petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Co
urt, Branch 151, of Pasig City. The criminal charge followed a buy-bust operation
conducted by the Philippine police narcotic agents in the house of Minucher, an
Iranian national, where a quantity of heroin, a prohibited drug, was said to hav
e been seized. The narcotic agents were accompanied by private respondent Arthur
Scalzo who would, in due time, become one of the principal witnesses for the
247
247
prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a dec
ision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Tr
ial Court (RTC), Branch 19, of Manila for damages on account of what he claimed
to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The M
anila RTC detailed what it had found to be the facts and circumstances surroundi
ng the case.
The testimony of the plaintiff disclosed that he is an Iranian national. He came
to the Philippines to study in the University of the Philippines in 1974. In 197
6, under the regime of the Shah of Iran, he was appointed Labor Attach for the Ir
anian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran w
as deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Natio
ns and continued to stay in the Philippines. He headed the Iranian National Resi
stance Movement in the Philippines.
He came to know the defendant on May 13, 1986, when the latter was brought to his
house and introduced to him by a certain Jose Iigo, an informer of the Intellige
nce Unit of the military. Jose Iigo, on the other hand, was met by plaintiff at t
he office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff
assisted as head of the anti-Khomeini movement in the Philippines.
During his first meeting with the defendant on May 13, 1986, upon the introductio
n of Jose Inigo, the defendant expressed his interest in buying caviar. As a mat
ter of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 fo
r it. Selling caviar, aside from that of Persian carpets, pistachio nuts and oth
er Iranian products was his business after the Khomeini government cut his pensi
on of over $3,000.00 per month. During their introduction in that meeting, the d
efendant gave the plaintiff his calling card, which showed that he is working at
the US Embassy in the Philippines, as a special agent of the Drug Enforcement A
dministration, Department of Justice, of the United States, and gave his address
as US Embassy, Manila. At the back of the card appears a telephone number in de
fendant s own handwriting, the number of which he can also be contacted.
It was also during this first meeting that plaintiff expressed his desire to obta
in a US Visa for his wife and the wife of a countryman named Abbas Torabian. The
defendant told him that he [could] help plaintiff for a fee of $2,000.00 per vi
sa, Their conversation, however, was more concentrated on politics, carpets and
caviar. Thereafter, the defendant promised to see plaintiff again.
248
248
On May 19, 1986, the defendant called the plaintiff and invited the latter for di
nner at Mario s Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaint
iff brought the merchandize but for the reason that the defendant was not yet th
ere, he requested the restaurant people to x x x place the same in the refrigera
tor. Defendant, however, came and plaintiff gave him the caviar for which he was
paid. Then their conversation was again focused on politics and business.
On May 26, 1986, defendant visited plaintiff again at the latter s residence for 18
years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which
plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00.
For the reason that defendant did not yet have the money, they agreed that defen
dant would come back the next day. The following day, at 1:00 p.m., he came back
with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, g
ave him the pair of carpets.
At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to
plaintiff s house and directly proceeded to the latter s bedroom, where the latter a
nd his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe
in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the
latter s fee in obtaining a visa for plaintiff s wife. The defendant told him that
he would be leaving the Philippines very soon and requested him to come out of t
he house for a while so that he can introduce him to his cousin waiting in a cab
. Without much ado, and without putting on his shirt as he was only in his pajam
a pants, he followed the defendant where he saw a parked cab opposite the street
. To his complete surprise, an American jumped out of the cab with a drawn highpowered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Am
ericans, all armed. He was handcuffed and after about 20 minutes in the street,
he was brought inside the house by the defendant. He was made to sit down while
in handcuffs while the defendant was inside his bedroom. The defendant came out
of the bedroom and out from defendant s attach case, he took something and placed i
t on the table in front of the plaintiff. They also took plaintiff s wife who was
at that time at the boutique near his house and likewise arrested Torabian, who
was playing chess with him in the bedroom and both were handcuffed together. Pla
intiff was not told why he was being handcuffed and why the privacy of his house
, especially his bedroom was invaded by defendant. He was not allowed to use the
telephone. In fact, his telephone was unplugged. He asked for any warrant, but
the defendant told him to shut up. He was nevertheless told that he would be able
to call for his lawyer who can defend him.
The plaintiff took note of the fact that when the defendant invited him to come o
ut to meet his cousin, his safe was opened where he kept the $24,000.00 the defe
ndant paid for the carpets and another $8,000.00 which he also placed in the saf
e together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000
.00. He also discovered missing upon
249
249
his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a pain
ting he bought for P30,000.00 together with his TV and betamax sets. He claimed
that when he was handcuffed, the defendant took his keys from his wallet. There
was, therefore, nothing left in his house.
That his arrest as a heroin trafficker x x x had been well publicized throughout
the world, in various newspapers, particularly in Australia, America, Central As
ia and in the Philippines. He was identified in the papers as an international d
rug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not on
ly in the Philippines, but also in America and in Germany. His friends in said p
laces informed him that they saw him on TV with said news.
After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and wa
ter. 1
During the trial, the law firm of Luna, Sison and Manas, filed a special appeara
nce for Scalzo and moved for extension of time to file an answer pending a suppo
sed advice from the United States Department of State and Department of Justice
on the defenses to be raised. The trial court granted the motion. On 27 October
1988, Scalzo filed another special appearance to quash the summons on the ground
that he, not being a resident of the Philippines and the action being one in pe
rsonam, was beyond the processes of the court. The motion was denied by the cour
t, in its order of 13 December 1988, holding that the filing by Scalzo of a moti
on for extension of time to file an answer to the complaint was a voluntary appe
arance equivalent to service of summons which could likewise be construed a waiv
er of the requirement of formal notice. Scalzo filed a motion for reconsideratio
n of the court order, contending that a motion for an extension of time to file
an answer was not a voluntary appearance equivalent to service of summons since
it did not seek an affirmative relief. Scalzo argued that in cases involving the
United States government, as well as its agencies and officials, a motion for e
xtension was peculiarly unavoidable due to the need (1) for both the Department
of State and the Department of Justice to agree on the defenses to be raised and
(2) to refer the case to a Philippine lawyer who would be expected to first rev
iew the case. The court a quo denied the motion for reconsideration in its order
of 15 October 1989.
_______________
1 Rollo, pp. 39-42.

250
250
Scalzo filed a petition for review with the Court of Appeals, there docketed CAG.R. No. 17023, assailing the denial. In a decision, dated 06 October 1989, the
appellate court denied the petition and affirmed the ruling of the trial court.
Scalzo then elevated the incident in a petition for review on certiorari, docket
ed G.R. No. 91173, to this Court. The petition, however, was denied for its fail
ure to comply with SC Circular No. 1-88; in any event, the Court added, Scalzo h
ad failed to show that the appellate court was in error in its questioned judgme
nt.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answe
r) and (b) setting the case for the reception of evidence. On 12 March 1990, Sca
lzo filed a motion to set aside the order of default and to admit his answer to
the complaint. Granting the motion, the trial court set the case for pretrial. I
n his answer, Scalzo denied the material allegations of the complaint and raised
the affirmative defenses (a) of Minucher s failure to state a cause of action in
his complaint and (b) that Scalzo had acted in the discharge of his official dut
ies as being merely an agent of the Drug Enforcement Administration of the Unite
d States Department of Justice. Scalzo interposed a counter-claim of P100,000.00
to answer for attorneys fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil
case, Scalzo filed a motion to dismiss the complaint on the ground that, being
a special agent of the United States Drug Enforcement Administration, he was ent
itled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414
of the United States Embassy, dated 29 May 1990, addressed to the Department of
Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of V
ice Consul Donna Woodward, certifying that the note is a true and faithful copy
of its original. In an order of 25 June 1990, the trial court denied the motion
to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with thi
s Court, docketed G.R. No. 94257 and entitled Arthur W. Scalzo, Jr. vs. Hon. Wenc
eslao Polo, et al., asking that the complaint in Civil Case No. 88-45691 be order
ed dismissed. The case was referred to the Court of Appeals, there docketed CA-G
.R. SP No. 22505, per this Court s resolution of 07 August 1990. On 31 October 199
0, the Court of Appeals promulgated its decision
251
251
sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the c
omplaint against him. Minucher filed a petition for review with this Court, dock
eted G.R. No. 97765 and entitled Khosrow Minucher vs. the Honorable Court of Appe
als, et al. (cited in 214 SCRA 242), appealing the judgment of the Court of Appea
ls. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice
) Hilario Davide, Jr., this Court reversed the decision of the appellate court a
nd remanded the case to the lower court for trial. The remand was ordered on the
theses (a) that the Court of Appeals erred in granting the motion to dismiss of
Scalzo for lack of jurisdiction over his person without even considering the is
sue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint co
ntained sufficient allegations to the effect that Scalzo committed the imputed a
cts in his personal capacity and outside the scope of his official duties and, a
bsent any evidence to the contrary, the issue on Scalzo s diplomatic immunity coul
d not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995
, the trial court reached a decision; it adjudged:

WHEREFORE, and in view of all the foregoing considerations, judgment is hereby re
ndered for the plaintiff, who successfully established his claim by sufficient e
vidence, against the defendant in the manner following:
Adjudging defendant liable to plaintiff in actual and compensatory damages of P52
0,000,00; moral damages in the sum of P10 million; exemplary damages in the sum
of P100,000.00; attorney s fees in the sum of P200,000.00 plus costs.
The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lie
n of the Court on this judgment to answer for the unpaid docket fees considering
that the plaintiff in this case instituted this action as a pauper litigant.
2
While the trial court gave credence to the claim of Scalzo and the evidence pres
ented by him that he was a diplomatic agent entitled to immunity as such, it rul
ed that he, nevertheless, should be held accountable for the acts complained of
committed outside his official duties. On appeal, the Court of Appeals reversed
the
_______________
2 Rollo, p. 51.
252
252
decision of the trial court and sustained the defense of Scalzo that he was suff
iciently clothed with diplomatic immunity during his term of duty and thereby im
mune from the criminal and civil jurisdiction of the Receiving State pursuant to t
he terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-f
old issue: (1) whether or not the doctrine of conclusiveness of judgment, follow
ing the decision rendered by this Court in G.R. No. 97765, should have precluded
the Court of Appeals from resolving the appeal to it in an entirely different m
anner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic imm
unity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata,
would require 1) the finality of the prior judgment, 2) a valid jurisdiction ov
er the subject matter and the parties on the part of the court that renders it,
3) a judgment on the merits, and 4) an identity of the parties, subject matter a
nd causes of action.3 Even while one of the issues submitted in G.R. No. 97765 whet
her or not public respondent Court of Appeals erred in ruling that private respo
ndent Scalzo is a diplomat immune from civil suit conformably with the Vienna Co
nvention on Diplomatic Relations is also a pivotal question raised in the instant p
etition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality, indeed, the Court there has made this observation
It may be mentioned in this regard that private respondent himself, in his Pre-tr
ial Brief filed on 13 June 1990, unequivocally states that he would present docu
mentary evidence consisting of DEA records on his investigation and surveillance
of plaintiff and on his position and duties as DEA special agent in Manila. Hav
ing thus reserved his right to present evidence in support of his position, whic
h is the basis for the alleged diplomatic immunity, the barren self-serving clai
m in the belated motion to dismiss cannot be relied upon for a reasonable, intel
ligent and fair resolution of the issue of diplomatic immunity. 4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing
his functions as an agent of the
_______________
3 Linzag vs. CA, 291 SCRA 304 (1998).
4 Minucher vs. Court of Appeals, 214 SCRA 242 (1992).
253

253
United States Drug Enforcement Agency as conducting surveillance operations on su
spected drug dealers in the Philippines believed to be the source of prohibited
drugs being shipped to the U.S., (and) having ascertained the target, (he then)
would inform the Philippine narcotic agents (to) make the actual arrest. Scalzo h
as submitted to the trial court a number of documents
1. Exh. 2 Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. 1 Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. 5 Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. 6 Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. 7 Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. 3 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of
Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk
of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. 4 Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. 3 ); and
8. Exh. 8 Letter dated 18 November 1992 from the Office of the Protocol, Department
of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chie
f Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embas
sy accordingly advised the Executive Department of the Philippine Government tha
t Scalzo was a member of the diplomatic staff of the United States diplomatic mi
ssion from his arrival in the Philippines on 14 October 1985 until his departure
on 10 August 1988; (2) that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with respect to the ca
se pursuant to the provisions of the Vienna Convention on Diplomatic Relations;
and (3) that the United States Embassy repeatedly urged the Department of Foreig
n Affairs to take appropriate action to inform the trial court of Scalzo s diploma
tic immunity. The other documentary exhibits were presented to indicate that: (1
) the Philippine government itself, through its Executive Department, recognizin
g and respecting the diplomatic status of Scalzo, formally advised the
_______________
5 For documentary Exhibits Nos. 1-8 , see Rollo, pp. 143-155.
254
254
Judicial Department of his diplomatic status and his entitlement to all diplomatic
privileges and immunities under the Vienna Convention; and (2) the Department o
f Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additiona
lly presented Exhibits 9 to 13 consisting of his reports of investigation on the sur
veillance and subsequent arrest of Minucher, the certification of the Drug Enfor
cement Administration of the United States Department of Justice that Scalzo was
a special agent assigned to the Philippines at all times relevant to the compla
int, and the special power of attorney executed by him in favor of his previous
counsel6 to show (a) that the United States Embassy, affirmed by its Vice Consul
, acknowledged Scalzo to be a member of the diplomatic staff of the United State
s diplomatic mission from his arrival in the Philippines on 14 October 1985 unti
l his departure on 10 August 1988, (b) that, on May 1986, with the cooperation o
f the Philippine law enforcement officials and in the exercise of his functions
as member of the mission, he investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine Department of Foreign Affairs itsel
f recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attach of the United
States diplomatic mission and accredited with diplomatic status by the Governmen
t of the Philippines. In his Exhibit 12, Scalzo described the functions of the o
verseas office of the United States Drug Enforcement Agency, i.e., (1) to provid
e criminal investigative expertise and assistance to foreign law enforcement age

ncies on narcotic and drug control programs upon the request of the host country
, 2) to establish and maintain liaison with the host country and counterpart for
eign law enforcement officials, and 3) to conduct complex criminal investigation
s involving international criminal conspiracies which affect the interests of th
e United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-ol
d customary law and, by the time of its ratification on 18 April 1961, its rules
of law had long become stable. Among the city states of ancient Greece, among t
he peoples of the Mediterranean before the establishment of the Roman Empire, an
d among the states of India, the person of the herald in time of war and the per
son of the diplomatic envoy in time of peace were uni_______________
6 For Documentary Exhibits Nos.
255
9-13 , See Rollo, pp. 156-168.

255
versally held sacrosanct.7By the end of the 16th century, when the earliest trea
tises on diplomatic law were published, the inviolability of ambassadors was fir
mly established as a rule of customary international law,8 Traditionally, the ex
ercise of diplomatic intercourse among states was undertaken by the head of stat
e himself, as being the preeminent embodiment of the state he represented, and t
he foreign secretary, the official usually entrusted with the external affairs o
f the state. Where a state would wish to have a more prominent diplomatic presen
ce in the receiving state, it would then send to the latter a diplomatic mission
. Conformably with the Vienna Convention, the functions of the diplomatic missio
n involve, by and large, the representation of the interests of the sending stat
e and promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state,10 (b) envoys,11 ministe
rs or internuncios accredited to the
_______________
7 Eileen Denza, Diplomatic Law, A Commentary on the Vienna Convention on Diplomat
ic Relations, 2nd Edition, Claredon Press, Oxford, 1998, at 210.
8 Ibid.
9 Article 3 of the Vienna Convention enumerates the functions of the diplomatic
mission as
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of
its nationals, within the limits permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receivin
g State, and reporting thereon to the Government of the sending State;
(e) promoting friendly relations between the sending State and the receiving Sta
te, and developing their economic, cultural and scientific relations.
10 Ambassadors are diplomatic agents of the first class, who deal, as a rule wit
h the Minister of Foreign Affairs or the Secretary of State, as the case may be.
(Melquiades J. Gamboa, Elements of Diplomatic and Consular Practice, A Glossary,
Central Lawbook Publishing, Co., 1966, p. 19.)
11Envoys are diplomatic agents of the second class. This is the title of the hea
d of legation as distinguished from an embassy, the head of which
256
256
heads of states; and (c) charges d affairs12 accredited to the ministers of forei
gn affairs.13 Comprising the staff of the (diplomatic) mission are the diplomatic
staff, the administrative staff and the technical and service staff. Only the he
ads of missions, as well as members of the diplomatic staff, excluding the membe
rs of the administrative, technical and service staff of the mission, are accord
ed diplomatic rank. Even while the Vienna Convention on Diplomatic Relations pro
vides for immunity to the members of diplomatic missions, it does so, neverthele
ss, with an understanding that the same be restrictively applied. Only diplomatic
agents, under the terms of the Convention, are vested with blanket diplomatic im
munity from civil and criminal suits. The Convention defines diplomatic agents as
the heads of missions or members of the diplomatic staff, thus impliedly withhol
ding the same privileges from all others. It might bear stressing that even cons
uls, who represent their respective states in concerns of commerce and navigatio
n and perform certain administrative and
_______________
is called Ambassador Extraordinary and Plenipotentiary. Like the Ambassador, the
envoy is also accredited to the Head of State. (Gamboa, p. 190.)
12 Charges d Affairs are either en titre or ad interim. Charges d Affairs en titre
are appointed on a permanent basis and belong to the fourth class of diplomatic
envoys, the other three being ambassadors, ministers plenipotentiary and envoys
extraordinary, and ministers resident. He is the head of the legation in his ow
n right and is not accredited to the head of State but to the foreign office. Ac
cording to Radloric, charges d affairs are sometimes used to describe a person wh
o has been placed in custody of the archives and other property of a mission in
a country with which formal diplomatic relations are not maintained. Charges d af
fairs ad interim, in contrast are usually those second in command of the diploma
tic mission minister, counselor or first secretary, who are only temporarily in ch
arge of the mission during the absence of the head of the mission. He is not acc
redited either to the Head of State or the Foreign Office. (Gamboa, Ibid., pp. 5
1-52.)
13 The classification of diplomatic representatives was considered significant b
efore because direct communication with the head of state depended on the rank o
f the diplomat and, moreover, only powerful states were regarded as entitled to
send envoys of the highest rank. At present however, diplomatic matters are usua
lly discussed not with the head of state but with the foreign secretary regardle
ss of the diplomat s rank. Moreover, it has become the practice now for even the s
mallest and the weakest states to send diplomatic representatives of the highest
rank, even to the major powers. (Cruz, International Law, 1985 Edition, p. 145.
)
257
257
notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional
diplomatic immunities and privileges accorded diplomats, mainly for the reason t
hat they are not charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a person is a diplo
mat entitled to immunity is the determination of whether or not he performs duti
es of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13 , that he was an Assistant Atta
ch of the United States diplomatic mission and was accredited as such by the Phil
ippine Government. An attach belongs to a category of officers in the diplomatic
establishment who may be in charge of its cultural, press, administrative or fin
ancial affairs. There could also be a class of attaches belonging to certain min
istries or departments of the government, other than the foreign ministry or dep
artment, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, sc
ience, and customs attaches, or the like. Attaches assist a chief of mission in
his duties and are administratively under him, but their main function is to obs
erve, analyze and interpret trends and developments in their respective fields i
n the host country and submit reports to their own ministries or departments in
the home gov-ernment.14 These officials are not generally regarded as members of
the diplomatic mission, nor are they normally designated as having diplomatic r
ank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes
Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990
, 25 October 1991 and 17 November 1992. The presentation did nothing much to all
eviate the Court s initial reservations in G.R. No. 97765, viz.:
While the trial court denied the motion to dismiss, the public respondent gravely
abused its discretion in dismissing Civil Case No. 8845691 on the basis of an e
rroneous assumption that simply because of the diplomatic note, the private resp
ondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.
x x x
x x x
x x x
_______________
14 Gamboa, supra, pp. 32-33.
258
258
And now, to the core issue the alleged diplomatic immunity of the private responden
t. Setting aside for the moment the issue of authenticity raised by the petition
er and the doubts that surround such claim, in view of the fact that it took pri
vate respondent one (1) year, eight (8) months and seventeen (17) days from the
time his counsel filed on 12 September 1988 a Special Appearance and Motion aski
ng for a first extension of time to file the Answer because the Departments of S
tate and Justice of the United States of America were studying the case for the
purpose of determining his defenses, before he could secure the Diplomatic Note
from the US Embassy in Manila, and even granting for the sake of argument that s
uch note is authentic, the complaint for damages filed by petitioner cannot be p
eremptorily dismissed.
x x x
x x x
x x x
There is of course the claim of private respondent that the acts imputed to him w
ere done in his official capacity. Nothing supports this self-serving claim othe
r than the so-called Diplomatic Note. x x x. The public respondent then should h
ave sustained the trial court s denial of the motion to dismiss. Verily, it should
have been the most proper and appropriate recourse. It should not have been ove
rwhelmed by the self-serving Diplomatic Note whose belated issuance is even susp
ect and whose authenticity has not yet been proved. The undue haste with which r
espondent Court yielded to the private respondent s claim is arbitrary.
A significant document would appear to be Exhibit No. 08, dated 08 November 1992
, issued by the Office of Protocol of the Department of Foreign Affairs and sign
ed by Emmanuel C. Fernandez, Assistant Secretary, certifying that the records of
the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of o
ffice in the Philippines (from 14 October 1985 up to 10 August 1988) was listed
as an Assistant Attach of the United States diplomatic mission and was, therefore
, accredited diplomatic status by the Government of the Philippines. No certified
true copy of such records, the supposed bases for the belated issuance, was prese
nted in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the ex
ecutive branch of the government. In World Health Organization vs. Aquino15 the
Court has recognized that, in such matters, the hands of the courts are virtuall
y tied. Amidst apprehensions of indiscriminate and incautious grant of immunity,
designed to gain exemption from the jurisdiction of courts, it
_______________
15 48 SCRA 242 (1972).

259
259
should behoove the Philippine government, specifically its Department of Foreign
Affairs, to be most circumspect, that should particularly be no less than compe
lling, in its post litem motam issuances. It might be recalled that the privileg
e is not an immunity from the observance of the law of the territorial sovereign
or from ensuing legal liability; it is, rather, an immunity from the exercise o
f territorial jurisdiction.16 The government of the United States itself, which
Scalzo claims to be acting for, has formulated its standards for recognition of
a diplomatic agent. The State Department policy is to only concede diplomatic st
atus to a person who possesses an acknowledged diplomatic title and performs duti
es of diplomatic nature. 17Supplementary criteria for accreditation are the posses
sion of a valid diplomatic passport or, from States which do not issue such pass
ports, a diplomatic note formally representing the intention to assign the perso
n to diplomatic duties, the holding of a non-immigrant visa, being over twenty-o
ne years of age, and performing diplomatic functions on an essentially full-time
basis.18 Diplomatic missions are requested to provide the most accurate and des
criptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate func
tional cate-gory.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it wa
s sufficiently established that, indeed, he worked for the United States Drug En
forcement Agency and was tasked to conduct surveillance of suspected drug activi
ties within the country on the dates pertinent to this case. If it should be asc
ertained that Arthur Scalzo was acting well within his assigned functions when h
e committed the acts alleged in the complaint, the present controversy could the
n be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a lo
ng-standing rule of customary international law then closely identified with the
personal immunity of a foreign sovereign
_______________
16 J.L. Brierly, The Law of Nations,
. 244.
17 Denza, supra, at p. 16.
18 Ibid.
19 Ibid., at p. 55.
260
Oxford University Press, 6th Edition, 1963, p
260
from suit20 and, with the emergence of democratic states, made to attach not jus
t to the person of the head of state, or his representative, but also distinctly
to the state itself in its sovereign capacity.21 If the acts giving rise to a s
uit are those of a foreign government done by its foreign agent, although not ne
cessarily a diplomatic personage, but acting in his official capacity, the compl
aint could be barred by the immunity of the foreign sovereign from suit without
its consent. Suing a representative of a state is believed to be, in effect, sui
ng the state itself. The proscription is not accorded for the benefit of an indi
vidual but for the State, in whose service he is, under the maxim par in parem, no
n habet imperium that all states are sovereign equals and cannot assert jurisdicti
on over one another.22 The implication, in broad terms, is that if the judgment
against an official would require the state itself to perform an affirmative act
to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit

_______________
20 Charles G. Fenwick, International Law, Appleton-Century-Crofts, Inc., New York,
1948, pp. 307-308.
21 The international law on sovereign immunity of states from suit in the courts
of another state has evolved from national court decisions with good deal of va
riance in perspectives. Even though national cases have been the major source of
pronouncements on sovereign immunity, it should be noted that these constitute
evidence of customary international law now widely recognized. In the latter hal
f of the 20th century, a great deal of consensus on what is covered by sovereign
immunity appears to be emerging, i.e., that state immunity covers only acts whi
ch deal with the government functions of a state, and excludes, any of its comme
rcial activities, or activities not related to sovereign acts. The consensus invol
ves a more defined differentiation between public acts (juri imperil) and privat
e acts (jure gestionis). (Gary L. Maris, International Law, An Introduction, Unive
rsity Press of America, 1984, p. 119; D.W. Grieg, International Law, London Butter
worths, 1970, p. 221.)
The United States for example, does not claim immunity for its publicly owned or
operated merchant vessels. The Italian courts have rejected claims of immunity
from the US Shipping Board, although a state body, as it could not be identified
with the American government on the ground that undertaking maritime navigation
and business as a commercial enterprise do not constitute a sovereign act. (D.W
. Grieg, International Law, London Butterworths, 1970, p. 221.)
22 See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G.
Fenwick, International Law, New York, 3rd Edition (1948), p. 307.
261
261
must be regarded as being against the state itself, although it has not been for
mally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United State
s Air Force and special officers of the Air Force Office of Special Investigator
s charged with the duty of preventing the distribution, possession and use of pr
ohibited drugs, this Court has ruled
While the doctrine (of state immunity) appears to prohibit only suits against the
state without its consent, it is also applicable to complaints filed against of
ficials of the state for acts allegedly performed by them in the discharge of th
eir duties. x x x. It cannot for a moment be imagined that they were acting in t
heir private or unofficial capacity when they apprehended and later testified ag
ainst the complainant. It follows that for discharging their duties as agents of
the United States, they cannot be directly impleaded for acts imputable to thei
r principal, which has not given its consent to be sued. x x x As they have acte
d on behalf of the government, and within the scope of their authority, it is th
at government, and not the petitioners personally, [who were] responsible for th
eir acts. 25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals26 elaborates:
It is a different matter where the public official is made to account in his capa
city as such for acts contrary to law and injurious to the rights of the plainti
ff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Te
lecommunications, et al. vs. Aligaen, et al. (33 SCRA 368): Inasmuch as the State
authorizes only legal acts by its officers, unauthorized acts of government off
icials or officers are not acts of the State, and an action against the official
s or officers by one whose rights have been invaded or violated by such acts, fo
r the protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. In the same tenor, it has been said that an
action at law or suit in equity against a State officer or the director of a Sta
te department on the ground that, while claiming to act for the State, he violat
es or invades the personal and property rights of the plaintiff, under an uncons
titutional act or under an assumption of authority which he does not have, is no
t a suit
_______________
23 United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26
February 1990, 182 SCRA 644.
24 182 SCRA 644 (1982).
25 At pp. 653-659.
26 191 SCRA 713 (1990).
262
262
against the State within the constitutional provision that the State may not be
sued without its consent. The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an injustice.
x x x
x x x
x x x
(T)he doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an ord
inary citizen. The cloak of protection afforded the officers and agents of the g
overnment is removed the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that
a public official may be liable in his personal private capacity for whatever da
mage he may have caused by his act done with malice and in bad faith or beyond t
he scope of his authority and jurisdiction. 27
A foreign agent, operating within a territory, can be cloaked with immunity from
suit but only as long as it can be established that he is acting within the dir
ectives of the sending state. The consent of the host state is an indispensable
requirement of basic courtesy between the two sovereigns. Guinto and Shauf both
involve officers and personnel of the United States, stationed within Philippine
territory, under the RP-US Military Bases Agreement. While evidence is wanting
to show any similar agreement between the governments of the Philippines and of
the United States (for the latter to send its agents and to conduct surveillance
and related activities of suspected drug dealers in the Philippines), the conse
nt or imprimatur of the Philippine government to the activities of the United St
ates Drug Enforcement Agency, however, can be gleaned from the facts heretofore
elsewhere mentioned. The official exchanges of communication between agencies of
the government of the two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States Embassy, as well
as the participation of members of the Philippine Narcotics Command in the buy-bu
st operation conducted at the residence of Minucher at the behest of Scalzo, may
be inadequate to support the diplomatic status of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not conse
nt, to the activities within Philippine territory of agent Scalzo of the United
States Drug Enforcement
_______________
27 At pp. 727-728.
263
263
Agency. The job description of Scalzo has tasked him to conduct surveillance on
suspected drug suppliers and, after having ascertained the target, to inform loc
al law enforcers who would then be expected to make the arrest. In conducting su
rveillance activities on Minucher, later acting as the poseur-buyer during the b

uy-bust operation, and then becoming a principal witness in the criminal case ag
ainst Minucher, Scalzo hardly can be said to have acted beyond the scope of his
official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an ag
ent of the United States Drug Enforcement Agency allowed by the Philippine gover
nment to conduct activities in the country to help contain the problem on the dr
ug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., conc
ur.
Petition denied.
Note. While sovereignty has traditionally been deemed absolute and all-encompassin
g on the domestic level, it is however subject to restrictions and limitations v
oluntarily agreed to by the Philippines, expressly or impliedly, as a member of
the family of nations. (Taada vs. Angara, 272 SCRA 18 [1997])
o0o
G.R. No. 125865. January 28, 2000.*

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
International Law; Foreign Affairs; Diplomatic Immunity; Courts; Due Process; Co
urts cannot blindly adhere and take on its face a communication from the Departm
ent of Foreign Affairs that a
________________
* FIRST DIVISION.
693
VOL. 323, JANUARY 28, 2000
693
Liang vs. People
particular person is covered by any immunity; Due process is a right of the accu
sed as much as it is of the prosecution. Courts cannot blindly adhere and take on
its face the communication from the DFA that petitioner is covered by any immuni
ty. The DFA s determination that a certain person is covered by immunity is only p
reliminary which has no binding effect in courts. In receiving ex-parte the DFA s
advice and in motu proprio dismissing the two criminal cases without notice to t
he prosecution, the latter s right to due process was violated. It should be noted
that due process is a right of the accused as much as it is of the prosecution.
The needed inquiry in what capacity petitioner was acting at the time of the al
leged utterances requires for its resolution evidentiary basis that has yet to b
e presented at the proper time. At any rate, it has been ruled that the mere inv
ocation of the immunity clause does not ipso facto result in the dropping of the
charges.
Same; Same; Same; Criminal Law; Slander; Slandering a person could not possibly
be covered by the immunity agreement between the Asian Development Bank and the
Republic of the Philippines because our laws do not allow the ccmmission of a cr
ime, such as defamation, in the name of official duty. Slandering a person could n
ot possibly be covered by the immunity agreement because our laws do not allow t
he commission of a crime, such as defamation, in the name of official duty. The
imputation of theft is ultra vires and cannot be part of official functions. It
is well-settled principle of law that a public official may be liable in his per
sonal private capacity for whatever damage he may have caused by his act done wi
th malice or in bad faith or beyond the scope of his authority or jurisdiction.
It appears that even the government s chief legal counsel, the Solicitor General,
does not support the stand taken by petitioner and that of the DFA.
Courts; Criminal Procedure; Preliminary Investigation; Preliminary investigation
is not a matter of right in cases cognizable by the MeTC being purely a statutory
right, it may be invoked only when specifically granted by law. On the contention
that there was no preliminary investigation conducted, suffice it to say that p
reliminary investigation is not a matter of right in cases cognizable by the MeT
C such as the one at bar. Being purely a statutory right, preliminary investigat
ion may be invoked only when specifically granted by law. The rule on criminal p
rocedure is clear that no preliminary investigation is required in cases falling
within the 7
694
694
Liang vs. People
jurisdiction of the MeTC. Besides, the absence of preliminary investigation does
not affect the court s jurisdiction nor does it impair the validity of the inform
ation or otherwise render it defective.

PETITION for review on certiorari of a decision of the Regional Trial Court of P
asig City, Br. 160.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for petitioner.
The Solicitor General for respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Someti
me in 1994, for allegedly uttering defamatory words against fellow ADB worker Jo
yce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluy
ong City with two counts of grave oral defamation docketed as Criminal Cases Nos
. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioner s bail at P2,400.00 per criminal charge, the MeTC re
leased him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an office of protocol from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section
45 of the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the sa
id protocol communication that petitioner is immune from suit, the MeTC judge wi
thout notice to the prosecution dismissed the two criminal cases. The latter fil
ed a motion for reconsideration which was opposed by the DFA. When its motion wa
s denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and or
dered the latter court to enforce the warrant of arrest it earlier issued. After
the motion for reconsideration was denied, petitioner
695
VOL. 323, JANUARY 28, 2000
695
Liang vs. People
elevated the case to this Court via a petition for review arguing that he is cov
ered by immunity under the Agreement and that no preliminary investigation was h
eld before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from
the DFA that petitioner is covered by any immunity. The DFA s determination that a
certain person is covered by immunity is only preliminary which has no binding
effect in courts. In receiving ex-parte the DFA s advice and in motu proprio dismi
ssing the two criminal cases without notice to the prosecution, the latter s right
to due process was violated. It should be noted that due process is a right of
the accused as much as it is of the prosecution. The needed inquiry in what capa
city petitioner was acting at the time of the alleged utterances requires for it
s resolution evidentiary basis that has yet to be presented at the proper time.1
At any rate, it has been ruled that the mere invocation of the immunity clause
does not ipso facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts
and consultants performing missions for the Bank shall enjoy the following privi
leges and immunities:
a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception tha
t the act was done in official capacity. It is therefore necessary to determine if
petitioner s case falls within the ambit of Section 45(a). Thus, the prosecution
should have been given the chance to rebut the DFA protocol
________________
1 See United States v. Guinto, 182 SCRA 644 (1990).
2 Chavez v. Sandiganbayan, 193 SCRA 282 (1991).

696
696
Liang vs. People
and it must be accorded the opportunity to present its controverting evidence, s
hould it so desire.
Third, slandering a person could not possibly be covered by the immunity agreeme
nt because our laws do not allow the commission of a crime, such as defamation,
in the name of official duty.3 The imputation of theft is ultra vires and cannot
be part of official functions. It is well-settled principle of law that a publi
c official may be liable in his personal private capacity for whatever damage he
may have caused by his act done with malice or in bad faith or beyond the scope
of his authority or jurisdiction.4 It appears that even the government s chief le
gal counsel, the Solicitor General, does not support the stand taken by petition
er and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state out
side his official functions.5 As already mentioned above, the commission of a cr
ime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted
, suffice it to say that preliminary investigation is not a matter of right in c
ases cognizable by the MeTC such as the one at bar.6 Being purely a statutory ri
ght, preliminary investigation may be invoked only when specifically granted by
law.7 The rule on criminal procedure is clear that no preliminary investigation
is required in cases
_______________
3 M.H. Wylie v. Rarang, 209 SCRA 357, 368 (1992).
4 Shauf v. CA, 191 SCRA 713 (1990); Ammos v. Phil. Veterans Affairs Office, 174
SCRA 214 (1989); Dumlao v. CA, 114 SCRA 247 (1982).
5 Section 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 (1992).
6 See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 (1997).
7 People v. Abejuela, 38 SCRA 324 (1971).
697
VOL. 323, JANUARY 28, 2000
697
Liang vs. People
falling within the jurisdiction of the MeTC.8 Besides, the absence of preliminar
y investigation does not affect the court s jurisdiction nor does it impair the va
lidity of the information or otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Kapunan and Pardo, JJ., concur.
Petition denied.
Notes. In Public International Law, when a state or international agency wishes to
plead sovereign or diplomatic immunity in a foreign court, it requests the Fore
ign Office of the state where it is sued to convey to the court that said defend
ant is entitled to immunity. In the United States, the procedure followed is the
process of suggestion, where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a determinatio
n as to whether it is entitled to immunity. If the Secretary of State finds that
the defendant is immune from suit, he, in turn, asks the Attorney General to su
bmit to the court a suggestion that the defendant is entitled to immunity. In the
Philippines, the practice is for the foreign government or the international org
anization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Office conveys its endorseme
nt to the courts varies. (Holy See, The vs. Rosario, Jr., 238 SCRA 524 [1994])
It is a recognized principle of international law and under our system of separa
tion of powers that diplomatic immunity is essentially a political question and
courts should refuse to look beyond a determination by the executive branch of t
he
________________
8 Section 1, Rule 112, Rules of Criminal Procedure.
9 People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1 SCRA 478 (1961).
698
698
Liang vs. People
government, and where the plea of diplomatic immunity is recognized and affirmed
by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion
by the principal law officer of the government, the Solicitor General or other o
fficer acting under his direction. (Lasco vs. United Nations Revolving Fund for
Natural Resources Exploration, 241 SCRA 681 [1995])
o0o

PIL Cases Ch10

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

PIL Cases Ch10

Загружено:

Авторское право:

Доступные форматы

G.R. No. 74135. May 28,1992.

M. H. Wylie vs. Rarang

G.R. No. 76607. February 26, 1990.*

ndants, including the US Government, in

7 Annex A, Rollo, p. 33.

United States of America vs. Guinto

[No. 17958. February 27, 1922]

be taken into consideration

No. L-35645. May 22, 1985.*

G.R. No. 101949. December 1, 1994.*

ternational Law, when a state or international agency wishes to plead sovereign

dorsement to the courts varies. In International Catholic Migration Commission v

Holy See, The vs. Rosario, Jr.

G.R. Nos. 97468-70. September 2, 1993.*

ter shall be vested in the Council.

Philippines, to promote research in Aquaculture as so expressed in the Whereas Cla

G.R. No. 171396. May 3, 2006.*

ally bereft of factual basis. A reading of the Solicitor General s Consolidated Co

ning comprehensive control over harmful, constitutionally unprotected conduct

vagueness. This, too, is unwarranted. Related to the overbreadth doctrine is the vo

r shall be vested in the Congress of the Philippines which shall consist of a Se

ognize exceptions, such as in extreme situations wherein obtention of congressio

VOL. 489, MAY 3, 2006

ber 11, 2003, 415 SCRA 590.

n, does so as a representative of the general public. He may be a person who is

e 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the transcendental i

VOL. 489, MAY 3, 2006

ic processes of government in time of emergency. According to him:

The Discourses, Bk. 1, Ch. XXXIV.

of the citizenry interested in the defense of the existing constitutional order

e, insurrection and rebellion are considered harmful and constitutionally unprotect

David vs. Macapagal-Arroyo

118 Section 6, Article XVI of the Constitution.

l administration, which the President desires to bring to the attention of all o

ility or business affected with public interest.

gether and considered in the light of each other.123Considering that Section 17

VOL. 489, MAY 3, 2006

n an landslides. There is also a Joint Resolution of April 1937. It made funds av

e Soviet Union. One could go on and on in enumerating examples of conflicting ca

terrorism. Since there is no law defining acts of terrorism, it is President Arroy

144 Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

of the Memorandum in G.R. No. 171396, pp. 271-273.

h, policemen stationed themselves at the vicinity of the Daily Tribune offices.

151 Petition in G.R. No. 171400, p. 11.

David vs. Macapagal-Arroyo

VOL. 489, MAY 3, 2006

David vs. Macapagal-Arroyo

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

VOL. 489, MAY 3, 2006

David vs. Macapagal-Arroyo

nd insurrection, which compellingly called for the declaration of martial law, n

ut them that can satisfy our judicial conscience.

Many times, the President exercises such prerogative as a responsive measure, as

adopted by the Court should not be so absolute so as to preclude the exercise by

distinct right altogether from free expression.

G.R. No. 142396. February 11, 2003.*

1 Rollo, pp. 39-42.

, the trial court reached a decision; it adjudged:

VOL. 397, FEBRUARY 11, 2003

e criminal investigative expertise and assistance to foreign law enforcement age

9-13 , See Rollo, pp. 156-168.

VOL. 397, FEBRUARY 11, 2003

15 48 SCRA 242 (1972).