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489 SCRA 160 Political Law The Executive Branch Presidential Proclamation

1017 Take Care Clause Take Over Power Calling Out Power

Bill of Rights Freedom of Speech Overbreadth

In February 2006, due to the escape of some Magdalo members and the discovery
of a plan (Oplan Hackle I) to assassinate the president, then president Gloria
Macapagal-Arroyo (GMA) issued Presidential Proclamation 1017 (PP1017) and is to
be implemented by General Order No. 5 (GO 5). The said law was aimed to suppress
lawlessness and the connivance of extremists to bring down the government.

Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same
time revoked all permits issued for rallies and other public organization/meeting.
Notwithstanding the cancellation of their rally permit, Kilusang Mayo Uno (KMU)
head Randolf David proceeded to rally which led to his arrest.

Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by
the CIDG and they seized and confiscated anti-GMA articles and write ups. Later
still, another known anti-GMA news agency (Malaya) was raided and seized. On the
same day, Beltran of Anakpawis, was also arrested. His arrest was however
grounded on a warrant of arrest issued way back in 1985 for his actions against
Marcos. His supporters cannot visit him in jail because of the current imposition of
PP 1017 and GO 5.

In March, GMA issued PP 1021 which declared that the state of national emergency
ceased to exist. David and some opposition Congressmen averred that PP1017 is
unconstitutional for it has no factual basis and it cannot be validly declared by the
president for such power is reposed in Congress. Also such declaration is actually a
declaration of martial law. Olivares-Cacho also averred that the emergency
contemplated in the Constitution are those of natural calamities and that such is an
overbreadth. Petitioners claim that PP 1017 is an overbreadth because it encroaches
upon protected and unprotected rights. The Sol-Gen argued that the issue has
become moot and academic by reason of the lifting of PP 1017 by virtue of the
declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the presidents
calling out power, take care power and take over power.

ISSUE: Whether or not PP 1017 and GO 5 is constitutional.

HELD: PP 1017 and its implementing GO are partly constitutional and partly

The issue cannot be considered as moot and academic by reason of the lifting of the
questioned PP. It is still in fact operative because there are parties still affected due
to the alleged violation of the said PP. Hence, the SC can take cognition of the case
at bar. The SC ruled that PP 1017 is constitutional in part and at the same time
some provisions of which are unconstitutional. The SC ruled in the following way;

Resolution by the SC on the Factual Basis of its declaration

The petitioners were not able to prove that GMA has no factual basis in issuing PP
1017 and GO 5. A reading of the Solicitor Generals Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute
such events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid. Indeed, judging the
seriousness of the incidents, GMA was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.

Resolution by the SC on the Overbreadth Theory

First and foremost, the overbreadth doctrine is an analytical tool developed for
testing on their faces statutes in free speech cases. The 7 consolidated cases at
bar are not primarily freedom of speech cases. Also, a plain reading of PP 1017
shows that it is not primarily directed to speech or even speech-related conduct. It
is actually a call upon the AFP to prevent or suppress all forms of lawless violence.
Moreover, the overbreadth doctrine is not intended for testing the validity of a law

that reflects legitimate state interest in maintaining comprehensive control over

harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence,
insurrection and rebellion are considered harmful and constitutionally unprotected
conduct. Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct. Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not
free speech, which is manifestly subject to state regulation.

Resolution by the SC on the Calling Out Power Doctrine

On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC
considered the Presidents calling-out power as a discretionary power solely vested
in his wisdom, it stressed that this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. The SC ruled that GMA
has validly declared PP 1017 for the Constitution grants the President, as
Commander-in-Chief, a sequence of graduated powers. From the most to the least
benign, these are: the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law. The only criterion for
the exercise of the calling-out power is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion. And such criterion has been met.

Resolution by the SC on the Take Care Doctrine

Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure
that the laws be faithfully executed.) the president declared PP 1017. David et al
averred that PP 1017 however violated Sec 1, Art 6 of the Constitution for it
arrogated legislative power to the President. Such power is vested in Congress.
They assail the clause to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction. The SC
noted that such provision is similar to the power that granted former President
Marcos legislative powers (as provided in PP 1081). The SC ruled that the assailed
PP 1017 is unconstitutional insofar as it grants GMA the authority to promulgate
decrees. Legislative power is peculiarly within the province of the Legislature. Sec
1, Article 6 categorically states that [t]he legislative power shall be vested in the

Congress of the Philippines which shall consist of a Senate and a House of

Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state
of emergency can justify GMA[s exercise of legislative power by issuing decrees.
The president can only take care of the carrying out of laws but cannot create or
enact laws.

Resolution by the SC on the Take Over Power Doctrine

The president cannot validly order the taking over of private corporations or
institutions such as the Daily Tribune without any authority from Congress. On the
other hand, the word emergency contemplated in the constitution is not limited to
natural calamities but rather it also includes rebellion. The SC made a distinction;
the president can declare the state of national emergency but her exercise of
emergency powers does not come automatically after it for such exercise needs
authority from Congress. The authority from Congress must be based on the

(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

(4) The emergency powers must be exercised to carry out a national policy
declared by Congress.

Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration

The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to
it. It is a valid exercise of the calling out power of the president by the president.