REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

JAMAR M. KULAYAN,
TEMOGEN S. TULAWIE,
HJI. MOH. YUSOP ISMI,
JULHAJAN AWADI,
SPO1 SATTAL H. JADJULI,
Petitioners,

- versus - SC G.R. No. ____________

GOV. ABDUSAKUR M. TAN,

in his capacity as Governor of
Sulu; GEN. JUANCHO SABAN,
COL. EUGENIO CLEMEN PN,
P/SUPT. JULASIIM KASIM
and P/SSUPT BEINVENIDO
G. LATAG, in their capacities
as officers of the Philippine
Marines and Philippine National
Police, respectively,
Respondents.
x--------------- -----x

PETITION FOR CERTIORARI AND PROHIBITION

With Urgent Application for the Issuance of a Temporary Restraining Order
(TRO) and/or Writ of Preliminary Injunction

COME NOW, the above-named Petitioners, by counsel, respectfully

state:
I.
NATURE OF THE PETITION

1. This is an original special civil action for certiorari and prohibition

under Rule 65 of the 1997 Rules of Civil Procedure, with an urgent prayer
for the issuance of a temporary restraining order (“TRO”) and/or writ of
preliminary injunction. This petition prays that this Honorable Court issue:

1
 a. A judgment declaring null and void, for being ultra-vires,
unconstitutional and contrary to law, Proclamation No. 1, Series of 2009,
dated 31 March 2009, entitled DECLARING A STATE OF EMERGENCY IN
THE PROVINCE OF SULU.

b) A judgment declaring as null and void, for being ultra-vires,

unconstitutional and contrary to law, the Guidelines on the Implementation
of Proclamation No. 01, Series of 2009 Declaring a State of Emergency in
the Province of Sulu.

(c) A judgment declaring as unconstitutional Section 465, 2 (vi) of

Republic No. 7160 and Section 459 of Muslim Mindanao Autonomy Act No.
25, otherwise known as the Local Government Code of the Autonomous
Region in Muslim Mindanao.

d) A judgment commanding the respondents, their subordinates and

all persons acting on the basis of Proclamation No. 1 and its implementing
Guidelines to cease and desist from implementing the same.

(e) A Temporary Restraining Order and/or Writ of Preliminary

Injunction enjoining the respondents and their subordinates from
implementing the said Proclamation and its implementing Guidelines.

Attachm ents

1.1. A certified true copy of Proclamation No. 1, Series of 2009,

dated 31 March 2009 is attached hereto as Annex “A”, while
photocopies of the same are attached to the other copies of
this Petition.

1.2. A certified true copy of the Guidelines on the

Implementation of Proclamation No.1, Series of 2009 dated
March 31, 2009 is attached as Annex “B”, while the

2
 photocopies thereof are attached to the other copies of this
Petition.
II
Tim eliness of the P etition

2.1. It is respectfully submitted that this petition is filed well within

the 60-day reglamentary period prescribed under Rule 65 of the 1997
Rules of Civil Procedure, as the subject Proclamation was issued and
publicly announced over radio and television on 31 March 2009, while its’
implementing Guidelines, although promulgated and approved later on
April 4, 2009, is also dated March 31, 2009.

III
JURISDICTION AND BASIS OF THE PETITION

3.1. The Petition is filed as there is no remedy of appeal and neither

is there available to petitioners any other plain, speedy and adequate
remedy, administrative or otherwise, in the ordinary course of law.

3.2. This Petition is timely filed to question the validity of the said
Proclamation No. 1 and its’ implementing Guidelines on constitutional and
statutory grounds. This Petition requires urgent resolution as the issues
involved pertain to fundamental freedoms guaranteed under the
Constitution and the very foundations of our democratic system of
government. They also threaten the primacy of the rule of law.

3.3. The principle of exhaustion of administrative remedies does not

apply to this case since the issues involved are purely legal or
constitutional. The principle of hierarchy of courts likewise does not apply
since it generally applies to cases involving factual questions. The instant
case raises constitutional issues of transcendental importance to the public.
The petitioners respectfully submit that the Honorable Court can resolve to

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exercise primary jurisdiction over the instant case to determine whether or
not there was grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.
(Art. VII, Sec. 1) and, whether the local government unit had acted within
the limits of its delegated authority.

3.4. The Petition seeks the issuance of the writ of certiorari,

prohibition and mandamus, on the basis of the following:

IV
PARTIES

4.1. Petitioner Jamar M. Kulayan is of legal age, Filipino, a resident

and registered voter of Barangay Tampakan, Laminusa Island, Siasi, Sulu.
He is also a taxpayer. He may be served with notices and other processes
of this Honorable Court at Unit 1, 2nd Floor, J. Atilano Bld’g., I. Magno
Street, Zamboanga City.

4.2. Petitioner TEMOGEN S. TULAWIE is of legal age, Filipino and a

resident of No. 366, Scott Road, Jolo, Sulu, where he may be served with
summons and other processes of this Honorable Court. He is the Provincial
Chairman of the Consortium of Bangsamoro Civil Societies, a consortium of
human rights organizations in Sulu. He is a taxpayer.

4.3. Petitioner HJI. MOHAMMAD YUSOP ISMI is a Filipino, of legal

age and the president of Southern Mindanao Islamic Institute located at
Serantes Street, Jolo, Sulu, where he resides and where he may be served
with summons and other processes of this Honorable Court. He is a
taxpayer and a holder of a Permit to Carry Firearms Outside of Residence
validly issued by the Chief PNP.

4.4. Petitioner AHAJAN AWADI is also a Filipino, of legal age and

former Punong Barangay of Barangay Sawaki, Municipality of Indanan,

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Sulu, where he is a resident and where he can be served with summons
and other processes of this Honorable Court. He is also a holder of a Permit
to Carry Firearms Outside of Residence issued by the Chief PNP.

4.5. Petitioner SPO1 SATTAL H. JADJULI is a Filipino, of legal age and

resident of Patikul, Sulu. He can be served with summons and other
processes of this Honorable Court at Patikul Police Station, Taglibi,
Patikul,Sulu.

4.6. Petitioners may also be served with notices and other processes
of this Honorable Court through the undersigned counsel at the address
given on paragraph 1 hereof.

4.7. Respondent ABDUSAKUR M. TAN is a public officer, of legal age

and the Provincial Governor of Sulu. He signed, issued and proclaimed
Proclamation No. 1, Series of 2009, Declaring a State of Emergency in the
Province of Sulu and he caused the preparation and he approved the
Guidelines on the Implementation of Proclamation No. 1, Series of 2009.
He can be served with notices and other processes of this Honorable Court
at the Office of the Provincial Governor, Capitol Site, Bangkal, Patikul, Sulu.

4.8. Respondents GEN. JUANCHO SABAN and COL. EUGENIO

CLEMEN are both public officers and of legal ages. Respondent Saban is
the Chief of Task Force COMET, while respondent Clemen is the Brigade
Commander of the Third Marine Brigade and Deputy Chief of Task Force
COMET. They are impleaded in their official capacity and can be served
with summons and other processes of this Honorable Court at Camp Gen.
Bautista, Kasulutan, Jolo, Sulu.

4.9. Respondent PSUPT JULASIRIM KASIM is also a Filipino, of legal

age and is impleaded in his official capacity as Police Director of the
Philippine National Police in the Province of Sulu and is the officer charged

5
with the enforcement of the said Proclamation. He can be served with
summons and other processes at Camp Asturias, PC Compound, Jolo, Sulu.

4.10. Respondent PSSUPT BIENVENIDO G. LATAG is also a Filipino,

of legal age and is impleaded in his official capacity as the Deputy Director
for Operations of Philippine National Police-Autonomous Region in Muslim
Mindanao and the Commander of the PNP Component of Task Force ICRC.
He can be served with summons and other processes at Peacekeepers INN
at PC Compound, Jolo, Sulu or at Camp. Saripada Pendatun, Parang,
Maguindanao. He recommended the approval of the herein assailed
implementing Guidelines of Proclamation No.1, Series of 2009.

V
STATEMENT OF FACTS

5.1. Last January 15, 2009, three (3) ICRC workers were kidnapped
in the vicinity of the Provincial Capitol of the Province of Sulu. The
kidnappers were said to have been lead by Raden Abu, a former jail guard
of the Province. Later, news reports linked Raden Abu to Albader Parad,
one of the alleged leaders of the Abu Sayyaf.

5.2. The Philippine Marines later declared that they had already
cordoned off the kidnappers inside a Four (4) Kilometer radius area in the
jungle of Indanan and their mobility effectively restricted.

5.3. On January 21, 2009, the Philippine National Police announced

that it had just created Task Force ICRC that will explore the possibility of
rescuing the three Red Cross workers. A parallel task force dubbed as Local
Crisis Committee was also created and headed by respondent Governor
Tan. This was later renamed as Sulu Crisis Management Committee. The
Task Force ICRC is headed by respondent Tan. The armed forces
component is headed by Gen. Juancho Saban and his deputy, respondent

6
Gen. Clemen. The PNP component is headed by the Police Deputy Director
for Operations-ARMM, respondent PSSUPT Latag.

5.4. Thereafter, respondent Provincial Governor organized, created,

and deployed armed men coming from certain municipalities identified to
be politically allied to him as Civilian Emergency Force which he funded
from the public funds of the provincial government.

5.5. Meanwhile, the Abu Sayyaf demanded for the military pull-out of
the Armed Forces from Sulu or they will execute one of the hostages. A
deadline was set on 2:00 in the afternoon of March 31, 2009. The following
day, one of the kidnapped victims, Mary Jane Lacaba was release.

5.6. Just after the deadline, and on March 31, 2009, citing the said
incident of kidnapping, the definition of terrorism under the Human
Securities Act and invoking Section 465 of the Local Government Code, the
respondent Provincial Governor, on his own and without authority from the
Sangguniang Panlalawigan, issued Proclamation No. 1, Series of 2009,
“Declaring a State of Emergency in the Province of Sulu”, which is hereby
quoted in full as follows:

“PROCLAMATION NO. 01, Series 2009

Declaring a State of Emergency in the Province of Sulu

WHEREAS, the Abu Sayyaf bandits led by Commander Albader

Parad have kidnapped three (3) ICRC workers in Sulu last January 15,
2009;

WHEREAS, this is a terroristic act which is a heinous crime that

deserves to be punished to the fullest extent of the law;

WHEREAS, under the provisions of the Human Security Act (RA

9372), terrorism is defined as an act whereby any person who commits
Kidnapping and Serious Illegal Detention, among others, to sow and
create a condition of widespread and extraordinary fear and panic
among the populace and coerce the government to give to an unlawful
demand;
WHEREAS, this dastardly act as well as other kidnapping cases
perpetrated by the group, if not properly addresses, may inspire and

7
 embolden other lawless elements in the province to commit similar acts
of terrorism;

WHEREAS, under Section 465 of the Local Government Code of

1991 (RA 7160), the Chief Executive of the province may carry out such
emergency measures as may bee necessary during and in the aftermath
of man-made and natural disaster and calamities;

WHEREAS, under the same section, the Provincial Governor may

call upon the appropriate national law enforcement agencies to suppress
disorder, riot, lawless violence, rebellion or sedition or to apprehend
violators of the law when public interest so requires and the police
forces of the component city or municipality where the disorder or
violation is happening are inadequate to cope with the situation or the
violators; and

WHEREAS, as an offshoot of the kidnapping, a joint Task Force

was formed wherein the incumbent Governor of Sulu as Chairman of the
Provincial Crisis Management Committee, may order the deployment of
military and police personnel;

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED

IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF
THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF
THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN
EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such

Guidelines as may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in

the pursuit of the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be

necessary to ensure public safety.”

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

ST
31 DAY OF MARCH 2009.

Sgd: Abdusakur M. Tan

Governor

5.7. Because of the said Proclamation, warrantless arrests were

made, among them are as follows:

5.7.1. On April 1, 2009 at about 3:00 o’clock in the afternoon,

petitioner SPO1 Sattal Jadjuli received a phone call from his immediate

8
superior officer, SPO1 Julkiram Badang, telling him to immediately
report to respondent Kasim. When he arrived at the headquarter, he
was told to proceed to the conference room where he was book and
asked about his relationship to Musin, Jaiton and Julamin, who are all
related to him but who are now all dead. After admitting their
relationship, he was immediately detain.

5.7.2. On April 2, 2009, at about 12:00 o’clock noon time, a group of

about Twelve (12) members of the Philippine Marines, under the
command of respondent Saban and Clemen went to Serantes Street,
at Jolo, Sulu. The marines almost arrested Hji. Hadjirul Bam bra and
his son, Abdugajir Hadjirul, had the civilians failed to assist them
prompting the marines to fire their weapons into the air. However, the
father and son were later arrested by the Philippine National Police
under the command of respondent Kasim and were ordered detain by
respondents Latag.

5.7.3. On the same day at about 4:00 o’clock in the afternoon,

Julhajan Awadi, former Punong Barangay of Sawaki, Municipality of
Indanan, Sulu, was told by PINSP BAGADI, his cousin, that he was
being invited by respondents Kasim and Tan. Mr. Awadi was at that
time supervising the road construction project of the USAID in his
Barangay. Once in Jolo, he was told to see respondent Latag, who
later directed him to the Police Headquarter, where petitioner Awadi
was book, asked some personal questions and detained. Later, he was
transferred together with the other detainees to the Provincial Jail.

5.7.4. On the same day, PO2 Marcial Ahajan, brother of the Acting
Mayor of Indanan, was also invited by respondent Kasim to their
headquarters. He was later on asked to see respondent Latag, who
instructed him to proceed to the conference room of the PC
Headquarters where he met the others already under detention. He
was book and later on transferred to the Provincial Jail.

5.7.5. Also on April 2, 2009, SPO3 Muhilmi Ismula, who was assigned
at the Intelligence Division of the Sulu Police Provincial Office was told
by respondent Latag to proceed to the Headquarters, where he was

9
 guided to the Conference Room. There he saw the petitioners and he
was book just like the others; brought to the Provincial Jail.

5.7.6. Also on April 2, 2009, Alano Mohammad, Punong Barangay of

Kannaway, Parang, Sulu, was at his residence in Barangay Kannaway
when two marines and two civilian volunteers came to him. The
following day, he was told that respondent Kasim desired to see him in
Jolo. When he arrived in Jolo, he was asked to see respondent Latag
who then directed him to the Headquarters where he was book and
asked of his relationship to Raden Abu, who happens to be his son-in-
law. He was later on transferred to the Provincial Jail.

5.7.7. Also on April 2, 2009, Public Utility Jeep driver ABDUHADI

SABDANI was onboard his vehicle waiting for his passenger along
Asturias Street, Jolo, Sulu, when he arrested by the marines and
brought to Camp Gen. Bautista. While in the custody of the Marines
inside their camp, he was repeatedly asked to admit he was Isnilun.

5.7.8. All of them were transferred Regional Office of the CIDG in

Zamboanga City. Petitioners Jadjuli and Awadi were transfered to
Zamboanga City Central Police Station together and were release only
on April 6, 2009.

5.8. Prior to their release, the Secretary of Justice in an interview on

national television opined that the declaration of state of emergency by the
governor was unconstitutional since only the President can make that
declaration.

5.9. In just two (2) days after the Proclamation, more than forty (40)
people were reportedly arrested. Checkpoints manned either by the
Philippine National Police, the Philippine Marines, the Civilian Emergency
Forces or a composite thereof, were established and unreasonable
searches and seizures were made. A curfew has already been put in place
in the entire Province of Sulu hindering their movement and livelihood.

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 5.10. These prejudiced herein petitioners Julhajan Awadi and Jadjuli,
who were all arrested on the basis of the said declaration of emergency.
The constitutional, civil and political rights of the people of Sulu have been
arbitrarily curtailed and continue to be in peril.

5.11. The money and resources utilized for the mobilization of these
armed men, particularly those belonging to the Civilian Emergency Force,
could be the public funds of the provincial government or that of the
component municipalities, the disbursement of which are hereby questined
by the petitioners, as taxpayers.

5.12. During the visit of petitioner Kulayan to the CIDG office, he was
told that more people are due for arrest. This was separately confirmed by
respondent Tan during the visit of the relative of SPO1 Jadjuli, who tried to
ask for his help.

5.13. On April 4, 2009, the office of the respondent Provincial

Governor distributed to civic organizations copies of the Guidelines for the
Implementation of the Proclamation No.1, Series of 2009 Declaring a State
of Emergency in the Province of Sulu, which aside from declaring the
admissibility of evidence acquired during illegal searches and seizures also
suspends all issued Permit to Carry Firearms Outside of Residence except
those to be issued by the respondent governor by way of an identification
card.

5.14. The herein assailed Proclamation is ultra-vires, unconstitutional

and contrary to law. The same can be said of its implementing Guidelines.
Unless respondent are restrained and both the Proclamation and the
Guidelines declared null and void, petitioners and the people of Sulu will
continue to suffer the curtailment of their Constitutionally guaranteed
liberties.

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 5.15. Unless the assailed fiats of respondent Tan are nullified by this
Honorable Court, other governors may duplicate or imitate the respondent
putting the entire republic under the mercy of the local chief executives
and a state of emergency in place without the President having declared it.

5.18. HENCE, THIS PETITION.

VI
GROUNDS FOR GRANTING THE PETITION

PROCLAMATION NO. 1, SERIES OF 2009 AND ITS IMPLEMENTING

GUIDELINES ARE NULL AND VOID FOR BEING ULTRA-VIRES AND
UNCONSTITUTIONAL AS THEY VIOLATE THE FOLLOWING
PROVISIONS OF THE 1987 CONSTITUTION:

SECTION 1, ARTICLE VII OF THE CONSTITUTION,

WHICH DECLARES THAT THE PRESIDENT IS THE
CHIEF EXECUTIVE

SECTION 18, ARTICLE VII OF THE CONSTITUTION,

MAKING THE PRESIDENT THE COMMANDER-IN-
CHIEF OF THE ARMED FORCES AND AUTHORIZING
HIM, WHENEVER NECESSARY, TO CALL UPON THE
ARMED FORCES TO SUPPRESS LAWLESS VIOLENCE,
REBELLION AND SEDITION

SECTION 1, ARTICLE III OF THE CONSTITUTION

THAT GUARANTEES “DUE PROCESS” AND “EQUAL
PROECTION”

SECTION 2, ARTICLE III OF THE CONSTITUTION

WHICH GUARANTEES THE RIGHT OF THE PEOPLE TO
BE SECURE IN THEIR PERSONS, HOUSES, PAPERS
AND EFFECTS AGAINST UNREASONABLE SEARCHES
AND SEIZURES.

SECTION 3, ARTICLE III OF THE BILL OF RIGHTS

DECLARING AS INADMISSIBLE ANY EVIDENCE
ILLEGALLY OBTAINED

SECTION 6, ARTICLE III OF THE CONSTITUTION

WHICH GUARANTEES THE LIBERTY OF ABODE AND

12
 OF CHANGING THE SAME, INCLUDING THE FREEDOM
OF LOCOMOTION

PROCLAMATION NO. 1, SERIES OF 2009 AND ITS IMPLEMENTING

GUIDELINES ARE INVALID AS THEY VIOLATE THE FOLLOWING
STATUTORY PROVISIONS, NAMELY:

SECTION 4, CHAPTER 2, BOOK III OF THE REVISED

ADMINISTRATIVE CODE EMPOWERING THE
PRESIDENT TO ISSUE PROCLAMATIONS

REPUBLIC ACT 6975, AUTHORIZING THE CHIEF PNP

TO ISSUE FIREARM’S LICENSE AND PERMIT TO
CARRY FIREARMS OUTSIDE OF RESIDENCE

PD 1866, AS AMENDED BY REPUBLIC ACT NO. 8294,

EXEMPTING FROM CRIMINAL LIABILITY FOR
ILLEGAL POSSESSION OF FIREARMS THOSE
PERSONS WITH PERMIT TO CARRY FIREARMS
OUTSIDE OF RESIDENCE
SECTION 98 OF REPUBLIC ACT NO. 7160 OTHERWISE
KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991
OR SECTION 439 OF THE MUSLIM MINDANAO
AUTONOMY ACT NO. 25, OTHERWISE KNOWN AS THE
LOCAL GOVERNMENT CODE OF THE ARMM

SECTION 465 OF REPUBLIC ACT NO. 7160, OR

SECTION 43 OF MUSLIM MINDANAO AUTONOMY ACT
NO. 25

SECTION 465 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN

AS THE LOCAL GOVERNMENT CODE, IS UNCONSTITUTIONAL FOR
BEING AN UNLAWFUL DELEGATION BY CONGRESS TO THE LOCAL
GOVERNMENT UNIT OF A SOLELY EXECUTIVE POWER; AND,

IN ISSUING THE ASSAILED PROCLAMATION AND IT’S

IMPLEMENTING GUIDELINES, THE RESPONDENT GOVERNOR OF
SULU AND THOSE ACTING UNDER THE AUTHORITY OF THE SAID
PROCLAMATION AND ITS GUIDELINE, ACTED WITHOUT
AUTHORITY AND/OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
TRANSGRESSING CLEAR CONSTITUTIONAL GUARANTEES AND
PARAMETERS OF GOVERNMENTAL POWERS.

VIII
ISSUES

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 THE MAIN ISSUE IN THIS PETITION IS
WHETHER OR NOT A PROVINCIAL GOVERNOR CAN
PLACE HIS PROVINCE UNDER A STATE OF
EMERGENCY.

SECOND ISSUE: CAN A PROVINCIAL

GOVERNOR ISSUE A PROCLAMATION?

THIRD ISSUE: CAN THE GOVERNOR CALL-OUT

THE ARMED FORCES INCLUDING THE CIVILIAN
EMERGENCY FORCES AND ORDER THEM TO
CONDUCT POLICE ACTIONS OR OPERATIONS.

FOURTH ISSUE: WHETHER OR NOT THE

GOVERNOR CAN ORDER THE SETTING-UP OF
CHECKPOINTS AND CHOKEPOINTS; IMPOSITION
OF A CURFEW; CONDUCT GENERAL SEARCH,
SEIZURE AND ARREST.

FIFTH ISSUE: CAN THE PROVINCIAL

GOVERNOR, THE MARINE COMMANDER AND THE
DEPUTY DIRECTOR FOR OPERATIONS OF THE
PNP-ARMM SUSPEND PERMIT TO CARRY
FIREARMS OUTSIDE OF RESIDENCE?

SIXTH ISSUE: CAN THE PROVINCIAL

GOVERNOR THE MARINE COMMANDER AND THE
DEPUTY DIRECTOR FOR OPERATIONS OF PNP-
ARMM GRANT AUTHORITY TO CARRY PERMIT TO
CARRY FIREARMS OUTSIDE OF RESIDENCE IN THE
PROVINCE OF SULU

SEVENTH ISSUE: IS PROCLAMATION NO. 1

AND IT’S IMPLEMENTING GUIDELINES VALID
DESPITE LACK OF PUBLICATION IN A NEWSPAPER
OF GENERAL CIRCULATION AS REQUIRED BY
LAW.

IX.
DISCUSSION

To paraphrase Chief Justice Artemio Panganiban in his concurring

opinion in David vs. Arroyo 1: Proclamation No.1 Series of 2009 and its

1
G.R. No. 171396, May 3, 2006

14
implementing Guideline “may be paper tigers, but xxx they have nuclear
teeth that must indeed be defanged.”

Before the discussion of the constitutional issues, it is important to

establish the petitioner’s legal personality to impugn the validity of
Proclamation No. 1 and its implementing Guideline; and, the propriety of
this Petition.

A. PETITIONERS HAVE THE REQUISITE STANDING TO

INSTITUTE THE PRESENT ACTION.

P etitioners have sustained direct

injury as a consequence of the
herein assailed P roclam ation No. 1
and it’s im plem enting Guidelines.
They have personal and substantial
interest in the outcom e of the case
as tax payers and residents of the
P rovince of Sulu. They are
enforcing a constitutional right and
this is a case of “transcendental
im portance.”

The Rules of Civil Procedure requires that a case is instituted by a

real party in interest, which is defined as “the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.” In a public suit seeking the nullification of an illegal
official action, the plaintiff must “make out a sufficient interest in the
vindication of the public order and the securing of relief as a “citizen” or
“taxpayer”.

Subsequently, however, the more stringent “direct injury test” was

adopted. According to this test, “for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of the
action, and it is not sufficient that he has a general interest common to all

15
members of the public.” This test was adopted in People vs. Vera 2, where
the Court held that “the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has
sustained, or will sustained a direct injury as a result of that action, and it
is not sufficient that he has a general interest common to all members of
the public.”

This case passes the direct injury test. P etitioners Aw adi and
SP O1 Jadjuli sustained direct injury , when they were both arrested
upon the invitation of respondent Kasim and detained upon the orders of
respondent Latag. They were illegally arrested and detained beyond the
allowable period without charges, on the strength of the assailed
Proclamation No.1 and its implementing Guidelines and their immediate
and drastic implementations by the respondents.

Petitioners Kulayan, Tulawie and Ismi have personal interest in

the case such that they w ill sustain direct injury as a result of the
assailed Proclamation No.1 and its’ implementing Guidelines. The CIDG
investigator revealed the existence of a list of names of persons to be
arrested, which statement or facts was confirmed by the respondent
governor in a separate meeting with some relatives of petitioner Jadjuli.
Petitioners or any people of Sulu may be any of the Dick and Harry on such
list or suspected Abu Sayyaf. The organization of the Civilian Emergency
Forces, their deployment and provisions by respondent Tan are hereby
question as it involves the illegal disbursement of public funds, which is of
genuine interest to the petitioners, w ho are all tax payers .

Petitioner Awadi and Ismi are holders of Permit to Carry Firearms

Outside of Residence (PTCFOR) validly issued by the Chief of the Philippine
National Police in accordance with law. This right is being suspended by

2
G. R. No. 45685, November 16, 1937

16
the respondents and its mere possession made sufficient for arrest,
seizure, confiscation and prosecution.

Moreover, the instant suit is a m atter of transcendental

im portance to the people of Sulu and the public. The rule on standing has
been repeatedly relaxed in cases involving matter of transcendental
importance. In the early Emergency Power Cases, this Honorable Court
allowed suits where serious constitutional issues are involved,
notwithstanding the absence of direct interest. The Court held:

“Nevertheless, where a most compelling reason exists,

such as when the matter is of transcendental importance and
paramount interest to the nation, the Court must take the
liberal approach that recognizes the legal standing of non
traditional plaintiffs, such as citizens and taxpayers, to raise
constitutional issues that affect them. This Court thus did so in
a case that involves the conservation of our forests for
ecological needs. Until an exact balance is struck, the Court
must accept an eclectic notion that can free itself from the
bondage of legal nicety and hold trenchant technicalities
subordinate to what may be considered to be of overriding
concern.”

The right of the taxpayer and a citizen to initiate suits before this
Court was affirmed in Chavez vs. PEA-Amari3, where this Court this
Honorable Court categorically stated:

“The petitioner has standing to bring this

taxpayer's suit because the petition seeks to com pel
P EA to com ply w ith its constitutional duties. There are
tw o constitutional issues involved here. First is the right
of citizens to inform ation on m atters of public concern.
x x x M oreover, the petition raises m atters of
transcendental im portance to the public. In Chavez v.
PCGG, the Court upheld the right of a citizen to bring a
taxpayer's suit on matters of transcendental importance to the
public, thus —"Besides, petitioner emphasizes, the matter of
recovering the ill-gotten wealth of the Marcoses is an issue of

3
G. R. No. 133250, July 9, 2002

17
 'transcendental importance to the public.' He asserts that
ordinary taxpayers have a right to initiate and prosecute actions
questioning the validity of acts or orders of government
agencies or instrumentalities, if the issues raised are of
'paramount public interest,' and if they 'immediately affect the
social, economic and moral well being of the people.'

M oreover, the m ere fact that he is a citizen

satisfies the requirem ent of personal interest, w hen the
proceeding involves the assertion of a public right, such
as in this case. He invokes several decisions of this Court
which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest. xxx xxx
xxx”

Paraphrasing this Honorable Court in David vs. Arroyo:”It must

always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the “liberality doctrine” on legal standing. 4 It
cannot be doubted that the validity of the governor’s declaration on state
of emergency in the entire province of Sulu “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 critical matter. The petition thus calls for the
application of the “transcendental importance” doctrine, a relaxation of the
standing requirements for the petitioners in this case.

Considering the importance to the public interest of the case at bar,

and in keeping with the Court’s duty under the Constitution to determine
whether or not the other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court must take cognizance of
this case and rule upon the arguments put forward in this petition.
Otherwise, there is no prevention for the other governors similarly minded
as the respondent who might as well declare a state of emergency in their

4
David vs. Arroyo,

18
own province that will eventually result in chaos and into a constitutional
crisis, that of a presidential sole executive prerogative being usurped by a
local chief executive of a local government unit and majority of the
provinces in the country will be under states of emergency without the
President declaring it.

THE PETITION POSES AN ACTUAL CONTROVERSY

Among the requirements for the exercise of judicial review is that

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

In Angara vs. Electoral Commission5, the Court ruled that when the
actions of one branch of the government conflicts with that of another,
there is an actual case that is ripe for judicial review.

When the judiciary mediates to allocate constitutional boundaries, it

does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
“judicial supremacy” which properly is the power of judicial review under
the Constitution.

The present and actual controversy in this case is constitutional in

nature as it involves the powers of the Executive Department, the Congress
and the Local Government Unit, more particularly the governor of Sulu.

5
G. R. No. L-45081, July 15, 1936

19
The consequent ill effects of the illegal action of the respondent governor
upon the people of Sulu are unimaginable. Thus, unless this Court
immediately exercises its supreme duty of ensuring that the local
government units are acting within their limits of power, the petitioners
and the entire people of Sulu will continue to suffer injury. And the action
herein question maybe repeated by the other provincial governors.

It is true that the power of the courts to declare a law

unconstitutional arises only when the interests of litigants require the use
of that judicial authority for their protection against actual interference, a
hypothetical threat being insufficient. Proclamation No. 1 has already been
implemented resulting in the unlawful arrest of petitioners Awadi and
Jadjuli and several others. Thus, there is no longer a hypothetical threat
against the constitutional rights of the petitioners. An injury had already
been sustained.

The validity of a declaration of emergency by a legislative body of a

local government unit was brought before this Court in Homeowners
Association of the Philippines, Inc. vs. The Municipal Board of the City of
Manila6. But the Court deemed it not proper to pass on this question and
decided the case on other questions. Had there been a resolution of such
issue, perhaps there would have been no need for this petition for the
respondent may have been already well inform of the maximum limits of
his power. That case has been repeated, this time by a local chief
executive.

Thus, unless this issue is resolve now, it is very likely that the issue
will resurface and history will repeat itself. This brought the instant case
within the purview of the exemption to the rule on mootness: “the case is
capable of repetition yet evading review .”

6
G.R. No. L-23979, August 30, 1968

20
 PETITIONER MAY SEEK RECOURSE DIRECTLY WITH
THIS HONORABLE COURT

It is not denied that the Supreme Court is a court of last resort.

However, cases involving compelling issues and those which are of
paramount interest and importance may be directly filed with this
Honorable Court. Thus, in Kilosbayan vs. Guingona7, this Honorable Court
brushed aside the hierarchy of courts due to the importance of the issues
therein “to determine whether or not the branches have kept themselves
within the limits of the Constitution and the laws and that they have not
abused the discretion given to them”.

In Chavez vs. PEA-Amari 8, this Honorable Court had occasion to

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

Moreover, in Santiago vs. Vasquez 9, this Honorable Court ruled that

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

7
232 SCRA 110
8
Supra
9
217 SCRA 633

21
 As earlier alleged, petitioners are raising the constitutionality and
validity of Proclamation No. 1 and it’s implementing Guidelines. That issue
affects public interest, involving as they are the right of the people of Sulu
against unreasonable search and seizure, their liberty of abode and their
right to life, liberty and property. While these affect the people of Sulu
only, there is no guarantee that other similarly opined local chief executives
will not follow. It is for this reason that this Honorable Court must now
entertain this case, in order to teach the others. Paraphrasing this
Honorable Court’s declaration in David vs. Arroyo: “Moreover, the Court
has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and
the Bar, and in the present petitions, the military, the police and the local
chief executives of the different local government units across the country,
[supplied] on the extent of the protection given by constitutional
guarantees. And, lastly, respondent’s contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.”10

Additionally, there is only one presiding judge over the three regional
courts in Sulu and he also presides over the Shariah District Court. The
political climate in Sulu as well as the storm brought about by the herein
questioned actions makes the filing of this petition before that court
impractical and would be a useless exercise, subject to delay.

Having said that, we shall now proceed to discuss the issues at bar:

PROCLAMATION NO. 1, SERIES OF 2009

AND ITS IMPLEMENTING GUIDELINES ARE
UNCONSTITUTIONAL AND CONTRARY TO
LAW, DUE TO THE FOLLOWING:

1. THEY VI OLATE SECTI ONS 1 AND 18 OF

ARTI CLE VI I OF THE CONSTI TUTI ON,
VESTI NG THE PRESI DENT W I TH EXECUTI VE
P OW ER AND COM M ANDER-I N-CHI EF P OW ER
10
Supra

22
 Section 1, Article VII of the 1987 Constitution provides:

Section 1. The ex ecutive pow er shall be vested in the

P resident of the P hilippines.

First paragraph of Section 18 thereof provides:

Section 18. The P resident shall be the Com m ander-in-Chief

of all arm ed forces of the P hilippines and w henever it becom es
necessary, he m ay call out such arm ed forces to prevent or
suppress law less violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus
or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it. [emphasis supplied]

In Sanlakas vs. Executive Secretary 11, the Court held: “[Thus], the
P resident’s authority to declare a state of rebellion springs in the
main from her pow ers as chief ex ecutive and, at the same time draws
strength from her com m ander-in-chief pow ers. Indeed, as the Solicitor
general accurately points out, statutory authority for such declaration may
be found in Section 4, Chapter 2, Book III of the Revised Administrative
Code of 1987, xxx.” It proceeds by saying that “in declaring a state of
rebellion and in calling out the armed forces, the President, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief
Powers. These are purely executive powers, vested on the President by
Sections 1 and 18, Article VII, as opposed to the delegated legislative
powers contemplated by Section 23 (2), Article VI.”

11
G.R. No. 159085, February 3, 2004

23
 The declaration of a state of emergency by the respondent governor
exceeded the proclamations of the President that were challenged in
Lacson vs. Perez 12, Sanlakas vs. Executive Secretary and the latest case of
David vs. Arroyo.

On its face, the proclamation of state of emergency in the entire

Province of Sulu by respondent governor is ultra-vires, because there is no
law that grants him the authority or power to make such a declaration.
Neither the Human Security Act (RA 9372) nor the Local Government Code
of 1991 (RA 7160) grants the provincial governor the authority to declare a
state of emergency. On the contrary, the power to declare a state of
emergency or a state of rebellion is exclusively with the president as the
chief executive and as the commander-in-chief.

Respondent governor, although a local chief executive is not the

Chief Executive mentioned in Section 1 of Article VII and neither is he the
Commander-in-Chief referred to in Section 18 thereof. The respondent
governor arrogated unto himself and usurped the exclusive power of the
chief executive. This is a culpable violation of the Constitution.

2. ONLY THE PRESI DENT CAN CALL UP ON

THE ARM ED FORCES TO SUP PRESS LAW LESS
VI OLENCE, REBELLI ON OR SEDI TI ON

As held in Sanlakas, the calling out power is executive power granted

the President, as Commander-in-Chief by Section 18, Article VII of the
Constitution. This Court, in that case, held:

“The above provision grants the President, as

Commander-in-Chief, a “sequence” of “graduated power[s].”
From the most to the least benign, these are: the calling out
power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law. In the exercise of

12
357 SCRA 756

24
 the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or
rebellion, and that public safety requires the exercise of such
power. However, as we observed in Integrated Bar of the
Philippines vs. Zamora, “[t]hese conditions are not required in
the exercise of the calling out power. The only criterion is that
“whenever it becomes necessary,” the President may call the
armed forces ‘to prevent or suppress lawless violence, invasion
or rebellion.”13

Premises considered, it is respectfully submitted that the

Proclamation No. 1 and its implementing Guidelines are unconstitutional,
since it encroached upon clearly exclusive powers of the President to
declare a state of emergency and to call out the armed forces.

An encroachment is merely an oversimplification of the

unconstitutionality of the action of the respondent because the truth is, it
even exceeded the authority granted the President under Section 18
because the respondent governor called out the armed forces and made
them parallel and on equal footing with his own army of Civilian Emergency
Forces to set-up checkpoints, impose curfew, conduct search, seizure and
arrest, and, conduct other actions or police operations. Respondent had
called on the armed forces to perform a civilian function of government,
which is law enforcement – a task clearly beyond suppressing or
preventing lawless violence, insurrection or rebellion.

3. I T I S THE PRESI DENT ALONE W HO HAS

THE AUTHORI TY TO I SSUE A PROCLAM ATI ON

Furthermore, in sustaining the declaration of a state of rebellion by

the President, this Court in Sanlakas vs. Executive Secretary, finds support
in the provision of the Administrative Code. It said:

“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 her Commander-in-Chief

13
Supra

25
 Powers. Indeed, as the Solicitor General accurately points out,
statutory authority for such a declaration m ay be found
in Section 4, Chapter 2 (Ordinance P ow er), Book I I I
(Office of the President) of the Revised Adm inistrative
Code of 1987, w hich states:

Sec. 4. Proclamations. – Acts of the President

fixing a date or declaring a status or condition of
public moment or interest, upon the existence of
which the operation of a specific law or regulation is
made to depend, shall be promulgated in
proclamations which shall have the force of an
executive order. [Underline supplied]

Under the foregoing provision of law, only the President can issue a
proclamation declaring a status or condition of public moment or interest.
The legislative authority of the provincial governor is limited only to the
issuance of “executive orders for the faithful and appropriate enforcement
and execution of laws and ordinances” 14.

4. THE DECLARATI ON OF THE RESP ONDENT

GOVERNOR IS AN I NVALI D AND
UNJUSTI FI ED EXERCI SE OF P OLI CE P OW ER

Neither can the challenged acts be justified under the exercise of

police power which is lodged primarily in the national legislature. By virtue
of a valid delegation of legislative power, it may also be exercised by the
President and administrative boards as well as the lawmaking bodies on all
municipal levels15. In the provinces, it is the Sangguniang Panlalawigan
that is vested with police powers and not the provincial governor. Thus,
only the actions of the Sangguniang Panlalawigan may be defended on the
ground of a valid exercise of police power.

But even the invocation of police power by the legislature in cases of

emergency is not without limitations. In Homeowners Association of the

14
Section 465, 2 (iii), R. A. 7160
15
Cruz, Constitutional Law, P. 46, 2003 Edition

26
Philippines vs. The Municipal Board of the City of Manila 16, the Court had
the opportunity to discuss the nature of police power in times of
emergency. It ruled:

“xxx. The police power measure must be “reasonable”. In other

words, individual rights may be adversely affected by the exercise of
police power to the extent only, and only to the extent, that may fairly be
required by the legitimate demands of public interest or public welfare. If
such demands are brought about by a state of emergency, the
interference upon individual rights, resulting from the regulations adopted
to meet the situation, must be, by and large, co-extensive, co-equal or co-
terminus with the existence thereof. And, since an emergency is by nature
temporary in character, so must the regulations promulgated therefore
be. In the language of Justice Holmes, “circumstances may so change in
time or differ in space as to clothe with such an interest what at other
times or in other places would be a matter of purely public concern.” Or,
as the American Jurisprudence puts it, “a limit in time to tide over passing
trouble may justify a law that could not be upheld as a permanent
change.”

As a consequence a law or ordinance affecting the rights of

individuals, as a means to tide over a critical condition, to be
valid and legal, must be for a “definite” period of time, the length
of which must be “reasonable”, in relation to the nature and
duration of the crisis it seeks to overcome or surmount. xxx. xxx.
xxx.

The practical reason for the requirement that statute passed to

meet a given emergency, should limit the period of its effectivity, is that,
otherwise, a new and different law would be necessary to repeal it, and
said period would, accordingly, be “unlimited, indefinite, negative and
uncertain”, so “that which was intended to meet a temporary emergency
may become a permanent law”, because “Congress might not enact or
repeal, and, even if it would, the repeal might not meet the approval of
the President, and the Congress might not be able to override the veto”.
In line with the basic philosophy underlying the authority to affect
individual rights, this Court felt that Commonwealth Act No. 671,
otherwise known as the Emergency Powers Act, was meant to be and
“become inoperative when Congress met in regular session on May 25,
1946,” and that Executive Orders Nos. 62, 192, 225 and 226 promulgated
subsequently thereto, were issued without authority of law”, because,
otherwise, said emergency regulations would purport to be in force for an
indefinite and unlimited period of time, and, hence, would be
unconstitutional.”

The same considerations impelled the Court to invalidate Executive

Order Nos. 545 and 546, issued on November 10, 1952. Indeed,
otherwise “the result would be obvious unconstitutionality”, by making
permanent a law intended to afford a relief for a temporary emergency,

16
G.R. No. L-23979, August 30, 1968

27
 the length of which should be “fixed in the law itself and not dependent
upon the arbitrary or elastic will of either Congress or the President.”

Thus, official actions taken in times of emergency under the police

power of the legislature must be impermanent, co-extensive, co-equal or
co-terminus with the existence thereof and that regulations promulgated
pursuant thereto must similarly be temporary. Thus, the assailed
Declaration of a State of Emergency is invalid because the duration which it
is effective is not fixed in the law itself and is made dependent upon the
arbitrary or elastic will of the respondents.

Finally, the powers of local government unit are not absolute. They
are subject to limitations laid down by the Constitution and the laws. And,
that the local government unit should refrain from acting towards that
which prejudice or adversely affect the general welfare.17 Certainly,
Proclamation No. 1 and its Guideline prejudice and adversely affect the
people’s welfare and right to security and safety. It may have the noblest
of intent, but the means employed to accomplish the desired objective is
not reasonable; it is arbitrary.

6. THE GOVERNOR CANNOT ORDER A

GENERAL SEARCH, SEIZURE AND ARREST. HE
ALSO CANNOT ORDER THE SETTING-UP OF
CHECK POINTS.

The first order of the assailed Proclamation is the “setting-up of

check-points and chokepoints in the province.” It provides:

“1. The setting-up of checkpoints and chokepoints in the

province.

3. The conduct of General Search and Seizure including

arrests in the pursuit of the kidnappers and their supporters;”

The assailed Guideline provides:

17
Makasiano vs. Diokno, 212 SCRA 464

28
 “Section 2 - Checkpoints shall be established in locations to be
determined by the appropriate PNP/AFP authorities and for a 24/7
duration and of such composition and number as the said official deems
necessary. There shall be at least one female member of the group.

Section 3 – Visits, Boards, Searches, and Seizure shall be

conducted in the vessels in the waters surrounding the province in
accordance with the SOP observed by the Philippine Navy;

3.1. The Team of Officers and Enlisted Personnel of

the apprehending vessel must be in complete and
presentable uniform; Utmost courtesy must be accorded to
the crew and passengers of the suspected vessel being
inspected paying particular attention to the safety and
comfort of the elderly, women and children passengers;

3.2. Members of the Boarding Team shall ensure that

their firearms are secured. Guns aboard the apprehending
vessel must be ready to fire if and when needed.

3.3. If after inspection all papers appear to be in

order and no violations are noted, the apprehending vessel
shall issue a Boarding Certificate to the suspected vessel and
allow the latter to resume its voyage.

3.4. In the event that violations are noted, the

apprehending vessel shall initiate apprehension of the
suspected vessel and/or seizure of its cargo. The Boarding
Team shall accomplish an Inspection/Apprehension Report
(IAR) and issue a copy of the same to the Captain/Chief
Mate of the apprehended vessel.

3.5. The apprehending vessel shall then tow or escort

the apprehended vessel to the nearest naval
base/station/port. If it is not practicable under the
circumstances and with clearance from the task Force/Group
Commander, an apprehended vessel may be brought to
another port.

3.6. Upon reaching port, the apprehending vessel

shall communicate with and turn-over the apprehended
vessel and its cargo to the concerned/appropriate
government agency.[underlining supplied]

Section 4. Searches and seizures done in the said choke and

checkpoints or during visits, board, search , and seizure and in accordance
with the applicable laws shall be used in evidence in any court of law.

Other objectionable provisions of the implementing Guidelines are as

follows:

29
 A. Art. 2, Section 3 – Violators may be subjected to search
and seizure as an incident to a lawful arrest. They shall
be prosecuted pursuant to applicable laws.

B. Art. 3, Section 1 – Searches and seizures are to be

properly effected in the designated checkpoints and
chokepoints.

C. Art. 3, Section 2 – Arrests without warrant may be

affected against persons suspected to be engaged in
kidnapping activities; or against persons giving aid or
comfort to kidnappers.

These provisions violate the constitutional right against unreasonable

search and seizure provided under Section 2, Article III of the Constitution,
thus:
“The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to
be seized.”

6.a. Only a judge can issue w arrants or order searches and

seizures

The assailed Proclamation is an order of the respondent governor to

conduct general search, seizure and arrest addressed to the police, the
armed forces and his civilian emergency forces. This is contrary to the
above provision in the Constitution that a warrant, which is either an order
to search or to arrest, must be sign by a judge.

In Salazar vs. Achacoso 18, this Honorable Court declared as

unconstitutional Article 38 of the Labor Code authorizing the Secretary of
Labor to “cause the arrest and detention” and “order the search” of the
office and the “seizure of documents” of any unlicensed recruiter for
overseas employment. It declared:

18
183 SCRA 145

30
 “The decrees in question, it is well to note, stand as the
dying vestiges of authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge,

may no longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that extent,
we declare Article 38, paragraphs (c), of the Labor Code,
unconstitutional and of no force and effect.”

In Alih vs. Castro 19, the Court acquitted petitioner Alih because the
order to search the house of Alih was admitted by the military to have
come from the Commander of the Southern Command and not from a
judge. The Court said:

“When the respondents could have easily obtained a search

warrant from any of the TEN civil courts open and functioning in
Zamboanga City, they instead simply barged into the beleaguered
premises on the verbal order of their superior officers. One cannot just
force his w ay into any m an’s house on the illegal orders of a
superior, how ever lofty his rank. I ndeed, even the hum blest
hovel is protected from official intrusion because of the ancient
rule, revered in all free regim es, that a m an’s house is his castle.”

6.b. General w arrant is prohibited by the Constitution

A general warrant or a “scatter-shot warrant” is a search warrant

which vaguely describes and does not particularize the personal properties
to be seized without a definite guideline to the searching team as to what
items might be lawfully seized, thus giving the officers discretion regarding
what articles they should seize 20.

The order to conduct general search and seizure resurrects the

vestige of authoritarian rule which is precisely the object sought to be
prevented by the constitutional requirement that the warrant must not only
refer to one specific offence but must also described the place to be
searched or the persons or things to be seized. General warrants as
contemplated by the assailed promulgation have been repeatedly nullified
by this Honorable Court.
19
151 SCRA 279
20
Nolasco v. Pano, G.R. No. 69803, October 8, 1985

31
 In Stonehill vs. Diokno 21, the Court nullified the warrant charging a
person with violation of several laws and authorizing the seizure of
documents relating to all business transactions by saying, that:

“Thus, the warrants authorized the search for the seizure of

records pertaining to all business transactions of petitioners herein,
regardless of whether the transactions were legal or illegal. The warrants
sanctioned the seizure of all records of the petitioners and the
aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights – that the things
to be seized be particularly described – as well as tending to defeat its
major objective: the elimination of general warrants.” [emphasis supplied]

In Burgos vs. Chief of Staff 22, this Court nullified as general warrant
the search warrant authorizing the seizure of almost all properties in the
office of a newspaper publisher. Another general warrant was nullified in
Nolasco vs. Pańo23, because:

“There is absent a definite guideline to the searching team as to

what items might be lawfully seized, thus giving the officers of the law
discretion regarding what articles they should seize as, in fact, taken also
were a portable typewriter and 2 wooden boxes. It is thus in the nature of
a general warrant and infringes on the constitutional mandate requiring
particular description of the things to be seized. In the recent rulings of
this Court, search warrants of similar description were considered null and
void for being too general.”

The assailed Proclamation and its implementing Guidelines grants the

police and the military, worst even more the civilian emergency forces, the
unbridled discretion of what to search and seize.

6.c. Searches and arrests cannot be based on suspicion

but on probable cause

The above-mentioned Article 1, Section 3 of the implementing

Guidelines authorized the warrantless search, seizure and arrest on board
of a vessel, be it motorized or otherwise. It also dispensed with the
requirement that the apprehending officer must act based on probable
21
54 SCRA 312/
22
133 SCRA 800
23
139 SCRA 152

32
cause. Although a warrantless search and seizure on board of vessels is
considered a traditional exception to the constitutional requirement of a
warrant because the vessel can be quickly moved out of the locality or
jurisdiction in which the search must be sought before the warrant could
be secured24, subsequent cases like that of Papa vs. Mago 25 still requires
that there should be probable cause for the arrest and the search.

However, Section 1 of Article 3 of the implementing Guidelines makes

searches and seizures mandatory in checkpoints and chokepoints as
evident from the used of present tense “are” in the phrase “are to be
properly effected” even without the required probable cause. As can be
recalled, searches in checkpoints can only be made if there is probable
cause or waiver on the part of the person to be searched. Otherwise, the
officers manning the checkpoints must limit themselves to visual search. 26

This rule was explained fully in Cabales vs. Court of Appeals 27, thus:

“The m ere m obility of these vehicles, how ever, does not

give the police officers unlim ited discretion to conduct
indiscrim inate searches w ithout w arrants if m ade w ithin the
interior of the territory and in the absence of probable cause. Still
and all, the im portant thing is that there w as probable cause to
conduct the w arrantless search, w hich m ust still be present in
such a case.

Although the term eludes exact definition, probable cause signifies

a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the person
accused is guilty of the offense with which he is charged; or the existence
of such facts and circumstances which could lead a reasonably discreet
and prudent man to believe that an offense has been committed and that
the items, articles or objects sought in connection with said offense or
subject to seizure and destruction by law is in the place to be searched.19
The required probable cause that will justify a warrantless search and
seizure is not determined by a fixed formula but is resolved according to
the facts of each case.

One such form of search of moving vehicles is the "stop-and-

search" without warrant at military or police checkpoints which has been

24
Roldan vs. Arca, 65 SCRA 336
25
22 SCRA 857
26
Valmonte vs. De Villa,
27
G.R. No.136292, January 15, 2002

33
 declared to be not illegal per se, for as long as it is warranted by the
exigencies of public order and conducted in a way least intrusive to
motorists. A checkpoint may either be a mere routine inspection or it may
involve an extensive search.

Routine inspections are not regarded as violative of an individual's

right against unreasonable search. The search which is normally
permissible in this instance is limited to the following instances: (1) where
the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds; (2) simply looks into a vehicle; (3)
flashes a light therein without opening the car's doors; (4) where the
occupants are not subjected to a physical or body search; (5) where the
inspection of the vehicles is limited to a visual search or visual inspection;
and (6) where the routine check is conducted in a fixed area.

In this case of Cabales, the Court in acquitting the accused based on

the illegality of the searched ruled, that: “the fact that the vehicle looked
suspicious simply because it is not common for such to be covered with
kakawati leaves does not constitute "probable cause" as would justify the
conduct of a search without a warrant”.

The Court also related the case of People vs. Chua Ho San 28, thus:

“In People vs. Chua Ho San, we held that the fact that the
w atercraft used by the accused w as different in appearance from
the usual fishing boats that com m only cruise over the Bacnotan
seas coupled w ith the suspicious behavior of the accused w hen
he attem pted to flee from the police authorities do not
sufficiently establish probable cause . Thus:

“xxx”

“xxx The fact that the vessel that ferried him to shore bore
no resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense. x x x." (emphasis supplied)

6.d. Law ful arrest m ust precede the w arrantless search

Section 3.4 of the Guidelines authorizes “fishing expedition”. This

provision when read together with the rest of the provisions on Section 3
provides a clearer picture that a search of a vessel within the seas
surrounding the province is a must even without “probable cause”. Thus,
28
People vs. Chua Ho San, 308 SCRA 432

34
any vessel within the Sulu Sea can be boarded upon and search by the
police, the military and the civilian emergency forces. Should a violation is
noted; a seizure and arrest will then be made. This runs counter to the
repeated doctrine that “there must first be a lawful arrest before a search
can be made-the process cannot be reversed.”29

In his dissent in People vs. Malmstedt 30, Justice Narvasa said:

“The search w as, therefore, illegal since the law requires

that there first be a law ful arrest of an individual before a search
of his body and his belongings m ay licitly be m ade. The process
cannot be reversed, i.e. a search be first undertaken, and then an
arrest effected, on the strength of the evidence yielded by the
search. An arrest m ade in that case w ould be unlaw ful, and the
search undertaken as an incident of such unlaw ful arrest, also
unlaw ful.”

The same can be said of the provision allowing the search and
seizure for violation of the curfew under Section 3 of Article 2 of the
Guidelines. It has to be remembered as stated herein that the imposition of
the curfew is not by an act of legislature in the exercise of police power,
but by executive fiat. Thus, the violation of the curfew cannot be
considered a crime and the person the same is not a criminal that can be
lawfully arrested without warrant and thereafter searched, for the simple
reason that only those committing a crime in one’s presence, or is
attempting to commit a crime in one’s presence and the one who had just
committed a crime in one’s presence can be arrested without warrant by
the person arresting him.

6.e. Only evidence obtain legally may be used against

the accused

Section 4, Article 1 of the Guideline sanctions the non-exclusionary

rule, which is considered contrary to both the letter and the spirit of the
constitutional injunction against unreasonable searches and seizures.31

29
Ibid.
30
198 SCRA 401

35
 Ordinarily, only the articles validly seized during a lawful search is
usable in evidence, not the fact of search and seizure. Otherwise, the
constitution proscribes their presentation as evidence.

Paragraph 2, Section 3 of Article III of the Constitution provides:

“Any evidence obtained in violation of this or the preceding

section shall be inadm issible for any purpose in any proceeding.”

Without this rule, the right to privacy would be a form of words,

valueless and undeserving of mention in a perpetual charter of inestimable
human liberties; so too, without this rule, the freedom from state invasions
of privacy would be so ephemeral and so neatly severed from its
conceptual nexus with the freedom from all brutish means of coercing
evidence as not to merit this Court's high regard as a freedom implicit in
the concept of ordered liberty32.

6.f. Mere suspicion of being a kidnapper or giving aid or

comfort to kidnappers is not a valid cause for a
warrantless arrest

Section 2, Article 3 of the Guideline authorizes arrest on the basis of

being a “suspected” kidnapper or giving aid or comfort to kidnappers. This
violates the constitutional right against unreasonable search and seizure
guaranteed by Section 2 of the Bill of Rights.

It is true that arrest can be made without warrant, but only in

instances mentioned in the Rules of Criminal Procedure, particularly where
the accused is arrested in flagrante delicto. In People v. Chua Ho San,29 the
Court held that in cases of in flagrante delicto arrests, a peace officer or a
private person may, without a warrant, arrest a person when, in his
presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense. The arresting officer, therefore,

31
Stonehill vs. Diokno, 20 SCRA 383
32
People vs. Molina, G.R. 133917,February 19, 2001

36
must have personal knowledge of such fact or, as recent case law adverts
to, personal knowledge of facts or circumstances convincingly indicative or
constitutive of probable cause. As discussed in People vs. Doria 33, probable
cause means an actual belief or reasonable grounds of suspicion. The
grounds of suspicion are reasonable when, in the absence of actual belief
of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good
faith on the part of the peace officers making the arrest.

It is settled that "reliable information" alone, absent any overt act

indicative of a felonious enterprise in the presence and within the view of
the arresting officers, are not sufficient to constitute probable cause that
would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin, 34
it was held that "the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so or
that he had just done so. What he was doing was descending the
gangplank of the MN Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension."

Membership alone or mere suspicion of being a member of the Abu

Sayyaf, no matter how notorious it may be, does not by itself justify an
arrest without warrant. Should the police and the military have reasonable
belief in their suspicion, they should apply for a search warrant or warrant
of arrest. The police and the military should not be too eager in their
approach just to render their efforts useless if their actions are nullified.
33
301 SCRA 668
34
163 SCRA 402

37
 The ponencia of Justice Cruz, in People vs. Mengote finds its
relevance. He said:

“It would be a sad day, indeed, if any person could be summarily

arrested and searched just because he is holding his abdomen, even if it
be possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act or is actually committing or attempting it. This
sim ply cannot be done in a free society. This is not a police state
w here order is exalted over liberty or, w orse, personal m alice on
the part of the arresting officer m ay be justified in the nam e of
security.” [emphasis supplied]

7. THE CURFEW IMPOSED BY

PROCLAMATION NO. 1 AND ITS
IMPLEMENTING GUIDELINES VIOLATES THE
COSTITUTIONAL LIBERTY OF ABODE, THE
RIGHT TO TRAVEL AND RIGHT OF MOVEMENT

Section 2 of the assailed Proclamation No. 1, Series of 2009,

provides:

“The imposition of curfew for the entire province subject to

such Guidelines as may be issued by proper authorities.”

Article II of the assailed implementing Guidelines, provides:

“Section 1 – Curfew shall be enforced from ten o’clock in

the evening up to three o’clock in the morning of the day
following. Violators shall be held under custody of the
apprehending officer to be turned-over to the nearest PNP
station as soon as practicable.

Section 2 – In the determination as to the infraction of the

curfew, circumstances surrounding such violations as nature of
employment and the like that may justify why the person is
outside of his residence at the period when curfew is in effect
shall be considered.

Section 3 – Violators may be subjected to search and

seizure as an incident to a lawful arrest. They shall be prosecuted
pursuant to applicable laws and ordinances.”

The foregoing provisions are unconstitutional as they infringe upon

the right of the people to freely roam around the locality which is
guaranteed by Section 6 of the Constitution, which reads:

38
 “The liberty of the abode and of changing the same within
the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety
or public health, as may be provided by law.”

The curfew also violates the Universal Declaration of Human Rights

which provides:

Article 13. (1) Everyone has the right to freedom of

m ovem ent and residence w ithin the borders of each state.

Likewise, the International Covenant on Civil and Political Rights,

which had been ratified by the Philippines, provides:

Article 12

1) Everyone law fully w ithin the territory of a State shall, w ithin

that territory, have the right to liberty of m ovem ent and freedom
to choose his residence.

The above constitutional provision guarantees what is described as

rights of locomotion and freedom of movement, described in Qutb v.
Strauss 35, as follows:

"The rights of locomotion, freedom of movement, to go where one

pleases, and to use the public streets in a way that does not interfere with
the personal liberty of others are basic values 'implicit in the concept of
ordered liberty' protected by the due process clause of the fourteenth
amendment."

Freedom of movement is a fundamental right and is also basic in our

conception of personal liberty and instrumental to the exercise of the
fundamental rights of expression. This personal liberty consists in the
power of locomotion, of changing situation, or removing one’s person to
whatsoever place one’s own inclination may direct 36. In American
Jurisprudence, the right of free of movement is a “carefully described”
right.

35
11 F.3d 488, 492 (5th Cir. 1993)
36
William Blackstone, 1 Commentaries 34.

39
 The right to move freely is of “tremendous practical significance of …
[this] everyday right, a right we depend on to carry out our daily life
activities”37. It is also implicit in the concept of ordered liberty because it is
instrumental to the exercise of other rights. It is impossible to imagine a
right of association or expression in public fora without an implicit
protection for the right to move freely. “[Freedom of movement] often
makes all other rights meaningful …. Once the right to travel is curtailed,
all other rights suffer, just as when [a] curfew or home detention is placed
on a person.”38

Under the Constitution, the liberty of abode and of changing the

same is limited only by “prescribed laws” and can be impaired only “upon
lawful order of the court. Proclamation No. 1 and its implementing
Guidelines is neither a law nor a court order. It is an executive fiat issued
without authority that shall be slain at sight.

The blanket curfew curfew imposed by the provincial governor places

an “unreasonable burden” on the right of free movement. It also constructs
a “substantial obstacle” to the fundamental right to life and liberty, which
includes the right to earn a living. It threatens everyone with punishment
for the slightest infraction thereof despite the lack of law punishing the
same.

The province of Sulu has a vast shoreline where marginal fishermen

lives and whose only source of income and livelihood is fishing in the
waters of Sulu at night or watching over falling durians in the mountains.
That right is unreasonably curtailed by the imposed curfew.

Moreover, the imposed curfew is so broad that it covers the entire

Province of Sulu. It is over-inclusive, impacting even towns that do not
have a shared problem with that of the town of Indanan, where the
37
Johnson v. City of Cincinnati 310 F.3d 484, 498 (6th Cir. 2002)
38
Aptheker v. Sec’y of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring)

40
hostages are accordingly kept. It stifles the fundamental liberty interests of
thousands of perfectly innocent, law-abiding individuals and makes them
“prisoners at night in their homes.

More objectionable is the above-cited provisions of the Guidelines,

which was promulgated by respondent Clemen of the Philippine Marines
and respondent Latag. There is no law that grants them the power to
impose curfew or to set-up rules or standards for its imposition.

The curfew thus set allows the military commander, the police and
the respondent’s civilian emergency forces to stop, search, arrest and
detain anyone they found violating the same, so that the courts and the
public are unaware of the minimum standard that justifies intrusion into
their constitutionally guaranteed rights.

8. THE GOVERNOR CANNOT ORDER THE

POLICE, THE ARMED FORCES AND THE
CIVILIAN EMERGENCY FORCES TO CONDUCT
OF POLICE ACTIONS OR OPERATIONS

No. 4 of provision of the Proclamation No. 1 orders the Philippine

National Police, the Armed Forces and the Civilian Emergency Forces to “To
conduct such other actions or police operations as may be necessary to
ensure public safety.”

The power of a provincial governor over the PNP is expressly

provided for by Republic Act 6975, otherwise known as the Department of
the Interior and Local Government Act of 1990. It provides:

“Sec. 51. P ow ers of Local Governm ent Officials Over the

P NP Units or Forces. — Governors and m ayors shall be deputized
as representatives of the Com m ission in their respective
territorial jurisdiction. As such, the local ex ecutives shall
discharge the follow ing functions:

(a) P rovincial Governor — (1) P ow er to Choose the

P rovincial Director. — The provincial governor shall choose the

41
 provincial director from a list of three (3) eligible recom m ended
by the P NP regional director.

(2) Overseeing the P rovincial P ublic Safety P lan

I m plem entation. — The governor, as chairm an of the provincial
peace and order council, shall oversee the im plem entation of the
provincial public safety plan, w hich is prepared taking into
consideration the integrated comm unity safety plans, as
provided under paragraph (b) (2) of this section .”

(b) City and M unicipal M ayors — (1) Operational

Supervision and Control. The city and m unicipal m ayors shall
exercise operational supervision and control over P NP units in
their respective jurisdiction except during the thirty (30) day
period im m ediately preceding and the thirty (30) days follow ing
any national, local and barangay elections. During the said
period, the local police forces shall be under the supervision and
control of the Com m ission on Elections.

Thus, unlike the city or municipal mayor, which has operational

supervision and control over the PNP units in their respective jurisdictions,
which includes the power to em ploy and deploy units or elem ents of
the P NP, through the station com m ander, to ensure public safety
and effective m aintenance of peace and order w ithin the locality,
the provincial governor does not have that power. Its authority is limited
only “choose the provincial director” and “oversee the
im plem entation of the provincial public safety plan”. He cannot
therefore order the police forces, more so the Armed Forces and the
civilian emergency forces, to conduct police actions and operations.

9. SECTION 465, REPUCLIC ACT 7160,

OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE IS UNCONSTITUTIONAL
HAVING VIOLATED ARTICLE VII, SECTIONS 1
AND 18 OF THE CONSITUTION AND
CONSTITUTE AN INVALID DELEGATION OF
EXECUTIVE FUNCTION BY CONGRESS

The herein assailed declaration attempts to draw its breath from

Section 465, 2 (vi) of the Local Government Code of 1991, that is quoted in

42
paragraph 5 and 6 of the whereas clause of the assailed proclamation. The
law reads as follows:

“(vi) may call upon the appropriate law enforcement

agencies to suppress disorder, riot, lawless violence,
rebellion, or sedition or to apprehend violators of the law
when public interest so requires and the police forces of the
component city or municipality where the disorder or
violation is happening are inadequate to cope up with the
situation or violations.”

Republic Act 7160 is an act of congress devolving certain functions of

the national government for the purpose of decentralization and for the
local government units to enjoy genuine and meaningful local autonomy 39.
However, the principle of local autonomy does not make local governments
sovereign within the state, it simply means decentralization 40. By devolving
certain powers to the local government unit, congress merely delegates
some of its authority and power to the local government units.

However, congress can delegate only those powers it possesses. This

is based on the Latin maxim: “nemo dat quad non habet”. While it may
delegate legislative powers, congress can not delegate unto the local
government unit an executive power or a judicial power. In David vs.
Arroyo41, the Court mentioned: “Certainly, a body cannot delegate a power
not reposed on it.” As opined by Cruz 42, “The occasions are rare when
executive or judicial powers are exercised outside the departments to
which they legally pertain.”

But, as ruled in Sanlakas and David, the calling-out power of the

President under Section 18, Article 7 of the 1987 Constitution and the
power to declare a state of rebellion or emergency is exclusively an
executive power emanating from the Chief Executive Power under Section

39
Sec. 2, Republic Act 7160
40
Basco vs. PAGCOR, 197 SCRA 52
41
Supra
42
Cruz, Political Law, P. 91, 2002 Edition

43
1 of Article 7 and the Commander-in-Chief power under Section 18 thereof.
Thus, Congress could not validly delegate such power to the local
government unit without the express consent of the executive. Thus, all
provisions of Republic Act No. 7160, granting the local chief executive of
cities [Section 455, b, 2-vi], municipalities [Section 444, b, 2-vi] and
provinces [Section 465, b, 2-vi] the power to call upon law enforcement
agencies to suppress disorder, riot, lawless violence, rebellion or sedition,
or to apprehend violators of the law when public interest so requires and
the police forces of the component city or municipality where the disorder
or violation is happening are inadequate to cope with the situation of the
violators, constitute a delegation of power by congress of a purely
executive power, which are void.

Assuming the delegation is valid, it still has to be remembered that

the powers of a municipal corporations delegated thereto by the National
Government cannot escape the inherent limitations to which the latter, as
the source of said power is subject.43 The above mentioned provision of
the Constitution from which the above-cited provision of the local
government code has been lifted, particularly granting the President with
the call-out power is limited only to cases of lawless violence, invasion or
rebellion. Yet, the local government code which merely delegates that
power to the local chief executive broaden that power by including
“disorder”, “riot” and “to apprehend violators of the law”. Thus, unless
declared unconstitutional, the local chief executive’s call-out power is
broader and more encompassing than that of the Republic of the
Philippines, which is irregular and abnormal.

10. ASSUMING SECTION 465 IS VALID, THE

PROVINCIAL GOVERNOR CLEARLY WENT
BEYOND ITS LIMITS

Section 465 of the Local Government Code is clear and unequivocal:

43
Homeowners Association case

44
 “(vi) may call upon the appropriate law enforcement
agencies to suppress disorder, riot, lawless violence,
rebellion, or sedition or to apprehend violators of the law
when public interest so requires and the police forces of the
component city or municipality where the disorder or
violation is happening are inadequate to cope up with the
situation or violations.”

A similar provision is provided for in Section 459 of Muslim Mindanao

Autonomy Act No. 25, otherwise known as the Local Government Code of
the Autonomous Region in Muslim Mindanao.

Under the above-cited provision of law, the purpose of the calling-

out is to suppress disorder, riot, lawless violence, rebellion, or sedition or
to apprehend violators of the law. Further, it can be exercise only w hen
public safety requires AND the police forces of the com ponent city
or m unicipality w here the disorder or violation is happening are
inadequate. These are the canals that will prevent the power of the local
chief executive from overflowing.

The purpose of Proclamation No. 1, Series of 2009, is not to suppress

riot, disorder, lawless violence, rebellion or sedition or to apprehend
violators of the law but to im plem ent the follow ing: 1. Setting-up of
checkpoints and chokepoints in the province; 2) the imposition of curfew
for the entire province subject to such guidelines as may be issued by
proper authorities; 3) The conduct of General Search and Seizure including
arrests in the pursuit of the kidnappers and their supporters; and, 4) To
conduct such other actions or police operations as may be necessary to
ensure public safety.

Additionally, the on-going hostage crisis of ICRC workers does not

require the exercise of the calling out power; it is neither a calamity nor an
emergency. Public interest does not require the calling of the law
enforcement agencies to suppress the on-going hostage taking.

45
 There is also no showing from the assailed Proclamation that police
force of Indanan or the entire Sulu archipelago is not sufficient to handle
the situation. Further, it would even appear from Section 465, that the call
out power may be exercised only in the locality where the disorder or
violation is happening. Thus, since the disorder is already confined to the
Municipality of Indanan, it is already arbitrary and irrational to exercise said
power outside that locality and expand it to the entire province of Sulu.

Furthermore, the call-out power of the respondent falls under the

“enforcement power” of the provincial governor under paragraph b of
Section 465, which states:

(2) Enforce all law s and ordinances relative to the

governance of the province and the exercise of the appropriate
corporate pow ers provided for under Section 22 of this Code,
im plem ent all approved policies, program s, projects, services and
activities of the province and, in addition to the foregoing, shall:

The above-provision implies the existence of an ordinance duly

enacted by the Sangguniang Panlalawigan in the exercise of its police
power before the chief executive can exercise its call-out power in times of
emergency. The call out power of the provincial governor, unlike that of
the President, is not self executing. There should be a law passed by the
sangguniang like that in the case of the Home Owners Association before
he may exercise the call-out power.

11. SECTION 465 DOES NOT AUTHORIZED

THE ARMING AND THE CALLING OUT OF THE
CIVILIAN EMERGENCY FORCES, WHO ARE
LAW ENFORCEMENT AGENCIES

The law specifically provides that the provincial governor can call
upon the appropriate national law enforcement agencies and no other.
In case of cities and municipalities, the mayor may call upon the

46
 appropriate law enforcement agencies. In all these cases, the local
executive can only call upon LAW ENFORCEMENT AGENCIES, which
has been defined as “an agency responsible for ensuring obedience to
the laws”. In the United States, “A law enforcement officer is a
government employee who is responsible for the prevention,
investigation, apprehension, or detention of individuals suspected or
convicted of offenses against the criminal laws, including an employee
engaged in this activity who is transferred to a supervisory or
administrative position; or serving as a probation or pre-trial services
officer.44

The police auxiliary or civilian emergency forces composed of

undisciplined militias are not a law enforcement agency.

12. PROVINCIAL GOVERNOR OR THE TASK

FORCE ICRC CANNOT AMEND R.A. 8975 AND
PD 1866, AS AMENDED BY R.A. 8294

Through the Guideline, the respondent’s governor, commander of the

Third Marine Brigade and the Deputy for Operations of PNP-ARMM,
suspended the permits to carry firearms outside of residences (PTCFOR) 45.
In the same breath, the implementing Guideline empowered and
authorized the Office of the Governor, upon the recommendation of the
respondent Marine Brigade Commander or the Police Provincial Director, to
grant exemption from the gun ban.

Article 4 of the Guideline is hereby quoted in full as follows:

“Section 1 – As a rule, only military and police personnel are allowed to

bear arms. Firearm licenses shall be honored but permits to carry firearms
outside of their residences shall be temporarily suspended for the period of
this Proclamation Number 1 Series of 2009 is in effect;

44
Dictionary of Military and Associated Terms. US Department of Defense 2005
45
Section 1, Article 4 of the Guideline

47
 Section 2 – Civilians may seek exemption from the gun ban by submitting
accomplished application forms to the Office of the Governor upon
recommendation of the Marine Brigade Commander in the area or Police
Provincial Director.

Section 3 – Civilians specially granted exemption from the immediately

preceding article shall be issued proper identification cards. These
identification cards shall be presented to proper authorities when so
demanded;

Section 4 – Bearers of firearms, ammunition, and explosives who fail to

present such identification card shall be arrested ad the said items
confiscated. The person (s) so arrested may escape criminal prosecution
and the confiscated items returned upon presentations of such
identification card (s) proving exemption.

These are null and void for the following reasons:

12.a. Only the PNP Chief under PD 1866 as amended by

Republic Act No. 6975 can issue firearms license and
permits to carry firearms outside of residence and only
he can revoke or suspend such right

The Court clarified in Chavez vs. Romulo 46, that “a PTCFOR, just like
ordinary licenses in other regulated fields, may be revoked any time. It
does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions, and such as may thereafter be
reasonably imposed.41 A licensee takes his license subject to such
conditions as the Legislature sees fit to impose, and one of the statutory
conditions of this license is that it m ight be revoked by the select m en
at their pleasure. Such a license is not a contract, and a revocation of it
does not deprive the defendant of any property, immunity, or privilege
within the meaning of these words in the Declaration of Rights.

In the same case, the Court held that under existing laws, only the
PNP Chief has the power and authority to grant, revoke or suspend permit
to carry firearms outside of residence. The said authority is anchored on a
specific provision of law validly delegated to the PNP Chief. A similar
delegation is also made in favor of the Commission on Elections during
election periods. But, there is no provision of law that empowers the
46
G.R. No. 157036, June 9, 2004

48
provincial governor or the provincial director of the PNP in the Province to
grant, revoke or suspend permits to carry firearms outside of residence.

The deputy director for operations of the Philippine National Police,

being a subordinate, cannot revoke or suspend the PTCFOR issued by the
PNP Chief.

This Court in that case ruled:

”By virtue of Republic Act No. 6975, the Philippine National Police
(PNP) absorbed the Philippine Constabulary (PC). Consequently, the PNP
Chief succeeded the Chief of the Constabulary and, therefore, assumed
the latter’s licensing authority. Section 24 thereof specifies, as one of
PNP’s powers, the issuance of licenses for the possession of firearms and
explosives in accordance with law. This is in conjunction with the PNP
Chief’s "power to issue detailed implementing policies and instructions"
on such "matters as may be necessary to effectively carry out the
functions, powers and duties" of the PNP.

Contrary to petitioner’s contention, R.A. No. 8294 does not divest

the Chief of the Constabulary (now the PNP Chief) of his authority to
promulgate rules and regulations for the effective implementation of P.D.
No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It
merely provides for the reduction of penalties for illegal possession of
firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the
Constabulary the authority to issue rules and regulations regarding
firearms remains effective. Correspondingly, the Implementing Rules and
Regulations dated September 15, 1997 jointly issued by the Department
of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only
with the automatic review, by the Director of the Bureau of Corrections or
the Warden of a provincial or city jail, of the records of convicts for
violations of P.D. No. 1866. The Rules seek to give effect to the
beneficent provisions of R.A. No. 8294, thereby ensuring the early release
and reintegration of the convicts into the community.

Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP
Chief to issue the assailed guidelines.

Nothing is more settled in law that a public official exercises power,

not rights. The government itself is merely an agency through which the
will of the State is expressed and enforced. Its officers, therefore, are
likewise agents entrusted with the responsibility of discharging its
functions. As such, there is no presumption of authority, either express or
implied. In the absence of a valid grant, public officers are devoid of

49
power. What they do, suffers from a fatal infirmity. 47 Public officers have
only those powers expressly granted or necessarily implied by law.

It has also been held that “Except for constitutional officials who can
trace their competence to act to the fundamental law itself, a public official
must locate in the statute relied upon a grant of power before he can
exercise it. It need not be express. It may be implied from the wording of
the law. Absent such requisite, however, no warrant exists for the
assumption of authority. The act performed, if properly challenged, cannot
meet the test of validity. IT MUST BE SET ASIDE.”

12.b. The respondents cannot substitute the P TCFOR

w ith the identification cards

Under Section 2 of the implementing Guidelines, only those with

identification cards issued by the respondent governor upon
recommendation of his co-respondents can carry firearms outside of their
residences. This is not only contrary to law but also subject to abuse since
no standards are mentioned for the issuance of the identification cards.
The power to grant or to withhold the application for identification cards is
solely left to the unbridled discretion of the respondents.

The provincial governor, police provincial director and the marine

commander cannot create authority nor pretend to be vested with
authority. The issuance of identification cards for exemption from criminal
liability for possession of a licensed firearm violates Section 24 of Republic
Act No. 6975, granting the PNP the power to “(f) I ssue licenses for the
possession of firearm s and explosives in accordance w ith law .”
The Guidelines, in effect amends the provisions of P.D. 1866 and
R.A. 6975 and it expands unreasonably the herein questioned
Proclamation. This is clearly ultra-vires, illegal; and, should be declared
47
Villegas vs. Subido, 33 SCRA 498

50
and considered as non-existence, because it is contrary to existing laws
and the Proclamation on which it is accordingly base.

In Cebu Oxygen & Acetylene Co., Inc. vs. Secretary Drilon48, the
issue was the validity of the implementing rules providing for a prohibition
not contemplated by the law it seeks to implement. In sticking out the law
for being unconstitutional, the Court ruled:

“xxx, it is a fundam ental rule that im plem enting rules

cannot add or detract from the provisions of law it is designed to
im plem ent. xxx. The im plem enting rules cannot provide for such
a prohibition not contem plated by the law .

Adm inistrative regulations adopted under legislative

authority by a particular departm ent m ust be in harm ony w ith
the provisions of the law , and should be for the sole purpose of
carrying into effects its general supervision. The law itself
cannot be expanded by such regulations. An adm inistrative
agency cannot am end an act of congress.”

The case at bar is more objectionable than the aforesaid questioned

regulations because there is no delegating statute expressly authorizing
the respondents to promulgate rules concerning the issuance or
cancellation of permit to carry firearms outside of residence. Yet, they
promulgate the assailed Guideline and included matters not originally
covered by the assailed Proclamation of state of emergency.

12.c. The implementing Guidelines penalize possession

of firearms with authority of law amending RA 8294

The assailed implementing Guidelines penalize possession of

firearms by persons with authority validly issued by the PNP Chief, e.g.
with permit to carry firearms outside of residence (PTCFOR).

Under the herein assailed Guidelines, even those with validly issued
PTCFOR can be arrested and their firearms confiscated unless they are
able to present the identification cards issued by the respondent governor

48
176 SCRA 24

51
after their application for exemption shall have been approved. They can
only “escape criminal prosecution and the confiscated items returned upon
presentation of such identification card(s) proving exemption. ”

This runs counter the recognized doctrine “that for an administrative

regulation to have the force of penal law it is necessary that such violation
be made a crime by the delegating statute, that the penalty be provided
by the statute itself, and that the regulation be published.” 49

As stated earlier, there is no delegating law and no definition of a

crime in the delegating statute. There is also no provision on penalty and
both the Proclamation and its implementing Guidelines were not published
according to law as hereinafter shown.

12.d. The im plem enting Guidelines left the penalty to

the sole discretion of the Court

The implementing Guideline did not provide for the penalty of

possession of firearms with authority from the PNP Chief, leaving the
matter entirely to the judge who will eventually be called upon to interpret
and enforce it. This violates another legal doctrine that the legislature
cannot leave to the courts the determination of the period of
imprisonment or the penalty therefore. We can find inputs from People vs.
Decency50, the Supreme Court, in invalidating a law that left to the
judiciary the determination of the duration of the penalty, held:

“It is not for the courts to fix the term of imprisonment where no
points of reference have been provided by the legislature. What valid
delegation presupposes and sanctions is an exercise of discretion to fix the
length of service of a term of imprisonment which must be encompassed
within the specific or designated limits provided by law, the absence of
which designated limits will constitute such exercise as an undue
delegation, if not outright intrusion into or assumption, of legislative power.

49
Bernas, Constitutional Structure & Powers of Government, Notes and Cases, P. 48, 1991 Edition
50
173 SCRA 90

52
 Section 32 of Republic Act No. 4670 provides for an indeterminable
period of imprisonment, with neither a minimum nor a maximum duration
having been set by the legislative authority. The courts are thus given a
w ide latitude of discretion to fix the term of im prisonm ent,
w ithout even the benefit of any sufficient standard, such that the
duration thereof m ay range, in the w ords of the respondent judge,
from one m inute to the lifespan of the accused. I rrem issibly, this
cannot be allow ed. I t vest in the courts the pow er and a duty
essentially legislature in nature and w hich, as applied to this case,
does violence to the rules on separation of pow ers as w ell as non-
delegability of legislative pow ers. This tim e, the presum ption of
constitutionality has to yield.”

13. PROCLAMATION NO. 1, SERIES OF 2009

AND ITS IMPLEMENTING GUIDELINES, NOT
HAVING BEEN PUBLISHED, IS NOT
EFFECTIVE

As alleged, the assailed Proclamation No. 1 was made public on

March 31, 2009 and it’s implementing Guidelines, though it came later, was
also dated March 31, 2009. Immediately afterwards or on April 1, 2009,
without first publishing the same, respondents implemented the same with
the arrest of petitioner Jadjuli.

The immediate implementation of the herein assailed Proclamation

and its implementing Guidelines violates Executive Order No. 200, June 18,
1987, amending Article 2 of the Civil Code and states:

“Law s shall take effect after fifteen days follow ing the
com pletion of their publication either in the Official Gazette or in
a new spaper of general circulation in the P hilippines, unless it is
otherw ise provided.”

The purpose of this requirement “is necessary to apprise the public of

the contents of [penal] regulations and make the said penalties binding on
the persons affected thereby." As held in Tanada vs. Tuvera 51, thus:

“It is needless to add that the publication of presidential issuances

"of a public nature" or "of general applicability" is a requirement of due
process. It is a rule of law that before a person may be bound by law, he
must first be officially and specifically informed of its contents.”
51
G.R. No. L-63915 April 24, 1985

53
 XI.
ALLEGATIONS IN SUPPORT OF THE URGENT APPLICATION
FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER
AND/OR WRIT OF PRELIMINARY INJUNCTION

11.1. Petitioners replead by reference all the foregoing allegations.

11.2. As will be shown, it is respectfully submitted that the elements

for the issuance of a temporary restraining order and/or writ of preliminary
injunction are present in the instant case, to wit: “(1) The invasion of the
right is material and substantial; (2) The right of complainant is clear and
unmistakable; (3) There is an urgent and permanent necessity for the writ
to prevent serious damage.” (Versoza v. Court of Appeals 299 SCRA
100, 108 [1998]).

11.3. As shown, petitioners have established their clear and legal

right in the instant case, in that public respondents cannot execute and
implement Proclamation No. 1 and its Implementing Guideline as these are
unconstitutional and issued with grave abuse of discretion.

11.4. Being issued without or in excess of jurisdiction, the March 31,

2009 Proclamation and its Implementing Guideline are void and of no legal
effect in the same way as a judgment which was rendered by a court
without or in excess of jurisdiction. “It is, of course, a well-settled rule that
when the court transcends the limits prescribed for it by law and
assumes to act where it has no jurisdiction, its adjudications will
be utterly void and of no effect either as an estoppel or
otherwise.” (Agustin v. Bacalan, 135 SCRA 340, 349 [1985]) (Emphasis
supplied)

11.5. Corollarily, this Honorable Court has ruled that a void judgment
has no legal effect and is deemed to be no judgment at all. In Estoesta,
Sr. v. Court of Appeals, 179 SCRA 203, 212 (1989), the Supreme Court
held: “Quoting with approval Freeman on Judgments this court in Gomez v.

54
Concepcion (47 Phil. 717) declared that: ‘A void judgment is in legal
effect no judgment. By it no rights are divested. From it no rights
can be obtained. Being worthless in itself, all proceedings founded
upon it are equally w orthless . It neither binds nor bar any one. All
acts performed under it and claims flowing out of it are void.xxx”

11.6. However, notwithstanding that the challenged Proclamation No.

1 and its Implementing Guideline are void and of no legal effect, public
respondents are doing, or are suffering to be done, acts in violation of
petitioner’s right in the instant action and tending to render judgment in
this case ineffectual.

11.7. In addition, the damages caused by the public respondents to

the civil and political rights of petitioners and of the Filipino in general are
grave and irreparable, which is defined by this Honorable Court as those
that are of such constant recurrence and are incapable of being justly
compensated.

11.8. Hence, unless public respondents and their agents or any

person acting in their behalf are restrained from implementing and
executing Proclamation No. 1 and its implementing Guideline as well as the
orders issued subsequent thereto, petitioners stand to suffer grave and
irreparable injury.

11.9. Petitioners are ready, willing and able to post a bond in favor of
respondents; in such amount as this Honorable Court may fix to answer for
any and all damages which respondents may suffer by reason of the
issuance of a writ of preliminary injunction should this Honorable Court
finally decide that petitioners are not entitled thereto.

PRAYER

WHEREFORE, petitioners most respectfully and humbly pray that:

55
 1. Immediately upon the filing of this Petition, this Honorable Court
issue a Temporary Restraining Order (TRO) enjoining and restraining
respondents, their representatives or any person or agent acting in their
behalf, from enforcing and/or executing the Proclamation No. 1 and
Guidelines implementing the same.

2. After due notice, hearing and posting of the requisite bond, this
Honorable Court issue a writ of preliminary injunction restraining and
enjoining respondents, their representatives or any person or agent acting
in their behalf, from enforcing and/or executing the Proclamation No. 1 and
the implementing Guideline issued subsequent thereto.

3. After giving due course to the instant Petition and after

due consideration of the issues, this Honorable Court render judgment:

a) making the writ of preliminary injunction permanent;

and
b) Annulling and setting aside the challenged
Proclamation No. 1 and the Guideline implementing the same;

Other just and equitable reliefs are likewise prayed for.

Zamboanga City, for City of Manila, 8 April 2009.

JAMAR M. KULAYAN
Petitioner/Counsel
Unit 1, 2nd Floor, J. Atilano Bld’g.,
I. Magno Street, Zamboanga City
PTR No. 2952954 – 01/05/06 – Zamboanga City
IBP No. 02732 – 01/10/02 – ZAMBASULTA
Roll of Attorneys No. 42828
MCLE Compliance No. I-0017255
Mobile Nos: 09268774444/09086135978

56
COPY FURNISHED:
1. GOV. ABDUSAKUR M. TAN
Office of the Provincial Governor
Capitol Site,Patikul, Sulu
Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila

2. GENERAL JUANCHO SABAN,PN

GENERAL EUGENIO CLEMEN, PN
Task Force COMET/3RD Marie Brigade
Camp Gen. Bautista
Kasulutan Village, Jolo, Sulu
Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila

3. PSSUPT. BIENVENIDO G. LATAG

PSUPT. JULASIRIM KASIM, PNP
Sulu Police Provincial Office
PC Compound, Camp Asturias,
Jolo, Sulu
Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila

4. The Solicitor General

134 Amorsolo St., Legaspi Village,
Makati City
Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila

EXPLANATION AS TO MODE OF SERVICE

The foregoing Petition for Certiorari and Prohibition is being served

on the respondents by registered mail due to time constraints, distance
and the present unavailability of messengerial personnel.

JAMAR M. KULAYAN

57