DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
“Courts will decide a question otherwise moot and academic if it is ‘capable of repetition, yet evading review.’”[1] On this premise, I stood apart from my colleagues in dismissing the petition in Lacson vs. Perez.[2] Their reason was that President Gloria Macapagal-Arroyo’s lifting of the declaration of a “state of rebellion” rendered moot and academic the issue of its constitutionality. Looking in retrospect, my fear then was the repetition of the act sought to be declared unconstitutional.
No more than three (3) years have passed, and here we are again haunted by the same issue.
I
A brief restatement of the facts is imperative.
In the wee hours of
At about
Shortly before the
On
The Mandaluyong City Police likewise searched the townhouses belonging to Laarni Enriquez, allegedly used as staging areas by the Magdalo Group.
On
Meanwhile, on August 4, 2003, Secretary Jose Lina, Jr. of the Department of the Interior and Local Government, forwarded to the DOJ the affidavit-complaint for coup d’etat of PC Chief Superintendent Eduardo Matillano against Senator Gregorio Honasan, Ernesto Macahiya, George Duldulao and several “John and Jane Does” numbering about 1,000.
On
II
I regret that I cannot give my assent to the ponencia of Mr. Justice Dante O. Tinga even as I admire it for its lucidity and historical accuracy. The passage of time has not changed my Opinion in Lacson vs. Perez – that President Arroyo’s declaration of a “state of rebellion” is unconstitutional.
I cannot subscribe to the majority’s view that the declaration of a “state of rebellion” is justified under Article VII of the 1987 Constitution granting her “Executive” and “Commander-in-Chief” powers.
III
Consistent with my previous stand, it is my view that nowhere in the Constitution can be found a provision which grants to the President the authority to declare a “state of rebellion,” or exercise powers, which may be legally allowed only under a state of martial law. President Arroyo, in declaring a “state of rebellion,” deviated from the following provisions of the Constitution:
“Sec. 18. The President shall be the Commander-in-Chief
of all armed forces of the
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”[4]
The powers of the President when she assumed the existence of
rebellion are laid down by the Constitution.
She may (1) call the armed
forces to prevent or suppress lawless violence, invasion or rebellion; (2) suspend the privilege of the writ
of habeas corpus; or (3) place the
If President Arroyo’s only purpose was merely to exercise her “calling out power,” then she could have simply ordered the AFP to prevent or suppress what she perceived as an invasion or rebellion. Such course raises no constitutional objection, it being provided for by the above-quoted provisions. However, adopting an unorthodox measure unbounded and not canalized by the language of the Constitution is dangerous. It leaves the people at her mercy and that of the military, ignorant of their rights under the circumstances and wary of their settled expectations. One good illustration is precisely in the case of invasion or rebellion. Under such situation, the President has the power to suspend the privilege of the writ of habeas corpus or to declare martial law. Such power is not a plenary one, as shown by the numerous limitations imposed thereon by the Constitution, some of which are: (1) the public safety requires it; (2) it does not exceed sixty (60) days; (3) within forty-eight (48) hours, she shall submit a report, in writing or in person, to Congress; (4) The Congress, by a vote of at least a majority of all its members, may revoke such proclamation or suspension. All these limitations form part of the citizens’ settled expectations. If the President exceeds the set limitations, the citizens know that they may resort to this Court through appropriate proceeding to question the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ. In turn, this Court shall promulgate its Decision within thirty days from the filing of the proper pleading. All the foregoing guarantees and limitations are absent in the declaration of a “state of rebellion.” It is not subject to clear legal restraints. How then can the citizens determine the propriety of the President’s acts committed pursuant to such declaration? How can excess of power be curtailed at its inception?
Indeed, I see no reason for the President to deviate from the concise and plain provisions of the Constitution. In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for questionable purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional.[5] Extraordinary conditions may call for extraordinary remedies. But it cannot justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.[6]
I cannot simply close my eyes to the dangers that lurk behind the
seemingly harmless declaration of a “state of rebellion.” Still fresh from my memory is the
On President Arroyo’s mere declaration of a “state of rebellion,”
police authorities arrested without warrants the above-mentioned
personalities. In effect, she placed the
Even under Section 5, Rule 113 of the Revised Rules on Criminal
Procedure[11]
the warrantless arrests effected by President Arroyo’s men are not
justified. The above-mentioned
personalities cannot be considered “to
have committed, are actually committing, or are attempting to commit an
offense” at the time they were arrested without warrants. None
of them participated in the riot which took place in the vicinity of the
The circumstances that arose from President Arroyo’s resort to
the declaration of a “state of rebellion” to suppress what she perceived as the
Significantly, while the Oakwood event ended peacefully on the
night of
Generally, the power of the President in times of war, invasion
or rebellion and during other emergency situations should be exercised jointly
with Congress. This is to insure the
correctness and propriety of authorizing our armed forces to quell such
hostilities. Such collective judgment is
to be effected by “heightened consultation” between the President and
Congress. Thus, as can be gleaned from
the provisions of the Constitution, when the President proclaims martial law or
suspends the privilege of the writ, he
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.” Not only that, Section
23, Article VI of the Constitution provides that: “The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the
existence of a state of war. In times of
war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared
national policy.” Clearly, the
Constitution has not extended excessive authority in military, defense and
emergency matters to the President.
Though the President is designated as the Commander-in-Chief of all armed forces of the
By sustaining the unusual course taken by President Arroyo, we are traversing a very dangerous path. We are opening the way to those who, in the end, would turn our democracy into a totalitarian rule. While it may not plunge us straightway into dictatorship, however, it is a step towards a wrong direction. History must not be allowed to repeat itself. Any act which gears towards possible dictatorship must be severed at its inception. As I have stated in my previous dissent, our nation had seen the rise of a dictator into power. As a matter of fact, the changes made by the 1986 Constitutional Commission in the martial law text of the Constitution were to a large extent a reaction against the direction which this Court took during the regime of President Marcos.[13] In ruling that the declaration of a “state of rebellion” is a prerogative of the President, then, I say, our country is tracing the same dangerous road of the past.
IV
The majority cited
There are reasons why I find the above conclusion of the majority
naccurate. From a survey of
“The Solicitor general seeks
the power of seizure in three clauses of the Executive Article, the first
reading, ‘The executive Power shall be
vested in a President of the
The example of such
unlimited executive power that must have most impressed the forefathers was the
prerogative exercised by George III, and the description of its evils in the
Declaration of
The clause on which the
Government next relies is that ‘The President shall be Commander in Chief of
the Army and Navy of the
x x x x x x
The third clause in which
the Solicitor General finds seizure powers is that ‘he shall take care that the
laws be faithfully executed…’ That
authority must be matched against words of the Fifth Amendment that ‘No person
shall be…deprived of life, liberty or property, without due process of law…’ One gives a governmental authority that
reaches so far as there is law, the other gives a private right that authority
shall go no farther. These signify about
all there is of the principle that ours is a governmental of laws, not of men,
and that we submit ourselves to rulers only if under rules.”
Further, Mr. Justice Jackson referred to the discussion of inherent executive powers as “loose and irresponsible use of adjectives.” His wrath could be seen as reserved for those who use the word “inherent” to mean “unlimited.”[20] Thus:
“The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
Loose and irresponsible use
of adjectives colors all non-legal and much legal discussion of presidential
powers. ‘Inherent’ powers, ‘implied’
powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’
powers are used, often interchangeably and without fixed or ascertainable
meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test…”
In re Debs also
received a serious blow in
In Prizes Cases, by a
vote of 5 to 4, the U.S. Supreme Court upheld President Abraham Lincoln’s
authority to impose a blockade. Under
the U.S. Constitution, only Congress, empowered to declare a war, could impose
a blockade. It must be emphasized,
however, that there is a distinction between the role of the U.S. President in domestic affairs and in foreign affairs. The
patterns in the foreign and domestic realms are quite different. The federal regulation of domestic affairs
has its constitutional origins in the people and the states, and its initiation
is allocated primarily to Congress (not the Executive). The
constitutional role for the executive in domestic matters is thus largely
ancillary to that of Congress.[22]
Thus, while it is recognized that
executive power is predominant in foreign affairs, it is not so in the domestic
sphere. This distinction should be
considered in invoking
Clearly, the trail of U.S. jurisprudence does not support the view that the “Executive and Commander-in-Chief clauses” of the Constitution grant the President such broad power as to give her the option of disregarding the other restrictive provisions of the Constitution. The purpose of the Constitution is not only to grant power, but to keep it from getting out of hand. The policy should be –– where the Constitution has laid down specific procedures on how the President should deal with a crisis, it is imperative that he must follow those procedures in meeting the crisis. These procedures serve as limitations to what would otherwise be an unbounded exercise of power.
V
In fine, may I state that every presidential claim to a power must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. The powers of the President are not as particularized as are those of Congress. Enumerated powers do not include undefined powers, as what the majority would want to point out. I state once more that there is no provision in our Constitution authorizing the President to declare “a state of rebellion.” Not even the constitutional powers vested upon her include such power.
WHEREFORE, I vote to GRANT the petitions. Proclamation No. 427 and General Order No. 4 are declared UNCONSTITUTIONAL.
[1]
Salva vs. Makalintal, G.R. No. 132603,
[2]
G.R. No. 147780,
[3] The Report of the Fact-Finding Commission at 1.
[4] Section 18, Article VII of the 1987 Constitution.
[5] Smith/Cotter, Powers of the President During Crises, 1972 at 13.
[6] Freund, Sutherland, Howe, Brown, Constitutional Law, 4th Ed. 1977 at 656.
[7]
inq7.net,
[8]
inq7.net,
[9]
[10] Article III, Section 2, 1987 Constitution.
[11] “Sec. 5. Arrest without warrant, when lawful. – A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; x x x.”
[12] But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo’s declaration of a “state of rebellion.” Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil vs. Ramos, 187 SCRA 311 (1990), quoted below must be given a second look.
“I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the ‘continuing’ offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for.”
[13]
Bernas, S.J., The 1987 Constitution of
the Republic of the
[14]
158
[15] 2 Black 635,17 L. 459 (1863).
[16] Freund, Sutherland, Howe, Brown, Constitutional Law, 4th Ed. 1977 at 656.
[17]
158
[18]
Youngstown Sheet & Tube Co. vs.
Sawyer, 343
[19] Tresolini, American Constitutional Law, 1959 at 251.
[20] Tribe, American Constitutional Law, 1978 at 183.
[21]
407
[22] Tribe, supra.