EN BANC

 

 

G.R. No. 171396             ---      Professor Randolf S. David, et al., Petitioners, versus Gloria Macapagal-Arroyo, as President and Commander-in-Chief, et al, Respondents.

 

G.R. No. 171409              ---     Ninez Cacho-Olivares and Tribune   Publishing Co., Inc., Petitioners, versus Honorable Secretary Eduardo Ermita   and Honorable Director General Arturo C. Lomibao, Respondents.

 

G.R. No. 171485             ---      Francis Joseph G. Escudero, et al.  Petitioners, versus Eduardo R. Ermita,     et al., Respondents.

 

G.R. No. 171483             ---      Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary General Joel Maglunsod, et al., Petitioners, versus Her Excellency President Gloria Macapagal Arroyo,        et al.,  Respondents.

 

G.R. No. 171400             ---  Alternative Law Groups, Inc.. (ALG), Petitioners, versus Executive Secretary,    Eduardo Ermita, et al., Respondents.

 

 

G.R. No. 171489             –        Jose  Anselmo  I.  Cadiz, et al., Petitioners,

versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.

 

G.R. No. 171424             ---      Loren B. Legarda, Petitioner, versus President Gloria Macapagal-Arroyo, in her capacity as President and Commander-in-Chief, et al., Respondents;

 

 

 

                                                Promulgated:

 

                                                  May 3, 2006

 

x ---------------------------------------------------------------------------------------- x

 

CONCURRING OPINION

 

 

YNARES-SANTIAGO, J.:

 

 

            The only real security for social well-being is the free exercise of men’s minds.

 

            -Harold J. Laski, Professor of Government and Member of the British Labor Party, in his book, Authority in the Modern State (1919).

 

 

          The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo once wrote, are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles.[1]  In an open and democratic society, freedom of thought and expression is the matrix, the indispensable condition, of nearly every other form of freedom.[2] 

 

I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President Gloria Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO No. 5), issued by the President pursuant to the same proclamation are both partly unconstitutional.

 

          I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President, as the Commander-in-Chief of all armed forces of the Philippines, of her power to call out such armed forces whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion.  This is allowed under Section 18, Article VII of the Constitution. 

 

However, such “calling out” power does not authorize the President to direct the armed forces or the police to enforce laws not related to lawless violence, invasion or rebellion.  The same does not allow the President to promulgate decrees with the force and effect similar or equal to laws as this power is vested by the Constitution with the legislature.  Neither is it a license to conduct searches and seizures or arrests without warrant except in cases provided in the Rules of Court. It is not a sanction to impose any form of prior restraint on the freedom of the press or expression or to curtail the freedom to peaceably assemble or frustrate fundamental constitutional rights.

 

In the case of Bayan v. Ermita[3] this Court thru Justice Adolfo S. Azcuna emphasized that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection.  These rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.

 

On the other hand, the direct reference to Section 17, Article XII of the Constitution as the constitutional basis for the declaration of a state of national emergency is misplaced.  This provision can be found under the article on National Economy and Patrimony which presupposes that “national emergency” is of an economic, and not political, nature.  Moreover, the said provision refers to the temporary takeover by the State of any privately-owned public utility or business affected with public interest in times of national emergency.  In such a case, the takeover is authorized when the public interest so requires and subject to “reasonable terms” which the State may prescribe.

 

The use of the word “State” as well as the reference to “reasonable terms” under Section 17, Article XII can only pertain to Congress.  In other words, the said provision is not self-executing as to be validly invoked by the President without congressional authorization.  The provision merely declares a state economic policy during times of national emergency.  As such, it cannot be taken to mean as authorizing the President to exercise “takeover” powers pursuant to a declaration of a state of national emergency.

 

The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the power to take over or direct the operation of any privately owned public utility or business affected with public interest without Congressional authorization.  To do so would constitute an ultra vires act on the part of the Chief Executive, whose powers are limited to the powers vested in her by Article VII, and cannot extend to Article XII without the approval of Congress.

 

Thus, the President’s authority to act in times of national emergency is still subject to the limitations expressly prescribed by Congress.  This is a featured component of the doctrine of separation of powers, specifically, the principle of checks and balances as applicable to the political branches of government, the executive and the legislature.

 

With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed forces and the national police “to prevent and suppress acts of terrorism and lawless violence in the country.”  There is presently no law enacted by Congress that defines terrorism, or classifies what acts are punishable as acts of terrorism.  The notion of terrorism, as well as acts constitutive thereof, is at best fraught with ambiguity.  It is therefore subject to different interpretations by the law enforcement agencies. 

 

As can be gleaned from the facts, the lack of a clear definition of what constitutes “terrorism” have led the law enforcement officers to necessarily guess at its meaning and differ as to its application giving rise to unrestrained violations of the fundamental guarantees of freedom of peaceable assembly and freedom of the press.

 

In Kolender v. Lawson,[4] the United States Supreme Court nullified a state statute requiring persons who loitered or wandered on streets to provide “credible and reliable” identification and to account for their presence when requested to do so by a police officer.  Writing for the majority, Justice Sandra Day O’Connor noted that the most important aspect of vagueness doctrine was the imposition of guidelines that prohibited arbitrary, selective enforcement on constitutionally suspect basis by police officers.  This rationale for invocation of that doctrine was of special concern in this case because of the potential for arbitrary suppression of the fundamental liberties concerning freedom of speech and expression, as well as restriction on the freedom of movement.

 

Thus, while I recognize that the President may declare a state of national emergency as a statement of a factual condition pursuant to our ruling in Sanlakas v. Executive Secretary,[5] I wish to emphasize that the same does not grant her any additional powers.  Consequently, while PP 1017 is valid as a declaration of a factual condition, the provisions which purport to vest in the President additional powers not theretofore vested in her must be struck down.  The provision under GO No. 5 ordering the armed forces to carry out measures to prevent or suppress “acts of terrorism” must be declared unconstitutional as well.

 

Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed under the Bill of Rights cannot be preemptive in meeting any and all perceived or potential threats to the life of the nation.  Such threats must be actual, or at least gravely imminent, to warrant government to take proper action.  To allow government to preempt the happening of any event would be akin to “putting the cart before the horse,” in a manner of speaking.  State action is proper only if there is a clear and present danger of a substantive evil which the state has a right to prevent.  We should bear in mind that in a democracy, constitutional liberties must always be accorded supreme importance in the conduct of daily life.  At the heart of these liberties lies freedom of speech and thought – not merely in the propagation of ideas we love, but more importantly, in the advocacy of ideas we may oftentimes loathe.  As succinctly articulated by Justice Louis D. Brandeis: 

 

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. x x x But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.[6]  

 

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.

 

                                     

                                               CONSUELO YNARES-SANTIAGO

                                                              Associate Justice

 


[1] Cardozo, B. Nature of Judicial Process, 1921.

[2] Palko v. State of Connecticut, 302 U.S. 319 (1937).

[3] G.R. Nos. 169838, 169848, 169881, April 25, 2006.

[4] 461 U.S. 352 (1983).

[5] G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.

[6] Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357 (1927).