Balag v.

Senate

Horacio Castillo III hazing case

DOCTRINE OF THE CASE

The interests of the Senate and the witnesses appearing in its legislative inquiry are
balanced. The Senate can continuously and effectively exercise its power of contempt
during the legislative inquiry against recalcitrant witnesses, even during recess. Such
power can be exercised by the Senate immediately when the witness performs a
contemptuous act, subject to its own rules and the constitutional rights of the said
witness. However, the Senate will be prevented from effectively conducting legislative
hearings during recess – shall be duly addressed because it is expressly provided
herein that the Senate may still exercise its power of contempt during legislative
hearings while on recess provided that the period of imprisonment shall only last until
the termination of the legislative inquiry, specifically, upon the approval or disapproval of
the Committee Report. Thus, the Senate’s inherent power of contempt is still potent and
compelling even during its recess. At the same time, the rights of the persons appearing
are respected their detention shall not be indefinite.

Permanent Court of Arbitration

Background to the Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an intergovernmental organization

established by the 1899 Hague Convention on the Pacific Settlement of International
Disputes. The PCA has 121 Member States. Headquartered at the Peace Palace in The
Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and
other dispute resolution proceedings among various combinations of States, State
entities, intergovernmental organizations, and private parties. The PCA’s International
Bureau is currently administering 8 interstate disputes, 73 investor-State arbitrations,
and 34 cases arising under contracts involving a State or other public entity. The PCA
has administered 12 cases initiated by States under Annex VII to the United Nations
Convention on the Law of the Sea.

In July 2013, the Tribunal in the South China Sea Arbitration appointed the PCA to
serve as Registry for the proceedings. The Tribunal’s Rules of Procedure provide that
the PCA shall “maintain an archive of the arbitral proceedings and provide appropriate
registry services as directed by the Arbitral Tribunal.” Such services include assisting
with the identification and appointment of experts; publishing information about the
arbitration and issuing press releases; organizing the hearings at the Peace Palace in
The Hague; and the financial management of the case, which involves holding a deposit
for expenses in the arbitration, such as to pay arbitrator fees, experts, technical support,
court reporters etc. The Registry also serves as the channel of communications
amongst the Parties and the Tribunal and observer States.

SUMMARY OF THE TRIBUNAL’S DECISIONS ON ITS JURISDICTION AND ON THE

MERITS OF THE PHILIPPINES’ CLAIMS

Background to the Arbitration

The South China Sea Arbitration between the Philippines and China concerned an
application by the Philippines for rulings in respect of four matters concerning the
relationship between the Philippines and China in the South China Sea. First, the
Philippines sought a ruling on the source of the Parties’ rights and obligations in the
South China Sea and the effect of the United Nations Convention on the Law of the Sea
(“Convention”) on China’s claims to historic rights within its so-called ‘nine-dash line’.
Second, the Philippines sought a ruling on whether certain maritime features claimed by
both China and the Philippines are properly characterized as islands, rocks, low-tide
elevations or submerged banks under the Convention. The status of these features
under the Convention determines the maritime zones they are capable of generating.
Third, the Philippines sought rulings on whether certain Chinese actions in the South
China Sea have violated the Convention, by interfering with the exercise of the
Philippines’ sovereign rights and freedoms under the Convention or through
construction and fishing activities that have harmed the marine environment. Finally, the
Philippines sought a ruling that certain actions taken by China, in particular its large-
scale land reclamation and construction of artificial islands in the Spratly Islands since
this arbitration was commenced, have unlawfully aggravated and extended the Parties’
dispute.

The Chinese Government has adhered to the position of neither accepting nor
participating in these arbitral proceedings. It has reiterated this position in diplomatic
notes, in the “Position Paper of the Government of the People’s Republic of China on
the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of
the Philippines” dated 7 December 2014 (“China’s Position Paper”), in letters to
members of the Tribunal from the Chinese Ambassador to the Kingdom of the
Netherlands, and in many public statements. The Chinese Government has also made
clear that these statements and documents “shall by no means be interpreted as
China’s participation in the arbitral proceeding in any form.”

Two provisions of the Convention address the situation of a party that objects to the
jurisdiction of a tribunal and declines to participate in the proceedings:

(a) Article 288 of the Convention provides that: “In the event of a dispute as to whether
a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or
tribunal.”
(b) Article 9 of Annex VII to the Convention provides that:

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to
defend its case, the other party may request the tribunal to continue the proceedings
and to make its award. Absence of a party or failure of a party to defend its case shall
not constitute a bar to the proceedings. Before making its award, the arbitral tribunal
must satisfy itself not only that it has jurisdiction over the dispute but also that the claim
is well founded in fact and law.
Throughout these proceedings, the Tribunal has taken a number of steps to fulfil its duty
to satisfy itself as to whether it has jurisdiction and whether the Philippines’ claims are
“well founded in fact and law”. With respect to jurisdiction, the Tribunal decided to treat
China’s informal communications as equivalent to an objection to jurisdiction, convened
a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, questioned the
Philippines both before and during the hearing on matters of jurisdiction, including
potential issues not raised in China’s informal communications, and issued an Award on
Jurisdiction and Admissibility on 29 October 2015 (the “Award on Jurisdiction”), deciding
some issues of jurisdiction and deferring others for further consideration in conjunction
with the merits of the Philippines’ claims. With respect to the merits, the Tribunal sought
to test the accuracy of the Philippines’ claims by requesting further written submissions
from the Philippines, by convening a hearing on the merits from 24 to 30 November
2015, by questioning the Philippines both before and during the hearing with respect to
its claims, by appointing independent experts to report to the Tribunal on technical
matters, and by obtaining historical records and hydrographic survey data for the South
China Sea from the archives of the United Kingdom Hydrographic Office, the National
Library of France, and the French National Overseas Archives and providing it to the
Parties for comment, along with other relevant materials in the public domain.

The Tribunal’s Decisions on the Merits of the Philippines’ Claims

a. The ‘Nine-Dash Line’ and China’s Claim to Historic Rights in the Maritime
Areas of the South China Sea
In its Award of 12 July 2016, the Tribunal considered the implications of China’s
‘nine-dash line’ and whether China has historic rights to resources in the South
China Sea beyond the limits of the maritime zones that it is entitled to pursuant to
the Convention. The Tribunal examined the history of the Convention and its
provisions concerning maritime zones and concluded that the Convention was
intended to comprehensively allocate the rights of States to maritime areas. The
Tribunal noted that the question of pre-existing rights to resources (in particular
fishing resources) was carefully considered during the negotiations on the
creation of the exclusive economic zone and that a number of States wished to
preserve historic fishing rights in the new zone. This position was rejected, 9
however, and the final text of the Convention gives other States only a limited
 right of access to fisheries in the exclusive economic zone (in the event the
coastal State cannot harvest the full allowable catch) and no rights to petroleum
or mineral resources. The Tribunal found that China’s claim to historic rights to
resources was incompatible with the detailed allocation of rights and maritime
zones in the Convention and concluded that, to the extent China had historic
rights to resources in the waters of the South China Sea, such rights were
extinguished by the entry into force of the Convention to the extent they were
incompatible with the Convention’s system of maritime zones. The Tribunal also
examined the historical record to determine whether China actually had historic
rights to resources in the South China Sea prior to the entry into force of the
Convention. The Tribunal noted that there is evidence that Chinese navigators
and fishermen, as well as those of other States, had historically made use of the
islands in the South China Sea, although the Tribunal emphasized that it was not
empowered to decide the question of sovereignty over the islands. However, the
Tribunal considered that prior to the Convention, the waters of the South China
Sea beyond the territorial sea were legally part of the high seas, in which vessels
from any State could freely navigate and fish. Accordingly, the Tribunal
concluded that historical navigation and fishing by China in the waters of the
South China Sea represented the exercise of high seas freedoms, rather than a
historic right, and that there was no evidence that China had historically
exercised exclusive control over the waters of the South China Sea or prevented
other States from exploiting their resources. Accordingly, the Tribunal concluded
that, as between the Philippines and China, there was no legal basis for China to
claim historic rights to resources, in excess of the rights provided for by the
Convention, within the sea areas falling within the ‘nine-dash line’.

b. The Status of Features in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the status of features in the
South China Sea and the entitlements to maritime areas that China could
potentially claim pursuant to the Convention. The Tribunal first undertook a
technical evaluation as to whether certain coral reefs claimed by China are or are
not above water at high tide. Under Articles 13 and 121 of the Convention,
features that are above water at high tide generate an entitlement to at least a 12
nautical mile territorial sea, whereas features that are submerged at high tide
generate no entitlement to maritime zones. The Tribunal noted that many of the
reefs in the South China Sea have been heavily modified by recent land
reclamation and construction and recalled that the Convention classifies features
on the basis of their natural condition. The Tribunal appointed an expert
hydrographer to assist it in evaluating the Philippines’ technical evidence and
relied heavily on archival materials and historical hydrographic surveys in
evaluating the features. The Tribunal agreed with the Philippines that
Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are
high-tide features and that Subi Reef, Hughes Reef, Mischief Reef, and Second
Thomas Shoal were submerged at high tide in their natural condition. However,
the Tribunal disagreed with the Philippines regarding the status of Gaven Reef
 (North) and McKennan Reef and concluded that both are high tide features. The
Tribunal then considered whether any of the features claimed by China could
generate an entitlement to maritime zones beyond 12 nautical miles. Under
Article 121 of the Convention, islands generate an entitlement to an exclusive
economic zone of 200 nautical miles and to a continental shelf, but “[r]ocks which
cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.” The Tribunal noted that this
provision was closely linked to the expansion of coastal State jurisdiction with the
creation of the exclusive economic zone and was intended to prevent
insignificant features from generating large entitlements to maritime zones that
would infringe on the entitlements of inhabited territory or on the high seas and
the area of the seabed reserved for the common heritage of mankind. The
Tribunal interpreted Article 121 and concluded that the entitlements of a feature
depend on (a) the objective capacity of a feature, (b) in its natural condition, to
sustain either (c) a stable community of people or (d) economic activity that is
neither dependent on outside resources nor purely extractive in nature. The
Tribunal noted that many of the features in the Spratly Islands are currently
controlled by one or another of the littoral States, which have constructed
installations and maintain personnel there. The Tribunal considered these
modern presences to be dependent on outside resources and support and noted
that many of 10 the features have been modified to improve their habitability,
including through land reclamation and the construction of infrastructure such as
desalination plants. The Tribunal concluded that the current presence of official
personnel on many of the features does not establish their capacity, in their
natural condition, to sustain a stable community of people and considered that
historical evidence of habitation or economic life was more relevant to the
objective capacity of the features. Examining the historical record, the Tribunal
noted that the Spratly Islands were historically used by small groups of fishermen
from China, as well as other States, and that several Japanese fishing and guano
mining enterprises were attempted in the 1920s and 1930s. The Tribunal
concluded that temporary use of the features by fishermen did not amount to
inhabitation by a stable community and that all of the historical economic activity
had been extractive in nature. Accordingly, the Tribunal concluded that all of the
high-tide features in the Spratly Islands (including, for example, Itu Aba, Thitu,
West York Island, Spratly Island, North-East Cay, South-West Cay) are legally
“rocks” that do not generate an exclusive economic zone or continental shelf.
The Tribunal also held that the Convention does not provide for a group of
islands such as the Spratly Islands to generate maritime zones collectively as a
unit.

c. Chinese Activities in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the lawfulness under the
Convention of various Chinese actions in the South China Sea. Having found
that Mischief Reef, Second Thomas Shoal and Reed Bank are submerged at
high tide, form part of the exclusive economic zone and continental shelf of the
Philippines, and are not overlapped by any possible entitlement of China, the
Tribunal concluded that the Convention is clear in allocating sovereign rights to
the Philippines with respect to sea areas in its exclusive economic zone. The
Tribunal found as a matter of fact that China had (a) interfered with Philippine
petroleum exploration at Reed Bank, (b) purported to prohibit fishing by
Philippine vessels within the Philippines’ exclusive economic zone, (c) protected
and failed to prevent Chinese fishermen from fishing within the Philippines’
exclusive economic zone at Mischief Reef and Second Thomas Shoal, and (d)
constructed installations and artificial islands at Mischief Reef without the
authorization of the Philippines. The Tribunal therefore concluded that China had
violated the Philippines’ sovereign rights with respect to its exclusive economic
zone and continental shelf. The Tribunal next examined traditional fishing at
Scarborough Shoal and concluded that fishermen from the Philippines, as well as
fishermen from China and other countries, had long fished at the Shoal and had
traditional fishing rights in the area. Because Scarborough Shoal is above water
at high tide, it generates an entitlement to a territorial sea, its surrounding waters
do not form part of the exclusive economic zone, and traditional fishing rights
were not extinguished by the Convention. Although the Tribunal emphasized that
it was not deciding sovereignty over Scarborough Shoal, it found that China had
violated its duty to respect to the traditional fishing rights of Philippine fishermen
by halting access to the Shoal after May 2012. The Tribunal noted, however, that
it would reach the same conclusion with respect to the traditional fishing rights of
Chinese fishermen if the Philippines were to prevent fishing by Chinese nationals
at Scarborough Shoal. The Tribunal also considered the effect of China’s actions
on the marine environment. In doing so, the Tribunal was assisted by three
independent experts on coral reef biology who were appointed to assist it in
evaluating the available scientific evidence and the Philippines’ expert reports.
The Tribunal found that China’s recent large scale land reclamation and
construction of artificial islands at seven features in the Spratly Islands has
caused severe harm to the coral reef environment and that China has violated its
obligation under Articles 192 and 194 of the Convention to preserve and protect
the marine environment with respect to fragile ecosystems and the habitat of
depleted, threatened, or endangered species. The Tribunal also found that
Chinese fishermen have engaged in the harvesting of endangered sea turtles,
coral, and giant clams on a substantial scale in the South China Sea, using
methods that inflict severe damage on the coral reef environment. The Tribunal
found that Chinese authorities were aware of these activities and failed to fulfill
their due diligence obligations under the Convention to stop them. Finally, the
Tribunal considered the lawfulness of the conduct of Chinese law enforcement
vessels at Scarborough Shoal on two occasions in April and May 2012 when
Chinese vessels had sought to physically obstruct Philippine vessels from
approaching or gaining entrance to the Shoal. In doing so, the Tribunal was 11
assisted by an independent expert on navigational safety who was appointed to
assist it in reviewing the written reports provided by the officers of the Philippine
vessels and the expert evidence on navigational safety provided by the
Philippines. The Tribunal found that Chinese law enforcement vessels had
 repeatedly approached the Philippine vessels at high speed and sought to cross
ahead of them at close distances, creating serious risk of collision and danger to
Philippine ships and personnel. The Tribunal concluded that China had breached
its obligations under the Convention on the International Regulations for
Preventing Collisions at Sea, 1972, and Article 94 the Convention concerning
maritime safety.

d. Aggravation of the Dispute between the Parties

In its Award of 12 July 2016, the Tribunal considered whether China’s recent
large-scale land reclamation and construction of artificial islands at seven
features in the Spratly Islands since the commencement of the arbitration had
aggravated the dispute between the Parties. The Tribunal recalled that there
exists a duty on parties engaged in a dispute settlement procedure to refrain from
aggravating or extending the dispute or disputes at issue during the pendency of
the settlement process. The Tribunal noted that China has (a) built a large
artificial island on Mischief Reef, a low-tide elevation located in the exclusive
economic zone of the Philippines; (b) caused permanent, irreparable harm to the
coral reef ecosystem and (c) permanently destroyed evidence of the natural
condition of the features in question. The Tribunal concluded that China had
violated its obligations to refrain from aggravating or extending the Parties’
disputes during the pendency of the settlement process.

e. Future Conduct of the Parties

Finally, the Tribunal considered the Philippines’ request for a declaration that,
going forward, China shall respect the rights and freedoms of the Philippines and
comply with its duties under the Convention. In this respect, the Tribunal noted
that both the Philippines and China have repeatedly accepted that the
Convention and general obligations of good faith define and regulate their
conduct. The Tribunal considered that the root of the disputes at issue in this
arbitration lies not in any intention on the part of China or the Philippines to
infringe on the legal rights of the other, but rather in fundamentally different
understandings of their respective rights under the Convention in the waters of
the South China Sea. The Tribunal recalled that it is a fundamental principle of
international law that bad faith is not presumed and noted that Article 11 of
Annex VII provides that the “award . . . shall be complied with by the parties to
the dispute.” The Tribunal therefore considered that no further declaration was
necessary.
Lagman Case

These are consolidated petitions,1 filed under the third paragraph, Section 18 of Article
VII of the Constitution, assailing the constitutionality of the extension of the proclamation
of martial law and suspension of the privilege of the writ of habeas corpus in the entire
Mindanao for one year from January 1 to December 31, 2018. Petitioners in G.R. No.
235935 alternatively, but not mandatorily, invoke the Court's expanded jurisdiction
under Section 1 of Article VIII of the Constitution. Petitioners in G.R. Nos. 235935,
236061 and 236155 pray for a temporary restraining order (TRO) and/or writ of
preliminary injunction to enjoin respondents from implementing the one-year extension.

Ruling of the Court

Procedural Issues:

Failure to attach Resolution of Both Houses No. 4 is not fatal to the petitions.

Section 1,75 Rule 129 of the Rules of Court provides that a court can take judicial notice
of the official acts of the legislative department without the introduction of evidence.

"Judicial notice is the cognizance of certain facts that judges may properly take and act
on without proof because these facts are already known to them; it is the duty of the
court to assume something as matters of fact without need of further evidentiary
support."76

Resolution of Both Houses No. 4 is an official act of Congress, thus, this Court can take
judicial notice thereof. The Court also notes that respondents annexed a copy of the
Resolution to their Consolidated Comment.77 Hence, We see no reason to consider
petitioners' failure to submit a certified copy of the Resolution as a fatal defect that
forecloses this Court's review of the petitions.

The President should be dropped as party respondent

Presidential privilege of immunity from suit is a well-settled doctrine in our

jurisprudence. The President may not be sued during his tenure or actual incumbency,
and there is no need to expressly grant such privilege in the Constitution or law. 78 This
privilege stems from the recognition of the President's vast and significant functions
which can be disrupted by court litigations. As the Court explained in Rubrico v.
Macapagal-Arroyo, et al.:79

It will degrade the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by
the Constitution necessarily impairs the operation of the Government.80
Accordingly, in David, the Court ruled that it was improper to implead former President
Gloria Macapagal-Arroyo in the petitions assailing the constitutionality of Presidential
Proclamation No. 1017, where she declared a state of national emergency, and General
Order No. 5, where she called upon the AFP and the Philippine National Police (PNP) to
prevent and suppress acts of terrorism and lawless violence in the country.

It is, thus, clear that petitioners in G.R. Nos. 236061 and 236145 committed a
procedural misstep in including the President as a respondent in their petitions.

The Congress is an indispensable party to the consolidated petitions.

Of the four petitions before the Court, only G.R. No. 236145 impleaded the Congress as
party-respondent.

Section 7, Rule 3 of the Rules of Court requires that "parties in interest without whom no
final determination can be had of an action shall be joined as plaintiffs or defendants."
In Marmo, et al. v. Anacay,81 the Court explained that:

[A] party is indispensable, not only if he has an interest in the subject matter of the
controversy, but also if his interest is such that a final decree cannot be made without
affecting this interest or without placing the controversy in a situation where the final
determination may be wholly inconsistent with equity and good conscience. He is a
person whose absence disallows the court from making an effective, complete, or
equitable determination of the controversy between or among the contending
parties.82 (Citation omitted)
In these consolidated petitions, petitioners are questioning the constitutionality of a
congressional act, specifically the approval of the President's request to extend martial
law in Mindanao. Petitioners in G.R. No. 235935 and 236155 have also put in issue the
manner in which the Congress deliberated upon the President's request for extension.
Clearly, therefore, it is the Congress as a body, and not just its leadership, which has
interest in the subject matter of these cases. Consequently, it was procedurally incorrect
for petitioners in G.R. Nos. 235935, 236061 and 236155 to implead only the Senate
President and the House Speaker among the respondents.

Arguably, Senator Aquilino Pimentel III and House Speaker Pantaleon Alvarez can be
said to have an interest in these cases, as representatives of the Senate and the House
of Representatives, respectively. However, considering that one of their main
contentions is that the "supermajority" of the Congress gravely abused their discretion
when they allegedly railroaded the adoption of Resolution of Both Houses No. 4, it
stands to reason and the requirements of due process that petitioners in G.R. Nos.
235935 and 236061 should have impleaded the Congress as a whole. 83 Needless to
say, the entire body of Congress, and not merely the respective leaders of its two
Houses, will be directly affected should We strike down the extension of martial law.
Thus, We hold that in cases impugning the extension of martial law for lack of sufficient
factual basis, the entire body of the Congress, composed of the Senate and the House
of Representatives, must be impleaded, being an indispensable party thereto.

It is true that a party's failure to implead an indispensable party is not per se a ground
for the dismissal of the action, as said party may be added, by order of the court on
motion of the party or motu propio, at any stage of the action or at such times as are
just. However, it remains essential - as it is jurisdictional - that an indispensable party be
impleaded before judgment is rendered by the court, as the absence of such
indispensable party renders all subsequent acts of the court null and void for want of
authority to act, not only as to the absent parties but even as to those present. 84 Joining
indispensable parties into an action is mandatory, being a requirement of due process.
In their absence, the judgment cannot attain real finality.85

We are, thus, unprepared to trivialize the necessity to implead the entire Congress as
party-respondent in this proceeding, especially considering that the factual scenario and
the concomitant issues raised herein are novel and unprecedented.

Nevertheless, inasmuch as the Congress was impleaded as a respondent in G.R. No.

236145 and the OSG has entered its appearance and argued for all the respondents
named in the four consolidated petitions, the Court finds that the "essential" and
"jurisdictional" requirement of impleading an indispensable party has been substantially
complied with.

The Court is not barred by the doctrine of conclusiveness of judgment from

examining the persistence of rebellion in Mindanao

Citing the doctrine of conclusiveness of judgment, respondents contend that petitioners

could no longer raise the issue of the existence of rebellion in Mindanao, in light of this
Court's ruling in Lagman86 and Padilla v. Congress.87

Reliance on the doctrine of conclusiveness of judgment is misplaced.

Conclusiveness of judgment, a species of the principle of res judicata, bars the re-
litigation of any right, fact or matter in issue directly adjudicated or necessarily involved
in the determination of an action before a competent court in which judgment is
rendered on the merits.88 In order to successfully apply in a succeeding litigation the
doctrine of conclusiveness of judgment, mere identities of parties and issues is required.

In this case, despite the addition of new petitioners, We find that there is substantial
identity of parties between the present petitions and the earlier Lagman case given their
privity or shared interest in either protesting or supporting martial law in Mindanao. It is
settled that for purposes of res judicata, only substantial identity of parties is required
and not absolute identity. There is substantial identity of parties when there is
community of interest between a party in the first case and a party in the second case
even if the latter was not impleaded in the first case.89
As to the second requirement, We do not find that there is identity of issues between
the Lagman90 and Padilla91 cases, on one hand, and the case at bar.

In Padilla, petitioners sought to require the Congress to convene in a joint session to

deliberate whether to affirm or revoke Presidential Proclamation No. 216, and to vote
thereon. After consideration of the arguments of the parties, We ruled that under
Section 18, Article VII of the 1987 Constitution, the Congress is only required to vote
jointly to revoke the President's proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus. We clarified that there is no constitutional
requirement that Congress must conduct a joint session for the purpose of concurring
with the President's declaration of martial law.

In Lagman, the constitutionality of Proclamation No. 216 was the primary issue raised
before Us. We held that the Proclamation was constitutional as the President had
sufficient factual basis in declaring martial law and suspending the privilege of the writ
of habeas corpus in Mindanao. We found that based on the facts known to the
President and the events that transpired before and at the time he issued the
Proclamation, he had probable cause to believe that a rebellion was or is being
committed, and reasonable basis to conclude that public safety was endangered by the
widespread atrocities perpetrated by the rebel groups.

In contrast, the consolidated petitions at hand essentially assail the Congress' act of
approving the President's December 8, 2017 request and extending the declaration of
martial law in Mindanao from January 1 to December 31, 2018. In support of their case,
petitioners argue that rebellion no longer persists in Mindanao and that public safety is
not endangered by the existence of mere "remnants" of the Maute group, ASG,
DAESH-inspired DIWM members.

Although there are similarities in the arguments of petitioners in the earlier Lagman case
and the petitions at bar, We do not find that petitioners are seeking to re-litigate a matter
already settled in the Lagman case with respect to the existence of rebellion. A reading
of the consolidated petitions reveals that petitioners do not contest the existence of
violence committed by various armed groups in Mindanao, to wit:

LAGMAN PETITION (G.R. No. 235935)

43. It is very unfortunate that in their contrived efforts to justify the extension of martial
law in Mindanao, President Duterte and his military and police advisers with the support
of partisans in the Congress have molded the so-called remnants or residue, miniscule
as they are, into apparent menacing ogres.

x x x x

53. A litany of alleged "skirmishes" does not necessarily constitute armed public uprising
against the government.
54. They may only indicate banditry, lawless violence and terroristic acts of remnants or
residure of vanquished combatants.
CULLAMAT PETITION (G.R. No. 236061)
58. The question now therefore is, the instant case, does the actual rebellion being
perpetrated by the armed groups enumerated in the 08 December 2017 letter of President
Duterte to the House of Representatives and the Senate, compromise public safety that
would warrant the imposition of martial law?
ROSALES PETITION (G.R. No. 236145)
67. In short, the bases (for the extension of martial law in Mindanao) were: first, the
supposed continuous rebuilding of the remaining members of the Daesh-inspired DIWM,
who are "in all probability, ... presently regrouping and consolidating their forces" or are,
at the very least, continuing their efforts and activities "geared towards the conduct of
intensified atrocities and armed public uprisings"; second, the supposed "plan" by
members of the Turaifie group to conduct bombings; third, the supposed continuing acts
of violence of the Bangsamoro Islamic Freedom Fighters; fourth, the continuous
commission of acts of terrorism by members of the Abu Sayaff Group; and fifth, the
intensification of the "decades-long rebellion" by the New People's Army (NPA).

68. With all due respect, and without diminishing the threat posed by any of the foregoing,
none of these constitute actual rebellion or actual invasion. Moreover, it mistakes the
distinction between the need for military force which is effected through the use of the
calling out powers of the President, on one hand, and the need for imposing martial law
on the civilian population, on the other.

69. Since the five (5) identified groups were/are in the "regrouping", "[consolidation] of
forces", "recruitment", "planning" stages, or are continuing the commission of crimes
(terrorism, robbery, murder, extortion) without any of the four (4) objectives that comprise
the second element of rebellion, there cannot be said to be a "theater of war" already
contemplated by the framers of the Constitution as would cripple the normal operation of
civilian law.
MONSOD PETITION (G.R. No. 236155)
72. There is no indication that "public safety requires" the further imposition of martial law.
The instances cited as justification for the extension requested do not demonstrate gravity
such that ordinary powers and resources of the government cannot address these. What
Marawi needs at this point is effective and responsive rehabilitation in an atmosphere of
freedom and cooperation. It does not need martial law to rise from the ashes of war and
turmoil.

73. At most, these incidents show several protracted incidents of violence and
lawlessness that is well within the powers and authority of the government armed forces
and police force to suppress without resort to extraordinary powers, which the
government has been continuously doing for decades as well. Martial law is neither a
commensurate measure to address these incidents, nor preventive measure to thwart the
spread of lawless violence in the country. The mere invocation, therefore, of rebellion or
invasion, will not be the sufficient factual basis for the declaration of martial law or the
suspension of the privilege of the writ of habeas corpus if it cannot be factually
demonstrated that it is actually happening and necessitated by the requirements of public
safety in a theater of war.
From the foregoing, it appears that petitioners merely question the gravity and extent of
these occurrences as to necessitate the continued implementation of martial law in
Mindanao. In other words, the issue put forth by petitioners in the earlier Lagman case,
which this Court already settled, refers to the existence of a state of rebellion which
would trigger the President's initial declaration of martial law, whereas the factual issue
in the case at bar refers to the persistence of the same rebellion in Mindanao which
would justify the extension of martial law.

That petitioners are not barred from questioning the alleged persistence of the rebellion
in these consolidated petitions is also supported by the transitory nature of the Court's
judgment on the sufficiency of the factual basis for a declaration of martial law. The
following exchange during the deliberations of the 1986 Constitutional Commission is
instructive:

MR. BENGZON. I would like to ask for clarification from the Committee, and I would like
to address this to Commissioner Bernas.

Suppose there is a variance of decision between the Supreme Court and Congress,
whose decision shall prevail?

FR. BERNAS. The Supreme Court's decision prevails.

MR. BENGZON. If Congress, decides to recall before the Supreme Court issues its
decision, does the case become moot?

FR. BERNAS. Yes, Madam President.

MR. BENGZON. And if the Supreme Court promulgates its decision ahead of Congress,
Congress is foreclosed because the Supreme Court has 30 days within which to look into
the factual basis. If the Supreme Court comes out with the decision one way or the other
without Congress having acted on the matter, is Congress foreclosed?

FR. BERNAS. The decision of the Supreme Court will be based on its assessment
of the factual situation. Necessarily, therefore, the judgment of the Supreme Court
on that is a transitory judgment because the factual situation can change. So, while
the decision of the Supreme Court may be valid at that certain point of time, the situation
may change so that Congress should be authorized to do something about it.

MR. BENGZON. Does the Gentleman mean the decision of the Supreme Court then
would just be something transitory?

FR. BERNAS. Precisely.

MR. BENGZON. It does not mean that if the Supreme Court revokes or decides against
the declaration of martial law, the Congress can no longer say, "no, we want martial
law to continue" because the circumstances can change.

FR. BERNAS. The Congress can still come in because the factual situation can change.
Verily, the Court's review in martial law cases is largely dependent on the existing
factual scenario used as basis for its imposition or extension. The gravity and scope of
rebellion or invasion, as the case may be, should necessarily be re-examined, in order
to make a justiciable determination on whether rebellion persists in Mindanao as to
justify an extension of a state of martial law.

The Court's power to review the extension of martial law is limited solely to the
determination of the sufficiency of the factual basis thereof.

Section 1, Article VIII of the Constitution pertains to the Court's judicial power to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The first part is to be known as the traditional concept of judicial power while the latter
part, an innovation of the 1987 Constitution, became known as the court's expanded
jurisdiction. Under its expanded jurisdiction, courts can now delve into acts of any
branch or instrumentality of the Government traditionally considered as political if such
act was tainted with grave abuse of discretion.

In seeking the Court's review of the extension of Proclamation No. 216 on the strength
of the third paragraph of Section 18, Article VII of the Constitution, petitioners in G.R.
No. 235935 alternately invoke the Court's expanded (certiorari) jurisdiction under
Section 1, Article VIII.

In Lagman,92 We emphasized that this Court's jurisdiction under the third paragraph of
Section 18, Article VII is special and specific, different from those enumerated in
Sections 193 and 594 of Article VIII. It was further stressed therein that the standard of
review in a petition for certiorari is whether the respondent has committed any grave
abuse of discretion amounting to lack or excess of jurisdiction in the performance of his
or her functions, whereas under Section 18, Article VII, the Court is tasked to review the
sufficiency of the factual basis of the President's exercise of emergency powers. Hence,
the Court concluded that a petition for certiorari pursuant to Section 1 or Section 5 of
Article VIII is not the proper tool to review the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus. We held that to apply the standard of review in a petition for certiorari will
emasculate the Court's constitutional task under Section 18, Article VII, which was
precisely meant to provide an additional safeguard against possible martial law abuse
and limit the extent of the powers of the Commander-in-Chief.

With regard to the extension of the proclamation of martial law or the suspension of the
privilege of the writ, the same special and specific jurisdiction is vested in the Court to
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis thereof. Necessarily, and by parity of reasoning, a certiorari petition invoking the
Court's expanded jurisdiction is not the proper remedy to review the sufficiency of the
factual basis of the Congress' extension of the proclamation of martial law or
suspension of the privilege of the writ.

Furthermore, as in the case of the Court's review of the President's proclamation of

martial law or suspension of the privilege of the writ, the Court's judicial review of the
Congress' extension of such proclamation or suspension is limited only to a
determination of the sufficiency of the factual basis thereof. By its plain language, the
Constitution provides such scope of review in the exercise of the Court's sui
generis authority under Section 18, Article VII, which is principally aimed at balancing
(or curtailing) the power vested by the Constitution in the Congress to determine
whether to extend such proclamation or suspension.

Substantive Issues

Congressional check on the exercise of martial law and suspension powers

Under the 193595 and 197396 Constitutions, the Congress had no power to review or
limit the Executive's exercise of the authority to declare martial law or to suspend the
privilege of the writ of habeas corpus. Borne of the country's martial law experience
under the Marcos regime, such power was subsequently established in the 1987
Constitution as part of a system of checks and balance designed to forestall any
potential abuse of an extraordinary power lodged in the President as Commander-in-
Chief of the country's armed forces.

The 1987 Constitution grants the Congress the power to shorten or extend the
President's proclamation of martial law or suspension of the privilege of the writ
of habeas corpus. Section 18, Article VII of the 1987 Constitution, in pertinent part,
states:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless 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.
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.
(Emphasis ours)
Congressional check on the President's martial law and suspension powers thus
consists of:

First. The power to review the President's proclamation of martial law or suspension of
the privilege of the writ of habeas corpus, and to revoke such proclamation or suspension.
The review is "automatic in the sense that it may be activated by Congress itself at any
time after the proclamation or suspension is made."97 The Congress' decision to revoke
the proclamation or suspension cannot be set aside by the President.

Second. The power to approve any extension of the proclamation or suspension, upon
the President's initiative, for such period as it may determine, if the invasion or rebellion
persists and public safety requires it.
Joint executive and legislative act

When approved by the Congress, the extension of the proclamation or suspension, as

described during the deliberations on the 1987 Constitution, becomes a "joint executive
and legislative act" or a "collective judgment" between the President and the Congress:

THE PRESIDENT. Commissioner Azcuna is recognized.

MR. AZCUNA. Thank you, Madam President.

I would like to offer an amendment to Section 15, line 7 of page 7. After the word "or,"
insert a comma (,) and add the phrase: AT THE INSTANCE OF THE PRESIDENT, so
that the amended portion will read: "may revoke such proclamation or suspension which
revocation shall not be set aside by the President, or AT THE INSTANCE OF THE
PRESIDENT extend the same if the invasion or rebellion shall persist and public safety
requires it.

May we know the reaction of the Committee? The reason for this Madam President, is
that the extension should not merely be an act of Congress but should be requested by
the President. Any extension of martial law or suspension of the privilege of the writ
of habeas corpus should have the concurrence of both the President and Congress. Does
the Committee accept my amendment?

MR. REGALADO. The Committee accepts that amendment because it will, at the same
time solve the concern of Commissioner Suarez, aside from the fact that this will now be
a joint executive and legislative act.

x x x x

MR. OPLE. May I just pose a question to the Committee in connection with the Suarez
amendment? Earlier Commissioner Regalado said that that [sic] point was going to be
a collective judgment between the President and the Congress. Are we departing from
that now in favor of giving Congress the plenipotentiary power to determine the period?

FR. BERNAS. Not really, Madam President, because Congress would be doing this in
consultation with the President, and the President would be outvoted by about 300
Members.

MR. OPLE. Yes, but still the idea is to preserve the principle of collective judgment of
that point upon the expiration of the 60 days when, upon his own initiative, the President
seeks for an extension of the proclamation of martial law or the suspension of the privilege
of the writ.

FR. BERNAS. Yes, the participation of the President is there but by giving the final
decision to Congress, we are also preserving the idea that the President may not revoke
what Congress has decided upon.98 (Emphasis ours)
At the core of the instant petitions is a challenge to the "joint executive and legislative
act," embodied in the President's December 8, 2017 initiative and in the latter's
Resolution of Both Houses No. 4, which further extended the implementation of martial
law and the suspension of the privilege of the writ of habeas corpus in the entire
Mindanao for one year, from January 1 to December 31, 2018. Petitioners assail not
only the sufficiency of the factual basis of this extension, but also the manner in which it
was approved.

The manner in which Congress deliberated on the President's request for

extension is not subject to judicial review

Petitioners question the manner that the Congress approved the extension of martial
law in Mindanao and characterized the same as done with undue haste. Petitioners
premised their argument on the fact that the Joint Rules adopted by both Houses, in
regard to the President's request for further extension, provided for an inordinately short
period for interpellation of resource persons and for explanation by each Member after
the voting is concluded.

The assailed provisions refer to Section 7 of Rule V and Section 14 of Rule VIII of the
Rules of the Joint Session of Congress on the Call of the President to Further Extend
the Period of Proclamation No. 216, Series of 2017, which provide:

Rule V (CONSIDERATION OF THE LETTER OF THE PRESIDENT DATED

DECEMBER 9, 2017 CALLING UPON THE CONGRESS OF THE PHILIPPINES TO
FURTHER EXTEND THE PROCLAMATION OF MARTIAL LAW AND THE
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE
WHOLE OF MINDANAO FOR A PERIOD OF ONE YEAR, FROM 01 JANUARY 2018
TO 31 DECEMBER 2018, OR FOR SUCH OTHER PERIOD OF TIME AS THE
CONGRESS MAY DETERMINE, IN ACCORDANCE WITH SECTION 18, ARTICLE VII
OF THE 1987 CONSTITUTION)
Section 7. Any Member of the Congress may interpellate the resource persons for not
more than three minutes excluding the time of the answer of the resource persons.

xxxx
Rule VIII (VOTING ON THE MOTION TO FURTHER EXTEND THE PERIOD OF THE
PROCLAMATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE
OF THE WRIT OF HABEAS CORPUS)
Section 14. After the conclusion of voting, the Senate President and the Speaker of the
House shall forthwith announce the results of the voting. Thereafter, any Member of the
Congress who wishes to explain his/her vote may consume a maximum of one (1)
minute: Provided, that a Member who does not want to explain may yield his/her allotted
time to another Member of the same House: Provided, further, that any Member of the
Congress shall be allowed a maximum of three (3) minutes.
No less than the Constitution, under Section 16 of Article VI, grants the Congress the
right to promulgate its own rules to govern its proceedings, to wit:

Section 16. (3) ) Each House may determine the rules of its proceedings, punish its
Members for disorderly behavior, and, with the concurrence of two-thirds of all its
Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days. (Emphasis ours)
In Pimentel, Jr., et. al. v. Senate Committee of the Whole,99 this constitutionally-vested
authority is recognized as a grant of full discretionary authority to each House of
Congress in the formulation, adoption and promulgation of its own rules. As such, the
exercise of this power is generally exempt from judicial supervision and interference,
except on a clear showing of such arbitrary and improvident use of the power as will
constitute a denial of due process.

This freedom from judicial interference was explained in the 1997 case of Arroyo v. De
Venecia,100 wherein the Court declared that:

But the cases, both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress failed
to comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.101
In other words, the Court cannot review the rules promulgated by Congress in the
absence of any constitutional violation. Petitioners have not shown that the above-
quoted rules of the Joint Session violated any provision or right under the Constitution.

Construing the full discretionary power granted to the Congress in promulgating its
rules, the Court, in the case of Spouses Dela Paz (Ret.) v. Senate Committee on
Foreign Relations, et al.102 explained that the limitation of this unrestricted power deals
only with the imperatives of quorum, voting and publication. It should be added that
there must be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained.103

The rules in question do not pertain to quorum, voting or publication. Furthermore,

deliberations on extending martial law certainly cannot be equated to the consideration
of regular or ordinary legislation. The Congress may consider such matter as urgent as
to necessitate swift action, or it may take its time investigating the factual situation. This
Court cannot engage in undue speculation that members of Congress did not review
and study the President's request based on a bare allegation that the time allotted for
deliberation was too short.104

Legislative rules, unlike statutory laws, do not have the imprints of permanence and
obligatoriness during their effectivity. In fact, they may be revoked, modified or waived
at the pleasure of the body adopting them. Being merely matters of procedure, their
observance are of no concern to the courts.105 Absent a showing of "violation of a
constitutional provision or the rights of private individuals," the Court will not intrude into
this legislative realm. Constitutional respect and a becoming regard for the sovereign
acts of a coequal branch prevents the Court from prying into the internal workings of the
Congress.106

Furthermore, it has not escaped this Court's attention that the rules that governed the
Joint Session were in fact adopted, without objection, by both Houses of Congress on
December 13, 2017.107 So also, the Transcript of the Plenary Proceedings of the Joint
Session showed that Members of Congress were, upon request, granted extension of
their time to interpellate.

Congress has the power to extend and determine the period of martial law and
the suspension of the privilege of the writ of habeas corpus

Section 18, Article VII of the 1987 Constitution provides:

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless 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.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without any need of a
call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis 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 the 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. (Emphasis
ours)
The provision is indisputably silent as to how many times the Congress, upon the
initiative of the President, may extend the proclamation of martial law or the suspension
of the privilege of habeas corpus. Such silence, however, should not be construed as a
vacuum, flaw or deficiency in the provision. While it does not specify the number of
times that the Congress is allowed to approve an extension of martial law or the
suspension of the privilege of the writ of habeas corpus, Section 18, Article VII is clear
that the only limitations to the exercise of the congressional authority to extend such
proclamation or suspension are that the extension should be upon the President's
initiative; that it should be grounded on the persistence of the invasion or rebellion and
the demands of public safety; and that it is subject to the Court's review of the
sufficiency of its factual basis upon the petition of any citizen.

A cardinal rule in statutorv construction is that when the law is clear and free from any
doubt or ambiguity, there is no room for construction or interpretation, but only for
application.108 Thus, whenever there is a determination that the invasion or rebellion
persists and public safety requires the extension of martial law or of the suspension of
the privilege of the writ, the Congress may exercise its authority to grant such extension
as may be requested by the President, even if it be subsequent to the initial extension.

Section 18, Article VII did not also fix the period of the extension of the proclamation
and suspension. However, it clearly gave the Congress the authority to decide on its
duration; thus, the provision states that that the extension shall be "for a period to be
determined by the Congress." If it were the intention of the framers of the Constitution
to limit the extension to sixty (60) days, as petitioners in G.R. No. 235935 theorize, they
would not have expressly vested in the Congress the power to fix its duration.

The Court cannot accept said petitioners' argument that the 60-day limit can be
deduced from the following clause in Section 18, Article VII: "the Congress may, in the
same manner, extend such proclamation or suspension." The word "manner" means a
way a thing is done109 or a mode of procedure;110 it does not refer to a period or length
of time. Thus, the clause should be understood to mean that the Congress must
observe the same manner of voting required for the revocation of the initial proclamation
or suspension, as mentioned in the sentence preceding it, i.e. "voting jointly, by a vote
of at least a majority of all its Members in regular or special session." This is clear from
the records of the 1986 Constitutional Commission:

MR. REGALADO. x x x

So I will repeat from line 26: "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, CONGRESS MAY extend SUCH PROCLAMATION for a period to be
determined by Congress..."

MR. AZCUNA. Madam President.

THE PRESIDENT. Commissioner Azcuna is recognized.

MR. AZCUNA. May I suggest the insertion of the words CONGRESS MAY IN THE SAME
MANNER, so as to emphasize that will also be Congress voting jointly and there
would also be a need of at least majority vote of all its Members for extension.

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Yes, the amendment is accepted it makes the provision

clearer.111 (Emphasis ours)
United States Supreme Court Justice Antonin Scalia, in his book entitled "Reading the
Law: The Interpretation of Legal Texts,"112 succinctly explained the dangers of
construction that departs from the text of a statute, particularly as to the allocation of
powers among the branches of government. He stated:

Some judges, however, refuse to yield the ancient judicial prerogative of making the law,
improvising on the text to produce what they deem socially desirable results-usually at
the behest of an advocate for one party to a dispute. The judges are also prodded by
interpretative theorists who avow that courts are "better able to discern and articulate
basic national ideals than are the people's politically responsible representatives". On this
view, judges are to improvise "basic national ideals of individual liberty and fair treatment,
even when the content of these ideals is not expressed as a matter of positive law in the
written Constitution."

To the extent that people give this view any credence, the notion that judges may (even
should) improvise on constitutional and statutory text enfeebles the democratic polity. As
Justice John Marshall Harlan warned in the 1960s, an invitation to judicial lawmaking
results inevitably in "a lessening, on the one hand, of judicial independence and, on
the other, of legislative responsibility, thus polluting the bloodstream of our system
of government." Why these alarming outcomes? First, when judges fashion law rather
than fairly derive it from governing texts, they subject themselves to intensified political
pressures - in the appointment process, in their retention, and in the arguments made to
them. Second, every time a court constitutionalizes a new sliver of law - as by finding a
"new constitutional right" to do this, that, or the other - that sliver becomes thenceforth
untouchable by the political branches. In the American system, a legislature has no power
to abridge a right that has been authoritatively held to be part of the Constitution - even if
that newfound right does not appear in the text. Over the past 50 years especially, we
have seen the judiciary incrementally take control of larger and larger swaths of territory
that ought to be settled legislatively.

It used to be said that judges do not "make" law - they simply apply it. In the 20th century,
the legal realists convinced everyone that judges do indeed make law. To the extent that
this was true, it was knowledge that the wise already possessed and the foolish could not
be trusted with. It was true, that is, that judges did not really "find" the common law but
invented it over time. Yet this notion has been stretched into a belief that judges "make"
law through judicial interpretation of democratically enacted statutes. Consider the
following statement by John P. Dawson, intended to apply to statutory law:
It seems to us inescapable that judges should have a part in creating law creating it as
they apply it. In deciding the multifarious disputes that are brought before them, we
believe that judges in any legal system invariably adapt legal doctrines to new situations
and thus give them new content.
Now it is true that in a system such as ours, in which judicial decisions have a stare
decisis effect, a court's application of a statute to a "new situation" can be said to establish
the law applicable to that situation that is, to pronounce definitively whether and how the
statute applies to that situation. But establishing this retail application of the statute is
probably not what Dawson meant by "creating law," "adapting legal doctrines," and "giving
them new content." Yet beyond that retail application, good judges dealing with statutes
do not make law. They do not "give new content" to the statute, but merely apply the
content that has been there all along, awaiting application to myriad factual scenarios. To
say that they "make law" without this necessary qualification is to invite the taffy-like
stretching of words - or the ignoring of words altogether. (Emphasis ours)
Even on the assumption that there is a gap in our Constitution anent the frequency and
period of the Congress' extension, and there is a need for this Court to exercise its
power to interpret the law, We undertake the same in such a way as to reflect the will of
the drafters of the Constitution. "While We may not read into the law a purpose that is
not there, We nevertheless have the right to read out of it the reason for its
enactment."113 We refer thus to the Constitutional Commission's deliberations on the
matter, viz:

MR. SUAREZ. Thank you, Madam President. I concur with the proposal of Commissioner
Azcuna but may I suggest that we fix a period for the duration of the extension,
because it could very well happen that the initial period may be shorter than the extended
period and it could extend indefinitely. So if Commissioner Azcuna could put a certain
limit to the extended period, I would certainly appreciate that, Madam President.

x x x x
MR. SUAREZ. Thank you Madam President. May we suggest that on line 7, between
the words "same" and "if", we insert the phrase FOR A PERIOD OF NOT MORE
THAN SIXTY DAYS, which would equal the initial period for the first declaration just
so it will keep going.

THE PRESIDENT. What does the Committee say?

MR. REGALADO. May we request a clarification from Commissioner Suarez on this

proposed amendment? This extension is already a joint act upon the initiative of the
President and with the concurrence of the Congress. It is assumed that they have already
agreed not only on the fact of extension but on the period of extension. If we put It at 60
days only, then thereafter, they have to meet again to agree jointly on a further
extension.

MR. SUAREZ. That is precisely intended to safeguard the interests and protect the lives
of citizens.

MR. REGALADO. In the first situation where the President declares martial law, there had
to be a prescribed period because there was no initial concurrence requirement. And if
there was no concurrence, the martial law period ends at 60 days. Thereafter, if they
intend to extend the same suspension of the privilege of the writ or the proclamation of
martial law, it is upon the initiative of the President this time, and with the prior
concurrence of Congress. So, the period of extension has already been taken into
account by both the Executive and the Legislative, unlike the first situation where
the President acted alone without prior concurrence. The reason for the limitation
in the first does not apply to the extension.

MR. SUAREZ. We are afraid of a situation that may develop where the extended period
would be even longer than the initial period, Madam President. It is only reasonable to
suggest that we have to put a restriction on the matter of the exercise of this right within
a reasonable period.

MR. REGALADO. Madam President, following that is the clause "extend the same if the
invasion or rebellion shall persist and public safety requires it." That by itself suggests a
period within which the suspension shall be extended, if the invasion is still going on. But
there is already the cut-off 60-day period. Do they have to meet all over again and agree
to extend the same?

MR. SUAREZ. That is correct. I think the two of them must have to agree on the period;
but it is theoretically possible that when the President writes a note to the Congress,
because it would be at the instance of the President that the extension would have to be
granted by Congress, it is possible that the period for the extension may be there. It is
also possible that it may not be there. That is the reason why we want to make it clear
that there must by a reasonable period for the extension. So, if my suggestion is not
acceptable to the Committee, may I request that a voting be held on it Madam President.
FR. BERNAS. Madam President, may I just propose something because I see the
problem. Suppose we were to say: "or extend the same FOR A PERIOD TO BE
DETERMINED BY CONGRESS" - that gives Congress a little flexibility on just how
long the extension should be.

x x x x

THE PRESIDENT. Is that accepted by Commissioner Suarez?

MR. SUAREZ. Yes, Madam President.

MR. OPLE. May I just pose a question to the Committee in connection with the Suarez
amendment? Earlier Commissioner Regalado said that that point was going to be a
collective judgment between the President and the Congress. Are we departing from that
now in favor of giving Congress the plenipotentiary power to determine the period?

FR. BERNAS. Not really, Madam President, because Congress would be doing this in
consultation with the President, and the President would be outvoted by 300 Members.

MR. OPLE. Yes, but still the idea is to preserve the principle of collective judgment of that
point upon the expiration of the 60 days when, upon his own initiative, the President seeks
for an extension of the proclamation of martial law or the suspension of the privilege of
the writ.

FR. BERNAS. Yes, the participation of the President, is that when we put all of these
encumbrances on the President and Commander-in-Chief during an actual invasion and
rebellion, given an intractable Congress that may be dominated by opposition parties, we
may be actually impelling the President to use the sword of Alexander to cut the Gordian
knot by just declaring a revolutionary government that sets him free to deal with the
invasion or the insurrection. That is the reason I am in favor of the present formulation.
However, if Commissioner Suarez insists on his amendment, I do not think I will stand in
the way.

Thank you, Madam President.

MR. SUAREZ. We will accept the committee suggestion, subject to style later on.

x x x x

MR. PADILLA. According to Commissioner Concepcion, our former Chief Justice, the
declaration of martial law or the suspension of the privilege of the writ of habeas corpus is
essentially an executive act. If that be so, and especially under the following clause: "if
the invasion or rebellion shall persist and public safety requires it," I do not see why the
period must be determined by the Congress. We are turning a purely executive act to a
legislative act.
FR. BERNAS. I would believe what the former Chief Justice said about the initiation being
essentially an executive act, but what follows after the initiation is something that is
participated in by Congress.

MR. CONCEPCION. If I may add a word. The one who will do the fighting is the executive
but, of course, it is expected that if the Congress wants to extend, it will extend for the
duration of the fighting. If the fighting goes on, I do not think it is fair to assume that the
Congress will refuse to extend the period, especially since in this matter the Congress
must act at the instance of the executive. He is the one who is supposed to know how
long it will take him to fight. Congress may reduce it, but that is without prejudice to
his asking for another extension, if necessary.114 (Emphasis ours)
Commissioner Jose E. Suarez's proposal to limit the extension to 60 days was not
adopted by the majority of the Commission's members. The framers evidently gave
enough flexibility on the part of the Congress to determine the duration of the extension.
Plain textual reading of Section 18, Article VII and the records of the deliberation of the
Constitutional Commission buttress the view that as regards the frequency and duration
of the extension, the determinative factor is as long as "the invasion or rebellion persists
and public safety requires" such extension.

The President and the Congress had sufficient factual basis to extend
Proclamation No. 216

Section 18, Article VII of the 1987 Constitution requires two factual bases for the
extension of the proclamation of martial law or of the suspension of the privilege of the
writ of habeas corpus: (a) the invasion or rebellion persists; and (b) public safety
requires the extension.

A. Rebellion persists

Rebellion, as applied to the exercise of the President's martial law and suspension
powers, is as defined under Article 134 of the Revised Penal Code,115viz:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection
is committed by rising publicly and taking arms against the Government for the purpose
of removing from the allegiance to said Government or its laws, the territory of the
Philippine Islands or any part thereof, of any body of land, naval or other armed forces,
depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers
or prerogatives.
Rebellion thus exists when "(1) there is a (a) public uprising and (b) taking arms against
the Government; and (2) the purpose of the uprising or movement is either (a) to
remove from the allegiance to the Government or its laws: (i) the territory of the
Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers
and prerogatives."116

The President issued Proclamation No. 216 in response to the series of attacks
launched by the Maute Group and other rebel groups in Marawi City. The President
reported to the Congress that these groups had publicly taken up arms for the purpose
of removing Mindanao from its allegiance to the Government and its laws and
establishing a DAESH/ISIS wilayat or province in Mindanao.

In Lagman,117 the Court sustained the constitutionality of Proclamation No. 216, holding
that the President had probable cause to believe that actual rebellion exists and public
safety required the Proclamation. The Court held:

A review of the aforesaid facts similarly leads the Court to conclude that the President, in
issuing Proclamation No. 216, had sufficient factual bases tending to show that actual
rebellion exists. The President's conclusion, that there was an armed public uprising, the
culpable purpose of which was the removal from the allegiance of the Philippine
Government a portion of its territory and the deprivation of the President from performing
his powers and prerogatives, was reached after a tactical consideration of the facts. In
fine, the President satisfactorily discharged his burden of proof.

After all, what the President needs to satisfy is only the standard of probable cause for a
valid declaration of martial law and suspension of the privilege of the writ of habeas
corpus. x x x
On July 22, 2017, upon the President's initiative, Congress extended Proclamation No.
216 until December 31, 2017.

The ensuing question, therefore, is whether the rebellion persists as to satisfy the first
condition for the extension of martial law or of the suspension of the privilege of the writ
of habeas corpus.

The word "persist" means "to continue to exist," "to go on resolutely or stubbornly in
spite of opposition, importunity or warning," or to "carry on." 118 It is the opposite of the
words "cease," "discontinue," "end," "expire," "finish," "quit," "stop" and "terminate."119

The reasons cited by the President in his request for further extension indicate that the
rebellion, which caused him to issue Proclamation No. 216, continues to exist and its
"remnants" have been resolute in establishing a DAESH/ISIS territory in Mindanao,
carrying on through the recruitment and training of new members, financial and
logistical build-up, consolidation of forces and continued attacks. Thus, in his December
8, 2017 letter to Congress, the President stated:

First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups
have continued to rebuild their organization through the recruitment and training of new
members and fighters to carry on the rebellion. You will please note that at least one
hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained
at-large and, in all probability, are presently regrouping and consolidating their forces.

More specifically, the remnants of DAESH-inspired DIWM members and their allies,
together with their protectors, supporters and sympathizers, have been monitored in their
continued efforts towards radicalization/recruitment, financial and logistical build-up, as
well as in their consolidation/reorganization in Central Mindanao, particularly in the
provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These
activities are geared towards the conduct of intensified atrocities and armed public
uprisings in support of their objective of establishing the foundation of a global
Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole
of Southeast Asia.

x x x x

Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi and
Zamboanga Peninsula remain as a serious security concern. Reports indicate that this
year they have conducted at least forty-three (43) acts of terrorism, including attacks
using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have
resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly
beheaded.120 (Emphasis ours)
In recommending the one-year extension of Proclamation No. 216 to the President, AFP
General Guerrero cited, among others, the continued armed resistance of the DAESH-
inspired DIWM and their allies, thus:

1. The DAESH-Inspired DIWM groups and allies continue to visibly offer armed
resistance in other parts of Central, Western and Eastern Mindanao in spite of the
neutralization of their key leaders and destruction of their forces in Marawi
City;121 (Emphasis ours)
The data presented by the AFP during the oral arguments bolstered the President's
cause for extension and clarified what the government remains up against in the
aftermath of the Marawi crisis. According to the AFP:

The Dawlah Islamiyah is the Daesh-affiliate organization in the Philippines responsible

for the Marawi Siege. It is comprised of several local terrorist groups that pledged
allegiance to Daesh leader Abu Bakr AlBaghdadi.

xxxx

After the successful Marawi Operation, the Basilan-based ASG is left with 74 members;
the Maute Group with 30 members; the Maguid Group has 11; and the Turaifie Group
has 22 members with a total of 166 firearms.

However, manpower increased by more or less 400, with almost the same strength that
initially stormed Marawi City, through clandestine and decentralized recruitment of the
Daesh-inspired groups at their respective areas of concentration.

ASG Basilan-based recruited more or less 43 new members in Basilan; more or

less 250 by the Maute Group in the Lanao provinces; 37 by the Maguid Group in
Sarangani and Sultan Kudarat, and more or less 70 by the Turaifie Group in
Maguindanao. These newly recruited personalities were motivated by clannish culture as
they are relatives of terrorist personalities; revenge for their killed relatives/parents during
the Marawi operations; financial gain as new recruits were given an amount ranging
from PhP15,000.00 to 50,000.00; and, as radicalized converts.

These newly recruited members are undergoing trainings in tactics, marksmanships and
bombing operations at the different areas of Mount Cararao Complex, Butig, and Piagapo
all of Lanao Del Sur. Recruits with high potentials [sic] were given instruction on IED-
making and urban operations.

Furthermore, the situation has become complicated with the influx of Foreign Terrorist
Fighters (FTFs), capitalizing on the porous maritime boundaries in Southern Philippines,
in the guise as tourists and business men. As of this period, 48 FTFs were monitored
joining the Daesh-inspired groups, particularly the Maute Group in Lanao and Turaifie
Group in Central Mindanao. The closeness of these two groups is predominant
with @Abu DAR who has historically established link with Turaifie.

On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2nd
Semester.122 (Emphasis ours)
The AFP's data also showed that Foreign Terrorist Fighters (FTFs) are now acting as
instructors to the new members of the Dawlah Islamiyah.123

These accounts ineluctably show that the rebellion that spawned the Marawi crisis
persists, and that its remaining members have regrouped, substantially increased in
number, and are no less determined to turn Mindanao into a DAESH/ISIS territory.

Petitioners in G.R. No. 235935 argue that "remnants" or a residue of a rebel group
cmmot possibly mount a rebellion. The argument, however, fails to take into account the
185 persons identified in the Martial Law Arrest Orders who are still at large; the 400
new members whom said remnants were able to recruit; the influx of 48 FTFs who are
training the new recruits in their ways of terrorism; and the financial and logistical build-
up which the group is cunently undertaking with their sympathizers and protectors. It
likewise fails to consider that the new Dawlah Islamiyah members number nearly the
same as the group that initially stormed Marawi City, and while the government
succeeded in vanquishing 1,010 rebels following the siege,124 it took several months to
accomplish this even under martial law. Thus, it will be imprudent nay reckless to
downplay or dismiss the capacity of said remnants to relentlessly pursue their objective
of establishing a seat of DAESH/ISIS power in Mindanao.

Petitioners in G.R. Nos. 236061 and 236155 have asserted that the rebellion no longer
persists as the President himself had announced the liberation of Marawi City, and
armed combat has ceased therein. Petitioners in G.R. No. 236061 added that Col.
Romeo Brawner, Deputy Commander of the Joint Task Force Ranao, was also quoted
as saying that the Maute-ISIS problem was about to be over. The statements, however,
were admittedly made on October 17, 2017,125 nearly two months before the President's
request for extension in December 2017. Such declaration does not preclude the
occurrence of supervening events as the AFP discovered through their
monitoring126 efforts. It is not inconceivable that remnants of the Dawlah Islamiyah
would indeed regroup, recruit new members and build up its arsenal during the
intervening period. The termination of a rebellion is a matter of fact. Rebellion does not
cease to exist by estoppel on account of the President's or the AFP's previous
pronouncements. Furthermore, it is settled that rebellion is in the nature of a continuing
crime.127 Thus, members of the Dawlah Islamiyah who evaded capture did not cease to
be rebels.

So also, it does not necessarily follow that with the liberation of Marawi, the
DAESH/ISIS-inspired rebellion no longer exists. Secretary Lorenzana, during the
Congress' Joint Session on December 13, 2017, explained that while the situation in
Marawi has substantially changed, the rebellion has not ceased but simply moved to
other places in Mindanao, thus:

Senator Drilon. Meaning, the question that we raised, Mr. President, are the declarations
of the President, His Excellency, and the secretary of national defense changed since the
time that the situation was described on October 23 of this year? Has the situation
changed or is it the same situation today that the Marawi City has been liberated from
terrorists [sic] influence that there has been a termination of combat operations in Marawi
City?

Hon. Lorenzana. May I answer that, Mr. President. Mr. President, the situation in Marawi
has substantially changed from the time that our troops were fighting the ISIS-inspired
Maute Group and that's the reason why there is now this post-conflict need assessment
as being conducted in Marawi. However, as situations developed later on, the ISIS-
inspired other groups in Mindanao are also active like the BIFF in Central Mindanao and
also in some other parts of the BaSulTa islands.

Now, the reports now, Mr. President, is that they are actively recruiting again, recruiting
actively, recruiting some of the Muslim youths in the area and that is what we are saying
that the rebellion has not stopped. It just moved to another place.

x x x x

Representative Tinio. x x x

Mr. Speaker, hindi po ba sinabi ni Presidente sa kanyang sulat that the AFP has achieved
remarkable progress in putting the rebellion under control at hindi po ba sinabi
ni Executive Secretary na substantially neutralized na raw and Maute-Daesh? Pwede po
bang ipaliwanag ito ng mga resource persons?

The Speaker. The panel may respond.

Hon. Lorenzana. Mr. President, ang sagot po doon sa G. Congressman ay ganito - ang
sinasabi po naming substantially reduced na iyong strength or clear na iyong Marawi of
any terrorists ay Marawi lang po iyon. It does not include the whole of, the other
parts of Mindanao that are also subject to the influence of these terroristic
groups. Sabi nga ng Supreme Court ay, ang nangyayari sa Marawi ay nag-spill over na
rin sa ibang Iugar doon sa Mindanao kaya nga sinustain nila iyong declaration ng Martial
Law.

x x x x128 (Emphasis ours)

In Lagman, We recognized that "rebellion is not confined within predetermined bounds,"
and "for the crime of rebellion to be consummated, it is not required that all armed
participants should congregate in one place x x x and publicly rise in arms against the
government for the attainment of their culpable purpose." We held that the grounds on
which the armed public uprising actually took place should not be the measure of the
extent, scope or range of the actual rebellion when there are other rebels positioned
elsewhere, whose participation did not necessarily involve the publicity aspect of
rebellion, as they may also be considered as engaged in the crime of rebellion.

In a similar vein, the termination of armed combat in Marawi does not conclusively
indicate that the rebellion has ceased to exist. It will be a tenuous proposition to confine
rebellion simply to a resounding clash of arms with government forces. As noted
in Aquino, Jr. v. Enrile,129 modern day rebellion has other facets than just the taking up
of arms, including financing, recruitment and propaganda, that may not necessarily be
found or occurring in the place of the armed conflict, thus:

x x x The argument that while armed hostilities go on in several provinces in Mindanao

there are none in other regions except in isolated pockets in Luzon, and that therefore
there is no need to maintain martial law all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modem setting. It does not consist simply of
armed clashes between organized and identifiable groups on fields of their own choosing.
It includes subversion of the most subtle kind, necessarily clandestine and operating
precisely where there is no actual fighting. Underground propaganda, through printed
news sheets or rumors disseminated in whispers; recruitment of armed and ideological
adherents, raising of funds, procurement of arms and material, fifth-column activities
including sabotage and intelligence-all these are part of the rebellion which by their nature
are usually conducted far from the battle fronts. x x x.130
Furthermore, as We explained in Lagman, "(t)he crime of rebellion consists of many
acts. It is a vast movement of men and a complex net of intrigues and plots." Thus:

Acts committed in furtherance of rebellion[,] though crimes in themselves[,] are deemed

absorbed in one single crime of rebellion. Rebellion absorbs "other acts committed in its
pursuance." Direct assault, murder, homicide, arson, robbery, kidnapping just to name a
few, are absorbed in the crime of rebellion if committed in furtherance of rebellion; "[i]t
cannot be made a basis of a separate charge." Jurisprudence also teaches that not only
common crimes may be absorbed in rebellion but also "offenses under special laws [such
as Presidential Decree No. 1829] which are perpetrated in furtherance of the political
offense". "All crimes, whether punishable under a special law or general law, which arc
mere components or ingredients, or committed in furtherance thereof, become absorbed
in the crime of rebellion and cannot be isolated and charged as separate crimes in
themselves." (Citations omitted)
In any case, Secretary Lorenzana has stressed that notwithstanding the termination of
armed combat in Marawi, clashes between the rebels and government forces continue
to take place in other parts of Mindanao. Thus, during an interpellation at the December
13, 2017 Joint Session in Congress, he stated:

Senator Pangilinan. x x x

It would have been a very different situation altogether if the fighting was still ongoing. If
there is stiJl that siege, then we can see that the situation is extreme and therefore, we
can proceed with an extension.

x x x x

Hon. Lorenzana. Mr. President, may I reply to the good senator.

Sir, maybe your perception here is not as bad as what is happening on the ground,
but the troops report otherwise.

You know, wala na sigurong hakbakan diyan sa Marawi, but there are still clashes
almost everyday in other parts of Mindanao. The clash with the BJFF in Central
Mindanao continues almost everyday. Iyong mga engkwentro din sa mga ibang lugar
sa Eastern Mindanao with the CPP-NPA ay nandoon pa rin. Basilan, Jolo ay ongoing pa
rin iyan.

x x x x131 (Emphasis ours)

During the oral arguments, AFP General Guerrero also confirmed that there were
actually armed encounters with the remnants of the DAESH/ISIS-inspired DIWM.132

Accordingly, it would be error to conclude that the rebellion ceased to exist upon the
termination of hostilities in Marawi.

Other rebel groups

The extension has also been challenged on the ground that it did not refer to the same
rebellion under Proclamation No. 216.

It is true that the Bangsamoro Islamic Freedom Fighters (BIFF), the Turaifie Group and
the New People's Army (NPA) were not expressly mentioned either in Proclamation No.
216 or in the President's Report to Congress after he issued the Proclamation.
However, in Lagman, the government clearly identified the BIFF, based in the Liguasan
Marsh, Maguindanao, as one of the four ISIS-linked rebel groups that had formed an
alliance for the unified mission of establishing an ISIS territory in Mindanao, led by ASG-
Basilan leader, Isnilon Hapilon, who had been appointed emir of all ISIS forces in the
Philippines. The other three rebel groups were the ASG from Basilan, Ansarul Khilafah
Philippines (AKP), also known as the Maguid Group, from Saranggani and Sultan
Kudarat, and the Maute Group from Lanao del Sur.
Furthermore, while it named only the Maute Group and the ASG, the President's Report
made express reference to "lawless armed groups" as perpetrators of the Marawi siege
resolved to unseat the duly-constituted government and make Mindanao a DAESH/ISIS
province. The Report also indicated, as additional reasons for the Proclamation, the
"extensive networks or linkages of the Maute Group with foreign and local armed
groups" and the "network and alliance-building activities among terrorist groups, local
criminals, and lawless armed men" in Mindanao.133 Thus, though not specifically
identified in the Proclamation or the President's Report, the BIFF and the Turaifie Group
are deemed to have been similarly alluded to.

Indeed, absolute precision cannot be expected from the President who would have to
act quickly given the urgency of the situation. Under the circumstances, the actual
rebellion and attack, more than the exact identity of all its perpetrators, would be his
utmost concern. The following pronouncement in Lagman, thus, finds relevance:

Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify
the accuracy and veracity of all facts reported to him due to the urgency of the situation.
To require precision in the President's appreciation of facts would unduly burden him and
therefore impede the process of his decision-making. Such a requirement will practically
necessitate the President to be on the ground to confirm the correctness of the reports
submitted to him within a period that only the circumstances obtaining would be able to
dictate. Such a scenario, of course, would not only place the President in peril but would
also defeat the very purpose of the grant of emergency powers upon him, that is, to
borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to
the root cause of the emergency". Possibly, by the time the President is satisfied with the
correctness of the facts in his possession, it would be too late in the day as the invasion
or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.
In the same vein, to require the President to render a meticulous and comprehensive
account in his Proclamation or Report will be most tedious and will unduly encumber his
efforts to immediately quell the rebellion.

The efforts of the Turaifie Group and its allies134 in the ISIS-inspired135 BIFF to wrest
control of Mindanao continued even as the government was able to put the Marawi
crisis under control.

In his December 8, 2017 letter to the Congress, the President stated:

Second, the Turaifie Group has likewise been monitored to be planning to conduct
bombings, notably targeting the Cotabato area. Turaitie is said to be Hapilon 's potential
successor as Amir of DAESH Wilayat in the Philippines and the Southeast Asia. 136
Furthermore, as the AFP reported during the oral arguments, the BIFF "continues to
inflict violence and sow terror in central Mindanao," and as one of the AFP's primary
targets for disbandment, "the group will likely continue its hostile operations in a bid to
retaliate, fight for its relevance and demonstrate its resiliency." 137
The AFP has likewise confirmed that the Turaifie Group is one of several terrorist
groups responsible for the Marawi siege, and that it has so far successfully recruited 70
new members in its unwavering pursuit of a DAESH/ISIS wilayat in Mindanao.

The Court, thus, finds that the government has sufficiently established the persistence
of the DAESH/ISIS rebellion.

The inclusion of the rebellion of the New People's Army (NPA) as basis for the further
extension of martial law in Mindanao will not render it void. Undeniably, the NPA aims to
establish communist rule in the country while the DAESH/ISIS-inspired rebels intend to
make Mindanao the seat of ISIS power in Southeast Asia. It is obvious, however, that
even as they differ in ideology, they have the shared purpose of overthrowing the duly
constituted government. The violence the NPA has continued to commit in Mindanao,
as revealed by the Executive, hardly distinguish its rebels from the architects of the
Marawi siege. Both have needlessly and violently caused the death of military forces
and civilians, and the destruction of public and private property alike. Thus, in his
request for the further extension of Proclamation No 216, the President informed the
Congress that:

Last, but certainly not the least, while the government was preoccupied with addressing
the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups
(LTGs), the New People's Army (NPA) took advantage of the situation and intensified
their decades-long rebellion against the government and stepped up terrorist attacks
against innocent civilians and private entities, as well as guerilla warfare against the
security sector and public government infrastructure, purposely to seize political power
through violent means and supplant the country's democratic form of government
with Communist rule.

This year, the NPA has perpetrated a total of at least three hundred eight-five (385)
atrocities (both terrorism and guerilla warfare) in Mindanao, which resulted in forty-one
(41) Killed-in-Action and sixty-two (62) Wounded-in-Action (WIA) on the part of
government forces. On the part of the civilians, these atrocities resulted in the killing of
twenty-three (23) and the wounding of six (6) persons. The most recent was the ambush
in Talakag, Bukidnon on 09 November 2017, resulting in the killing of one (1) PNP
personnel and the wounding of three (3) others, as well as the killing of a four (4)-month-
old infant and the wounding of two (2) civilians.

Apart from these, at least fifty-nine (59) arson incidents have been carried out by the NPA
in Mindanao this year, targeting businesses and private establishments and destroying
an estimated P2.2 billion-worth of properties. Of these, the most significant were the
attack on Lapanday Food Corporation in Davao City on 09 April 2017 and the burning of
facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City,
Davao Oriental on 06 May 2017, which resulted in the destruction of properties valued at
P1.85 billion and P109 million, respectively.138 (Emphasis ours)
Given the scale of the attacks perpetrated by the communist rebels, it is far from
unreasonable for the President to include their rebellion in his request for the further
extension of martial law in Mindanao. The NPA's "intensified" insurgence clearly bears a
significant impact on the security of Mindanao and the safety of its people, which were
the very reasons for the martial law proclamation and its initial extension.

It will also be noted that when Proclamation No. 216 was issued, the Government and
the NPA were undergoing peace negotiations. Thus, the President could not have
included the NPA's rebellion in the Proclamation even granting he had cause to do so.
The Office of the Solicitor General declared during the oral arguments that because of
the peace negotiations, the NPA was "not explicitly included" as a matter of
comity.139 The Executive's data showed that despite the peace talks, the NPA continued
its hostilities and intensified its tactical offensives, prompting the President to terminate
the peace negotiations on November 23, 2017. In his December 8, 2017 letter to
Congress, the President wrote:

As a direct result of these atrocities on the part of the NPA, I was constrained to issue
Proclamation No. 360 on 23 November 2017 declaring the termination of peace
negotiations with the National Democratic FrontCommunist Party of the Philippines-New
People's Army (NDF-CPP-NPA) effective immediately. I followed this up with
Proclamation No. 374 on 05 December 2017, where I declared the CPP-NPA as a
designated/identified terrorist organization under the Terrorism Financing Prevention and
Suppression Act of 2012, and the issuance of a directive to the Secretary of Justice to file
a petition in the appropriate court praying to proscribe the NDF-CPP-NPA as a terrorist
organization under the Human Security Act of 2007.140
It is readily apparent that the inclusion of the NPA's rebellion in the President's request
for extension was precipitated by these turn of events, as well as the magnitude of the
atrocities attributed to the communist rebels. It would make no sense to exclude or
separate the communist rebellion from the continued operation of martial law in
Mindanao when it also persists in the same region. Thus, the Court finds that the
President's decision to add the NPA's "intensified" insurgence to the DAESH/ISIS
rebellion, as further basis to request for the extension, was not uncalled for.

In any event, seeking the concurrence of the Congress to use martial law to quell the
NPA's rebellion, instead of issuing a new martial law proclamation for the same
purpose, appears to be more in keeping with the Constitution's aim of preventing the
concentration of the martial law power in the President. The extension granted by the
Congress upon the President's request has become a joint action or a "collective
judgment"141 between the Executive and the Legislature, thereby satisfying one of the
fundamental safeguards established under Section 18, Article VII of the 1987
Constitution.

B. Public safety requires the extension

In Lagman, the Court defined "public safety" as follows:

Public safety, which is another component element for the declaration of martial law,
"involves the prevention of and protection from events that could endanger the safety of
the general public from significant danger, injury/harm, or damage, such as crimes
or disasters." Public safety is an abstract term; it does not take any physical form. Plainly,
its range, extent or scope could not be physically measured by metes and bounds.
(Emphasis ours)
The question, therefore, is whether the acts, circumstances and events upon which the
extension was based posed a significant danger, injury or harm to the general public.
The Court answers in the affirmative.

The following events and circumstances, as disclosed by the President, the Defense
Secretary and the AFP, strongly indicate that the continued implementation of martial
law in Mindanao is necessary to protect public safety:

(a) No less than 185 persons in the Martial Law Arrest Orders have remained at large.
Remnants of the Hapilon and Maute groups have been monitored by the AFP to be
reorganizing and consolidating their forces in Central Mindanao, particularly in
Maguindanao, North Cotabato, Sulu and Basilan, and strengthening their financial and
logistical capability.142

(b) After the military operation in Marawi City, the Basilan-based ASG, the Maute
Group, the Maguid Group and the Turaifie Group, comprising the DAESH-affiliate
Dawlah Islamiyah that was responsible for the Marawi siege, was left with 137 members
and a total of 166 firearms. These rebels, however, were able to recruit 400 new
members, more or less, in Basilan, the Lanao Provinces, Sarangani, Sultan Kudarat
and Maguindanao.143

(c) The new recruits have since been trained in marksmanship, bombing and tactics in
different areas in Lanao del Sur. Recruits with great potential are trained in producing
Improvised Explosive Devices (IEDs) and urban operations. These new members are
motivated by their clannish culture, being relatives of terrorists, by revenge for relatives
who perished in the Marawi operations, by money as they are paid P15,000.00 to
P50,000.00, and by radical ideology.144

(d) 48 FTFs have joined said rebel groups and are acting as instructors to the
recruits.145 Foreign terrorists from Southeast Asian countries, particularly from Indonesia
and Malaysia, will continue to take advantage of the porous borders of the Philippines
and enter the country illegally to join the remnants of the DAESH/ISIS-inspired rebel
groups.146

(e)In November 2017, 15 Indonesian and Malaysian DAESH-inspired FTFs entered

Southern Philippines to augment the remnants of the Maguid group in Saragani
province. In December 2017, 16 Indonesian DAESH-inspired FTFs entered the
Southern Philippines to augment the ASG-Basilan and Maute groups in the Lanao
province. In January 2018, an unidentified Egyptian DAESH figure was monitored in the
Philippines.147
(f) At least 32 FTFs were killed in the Marawi operations.148 Other. FTFs attempted to
enter the main battle area in Marawi, but failed because of checkpoints set up by
government forces.149

(g) "The DAESH-inspired DIWM groups and their allies continue to visibly offer armed
resistance in other parts of Central, Western and Eastern Mindanao in spite of the
neutralization of their key leaders and destruction of their forces in Marawi
City."150 There were actually armed encounters with the remnants of said groups. 151

(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-
Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and
violent attacks against vulnerable targets in Mindanao, including the cities of Davao,
Cagayan de Oro, General Santos, Zamboanga and Cotabato."152

(i) The Turaifie group conducts roadside bombings and attacks against government
forces, civilians and populated areas in Mindanao.153 The group. plans to set off
bombings in Cotabato.154

(j) The Maute Group, along with foreign terrorists, were reported to be planning to bomb
the cities of Zamboanga, Iligan, Cagayan de Oro and Davao.155

(k) The remaining members of the ASG-Basilan have initiated five violent attacks that
killed two civilians.156

(l) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and Zamboanga
Peninsula, conducted 43 acts of violence, including IED attacks and kidnapping which
resulted in the killing of eight innocent civilians, three of whom were mercilessly
beheaded.157 Nine kidnap victims are still held in captivity.158

(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-based ASG to
achieve the common goal of establishing a DAESH/ISIS wilayat in Mindanao. This likely
merger may spawn retaliatory attacks such as IED bombings, in urban areas,
particularly in the cities of Zamboanga, Isabela and Lamitan.159

(n) By AFP's assessment, the ISIS' regional leadership may remain in the Southern
Philippines and with the defeat of ISIS in many parts of Syria and Iraq, some hardened
fighters from the ASEAN may return to this region to continue their fight. The AFP also
identified four potential leaders who may replace Hapilon as emir or leader of the ISIS
forces in the Philippines. It warned that the Dawlah Islamiyah will attempt to replicate
the Marawi siege in other cities of Mindanao and may conduct terrorist attacks in Metro
Manila and Davao City as the seat of power of the Philippine Government. With the
spotlight on terrorism shifting from the Middle East to Southeast Asia following the
Marawi siege, the AFP likewise indicated that the influx of FTFs in the Southern
Philippines will persist. The AFP further referred to possible lone-wolf attacks and
atrocities from other DAESH-inspired rebel groups in vulnerable cities like Cagayan de
Oro, Cotabato, Davao, General Santos, Iligan and Zamboanga.160

The rising number of these rebel groups, their training in and predilection to terrorism,
and their resoluteness in wresting control of Mindanao from the government, pose a
serious danger to Mindanao. The country had been witness to these groups' capacity
and resolve to engage in combat with the government forces, resulting in severe
casualties among both soldiers and civilians, the displacement of thousands of Marawi
residents, and considerable damage to their City. In a short period after the Marawi
crisis was put under control, said rebel groups have managed to increase their number
by 400, almost the same strength as the group that initially stormed Marawi. Their
current number is now more than half the 1,010 rebels in Marawi which had taken the
AFP five months to neutralize. To wait until a new battleground is chosen by these rebel
groups before We consider them a significant threat to public safety is neither sound nor
prudent.

(o) Furthermore, in 2017 alone, the BIFF initiated 116 hostile acts in North Cotabato,
Sultan Kudarat and Maguindanao, consisting of ambuscade, firing, arson, IED attacks
and grenade explosions. 66 of these violent incidents were committed during the martial
law period and by the AFP's assessment, the group will continue to inflict violence and
sow terror in central Mindanao.161

(p) In 2017, the ASG, which is the predominant local terrorist group in the Southern
Philippines based in Tawi-Tawi, Sulu, Basilan and Zamboanga, with its 519 members,
503 firearms, 66 controlled barangays and 345 watchlisted personalities, had
perpetrated a total of 13 acts of kidnapping against 37 individuals, 11 of whom
(including 7 foreigners) remain in captivity. Their kidnap-for-ransom activities for last
year alone have amassed a total of P61.2 million.162

(q) Mindanao remains the hotbed of communist rebellion considering that 47% of its
manpower, 48% of its firearms, 51% of its controlled barangays and 45% of its guerrilla
fronts are in this region.163 Of the 14 provinces with active communist insurgency, 10
are in Mindanao. Furthermore, the communist rebels' Komisyon Mindanao (KOMMID) is
now capable of sending augmentation forces, particularly "Party Cadres," in Northern
Luzon.164

(r) The hostilities initiated by the communist rebels have risen by 65% from 2016 to
2017 despite the peace talks.165 In 2017 alone, they perpetrated 422 atrocities in
Mindanao, including ambush, raids, attacks, kidnapping, robbery, bombing, liquidation,
landmine/IED attacks, arson and sabotage, that resulted in the death of 47 government
forces and 31 civilians.166 An ambush in Bukidnon in November 2017 killed one PNP
personnel, two civilians and a four-month old baby. 59 incidents of arson committed by
the Communist rebels against business establishments in Mindanao last year alone
destroyed P2.378 billion worth of properties. Moreover, the amount they extorted from
private individuals and business establishments from 2015 to the first semester of 2017
has been estimated at P2.6 billion.167
(s) Among the most significant attacks by the communist rebels on business
establishments took place in April and May 2017 when they burned the facilities
ofLapanday Food Corporation in Davao City and those of Mil-Oro Mining and Frasec
Ventures Corporation in Mati City, Davao Oriental, which resulted in losses amounting
to P1.85 billion and P109 million, respectively. According to the AFP, business
establishments in the area may be forced to shut down due to persistent NPA attacks
just like in Surigao del Sur.168

(t) By AFP's calculation, the aforesaid rebel groups (excluding the 400 newly recruited
members of the Dawlah Islamiyah) are nearly 2,781-men strong, equipped with 3,211
firearms and control 537 barangays in Mindanao.

The magnitude of the atrocities already perpetrated by these rebel groups reveals their
capacity to continue inflicting serious harm and injury, both to life and property. The
sinister plans of attack, as uncovered by the AFP, confirm this real and imminent threat.
The manpower and armaments these groups possess, the continued radicalization and
recruitment of new rebels, the financial and logistical build-up cited by the President,
and more. importantly, the groups' manifest determination to overthrow the government
through force, violence and terrorism, present a significant danger to public safety.

In Lagman, the Court recognized that the President, as Commander-in-Chief, has

possession of intelligence reports, classified documents and other vital information
which he can rely on to properly assess the actual conditions on the ground, thus:

It is beyond cavil that the President can rely on intelligence reports and classified
documents. "It is for the President as [C]ommander-in-[C]hief of the Armed Forces to
appraise these [classified evidence or documents/]reports and be satisfied that the public
safety demands the suspension of the writ." Significantly, respect to these so-called
classified documents is accorded even "when [the] authors of or witnesses to these
documents may not be revealed."

In fine, not only does the President have a wide array of information before him, he also
has the right, prerogative, and the means to access vital, relevant, and confidential data,
concomitant with his position as Commander-in-Chief of the Armed Forces.
As his December 8, 2017 letter to the Congress would show, the President's request for
further extension had been based on the security assessment of the AFP and the PNP.
Notably, the President also acknowledged that the grounds or "essential facts" cited in
his letter were of his "personal knowledge" as Commander-in-Chief of the armed forces.
The President's request to Congress also referred to the monitoring activities that led to
the Executive's findings, which the AFP confirmed during the January 17, 2018 oral
argument.

According to Executive Secretary Salvador Medialdea, the President made his request
to the Congress after a careful personal evaluation of the reports from the Martial Law
Administrator, Martial Law Implementor, the PNP, the National Security Adviser and the
National Intelligence Coordinating Agency (NICA), as well as information gathered from
local government officials and residents of Mindanao.169

On December 12, 2017, the AFP separately gave the Senate and the House of
Representatives a briefing on the Executive Department's basis for requesting the
further extension of Proclamation No. 216.170

At the Joint Session, of the Congress held on December 13, 2017 Executive Secretary
Salvador Medialdea, Defense Secretary Delfin Lorenzana, AFP General Guerrero, PNP
Chief Ronald Dela Rosa, the head of the NICA, the National Security Adviser, as well as
the Secretaries of the Department of Justice, the Department of Public Works and
Highways, Department of Labor and Employment, Transportation and Communication,
and the Chairman of the Task Force Bangon Marawi, were present and sworn in as
resource persons.171 Secretary Medialdea highlighted to the Congress the reasons cited
by the President in his request, and during the course of the session, he, Secretary
Lorenzana, AFP General Guerrero and Senior Deputy Executive Secretary Menardo
Guevarra responded to interpellations from a number of Senators and Representatives
on the propriety and necessity of further extending martial law in Mindanao.

The Joint Session also provided an occasion for the Representative from the Second
District of Lanao del Sur to confirm the recruitment activities of the "remnants" of the
Maute and Hapilon groups, thus:

Representative Papandayan. x x x

Kami po sa Lanao del Sur, ako ay umuwi last week, aking kinausap ang aking
mga barangay at mga barangay chairman sa aming distrito. Pinahanap ko kung mayroon
pang natitirang remnants o mga kasamahan ng Maute at saka Hapilon. Ang
mga barangay chairman po ay nag-report sa akin na mayroon po at sila po ay nagre-
recruit ngayon, na nag-aalok din sila ng pera sa mga nare-recruit nila.172
Following its deliberation on the request for further extension, the Congress, in joint
session, resolved to further extend Proclamation No. 216 for one year, with 240
members voting for, and 27 against,173 the President's initiative. In approving the
extension, Congress agreed with the factual considerations of the Executive, as can be
gleamed from the 4th and 6thWhereas clauses of Resolution of Both Houses No. 4.

The information upon which the extension of martial law or of the suspension of the
privilege of the writ of habeas corpus shall be based principally emanate from and are in
the possession of the Executive Department. Thus, "the Court will have to rely on the
fact-finding capabilities of the [E]xecutive [D]epartment; in turn, the Executive
Department will have to open its findings to the scrutiny of the Court." 174

The Executive Department did open its findings to the Court when the AFP gave its
"briefing" or "presentation" during the oral arguments, presenting data, which had been
vetted by the NICA, "based on intelligence reports gathered on the ground," from
personalities they were able to capture and residents in affected areas, declassified
official documents, and intelligence obtained by the PNP.175 According to the AFP, the
same presentation, save for updates, was given to the Congress.176 As it stands, the
information thus presented has not been challenged or questioned as regards its
reliability.

The facts as provided by the Executive and considered by Congress amply establish
that rebellion persists in Mindanao and public safety is significantly endangered by it.
The Court, thus, holds that there exists sufficient factual basis for the further extension
sought by the President and approved by the Congress in its Resolution of Both Houses
No. 4.

Necessarily, We do not see the merit to the petitioners' theory in the Cullamat petition
that the extent of threat to public safety as would justify the declaration or extension of
the proclamation of martial law and the suspension of the privilege of the writ must be of
such level that the government cannot sufficiently govern, nor assure public safety or
deliver government services. Petitioners posit that only in this scenario may martial law
be constitutionally permissible.

Restrained caution must be exercised in adopting petitioners' theory for several

reasons. To begin with, a hasty adoption of the suggested scale, level or extent of threat
to public safety is to supplant into the plain text of the Constitution. An interpretation of
the Constitution precedes from the fundamental postulate that the Constitution is the
basic and paramount law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer.177 The consequent duty of the
judiciary then is to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them.178 This must be so considering that the Constitution is
the mother of all laws, sufficient and complete in itself. For the Court to categorically
pronounce which kind of threat to public safety justifies the declaration or extension of
martial law and which ones do not, is to improvise on the text of the Constitution ideals
even when these ideals are not expressed as a matter of positive law in the written
Constitution.179 Such judicial improvisation finds no justification.

For another, if the Court were to be successful in disposing of its bounden duty to
allocate constitutional boundaries, the Constitutional doctrines the Court produces must
necessarily remain steadfast no matter what may be the tides oftime.180 The adoption of
the extreme scenario as the measure of threat to public safety as suggested by
petitioners is to invite doubt as to whether the proclamation of martial law would be at all
effective in such case considering that enemies of the State raise unconventional
methods which change over time. It may happen that by the time government loses all
capability to dispose of its functions, the enemies of the government might have already
been successful in removing allegiance therefrom. Any declaration then of martial law
would be of no useful purpose and such could not be the intent of the Constitution.
Instead, the requirement of public safety as it presently appears in the Constitution
admits of flexibility and discretion on the part of the Congress.

So too, when the President and the Congress ascertain whether public safety requires
the declaration and extension of martial lavv, respectively, they do so by calibrating not
only the present state of public safety but the further repercussions of the actual
rebellion to public safety in the future as well. Thus, as persuasively submitted by Fr.
Bernas in his Amicus Curiae Brief181 in Fortun v. Gloria Macapagal-Arroyo:182

From all these it is submitted that the focus on public safety adds a nuance to the meaning
of rebellion in the Constitution which is not found in the meaning of the same word m
Article 134 of the Penal Code. The concern of the Penal Code, after all, is to punish acts
of the past. But the concern of the Constitution is to counter threat to public safety
both in the present and in the future arising from present and past acts. Such
nuance, it is submitted, gives to the President a degree of flexibility for determining
whether rebellion constitutionally exists as basis for martial law even if facts cannot
obviously satisfy the requirements of the Penal Code whose concern is about past acts.
To require that the President must first convince herself that there can be proof beyond
reasonable douht of the existence of rebellion as defined in the Penal Code and
jurisprudence can severely restrict the President's capacity to safeguard public safety for
the present and the future and can defeat the purpose of the Constitution. (Emphasis
ours)
The requirement of the Constitution is therefore adequately met when there is sufficient
factual basis to hold that the present and past acts constituting the actual rebellion are
of such character that endanger and will endanger public safety. This permissive
approach is sanctioned not only by an acknowledgment that the Congress is and should
be allowed flexibility but also because the Court is without the luxury of time to
determine accuracy and precision.

No necessity to impose tests on the choice and manner of the President's

exercise of military powers

We refuse to be tempted by petitioner Rosales' prodding that We set two tests in

reviewing the constitutionality of a declaration or extension of martial law. In her
memorandum,183 she clarifies the two tests, as follows:

1. Proportionality Test requires that a situation is of such gravity or scale as to demand

resort to the most extreme of measures, i.e. a situation where the ordinary police powers
of the State are no longer sufficient to restore, secure or preserve public safety; and

2. Suitability Test requires that a situation is such that the declaration of martial law is the
correct tool to address safety problem.
It is sufficient to state that this Court already addressed the same argument in Our
decision in Lagman. The determination of which among the Constitutionally given
military powers should be exercised in a given set of factual circumstances is a
prerogative of the President. The Court's power of review, as provided under Section
18, Article VII do not empower the Court to advise, nor dictate its own judgment upon
the President, as to which and how these military powers should be exercised.

Safeguards against abuse

Martial law is a law of necessity. "Necessity creates the conditions for martial law and at
the same time limits the scope of martial law."184 Thus, when the need for which
Proclamation No. 216 was further extended no longer exists, the President can lift the
martial law imposition even before the end of the one-year period. Under the same
circumstances, the Congress itself may pass a resolution pre-terminating the extension.
This power emanates from the Congress' authority, granted under the Constitution, to
approve the extension and to fix its duration. The power to determine the period of the
extension necessarily includes the power to shorten it. Furthermore, considering that
this Court's judgment on the constitutionality of an extension is "transitory," or "valid at
that certain point of time," any citizen may petition the Court to review the sufficiency of
the factual basis for its continued implementation should the President and the
Congress fail or refuse to lift the imposition of martial law. During the deliberations on
the 1987 Constitution, it was explained:

FR. BERNAS. The decision of the Supreme Court will be based on its assessment of the
factual situation. Necessarily, therefore, the judgment of the Supreme Court on that is
a transitory judgment because the factual situation can change. So, while the
decision of the Supreme Court may be valid at that certain point of time, the situation
may change so that Congress should be authorized to do something about
it.185 (Emphasis ours)
Petitioners fear that the one-year extension of martial law will only intensify the human
rights violations committed by government forces against civilians. To place a territory
under martial law is undeniably an immense power, and like all other powers, it may be
abused.186 However, the possibility of abuse and even the country's martial law
experience under the Marcos regime did not prevent the framers of the 1987
Constitution from including it among the Commander-in-Chief powers of the President.
This is in recognition of the fact that during critical times when the security or survival of
the state is greatly imperiled, an equally vast and extraordinary measure should be
available for the President to protect and defend it.

Nevertheless, cognizant of such possibility of abuse, the framers of the 1987

Constitution endeavored to institute a system of checks and balances to limit the
President's exercise of the martial law and suspension powers, and to establish
safeguards to protect civil liberties. Thus, pursuant to Section 18, Article VII of the 1987
Constitution:

(a) The President may declare martial law or suspend of the privilege of the writ of the
privilege of habeas corpus only when there is an invasion or rebellion and public safety
requires such declaration or suspension.

(b) The President's proclamation or suspension shall be for a period not exceeding 60
days.

(c) Within 48 hours from the proclamation or suspension, the President must submit a
Report in person or in writing to Congress.
(d) The Congress, voting jointly and by a vote of at least a majority of all its Members, can
revoke the proclamation or suspension.

(e) The President cannot set aside the Congress' revocation of his proclamation or
suspension.

(f) The President cannot, by himself, extend his proclamation or suspension. He should
ask the Congress' approval.

(g) Upon such initiative or request from the President, the Congress, voting jointly and by
a vote of at least a majority of all its Members, can extend the proclamation or suspension
tor such period as it may determine.

(i) The extension of the proclamation or suspension shall only be approved when the
invasion or rebellion persists and public safety requires it.

(j) The Supreme Court may review the sufficiency of the factual basis of the proclamation
or suspension, or the extension thereof, in an appropriate proceeding filed by any citizen.

(k) The Supreme Court must promulgate its decision within 30 days from the filing of the
appropriate proceeding.

(l) Martial law does not suspend the operation of the Constitution.

Accordingly, the Bill of Rights187 remains effective under a state of martial law. Its
implementers must adhere to the principle that civilian authority is supreme over the
military and the armed forces is the protector of the people. 188 They must also abide by
the State's policy to value the dignity of every human person and guarantee full respect
for human rights.189

(m) Martial law does not 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.

(n) The suspension of the privilege of the writ applies only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

(o) Finally, during the suspension of the privilege of the writ, any person thus arrested or
detained should be judicially charged within three days, otherwise he should be released.
As Commissioner De Los Reyes explained during the deliberations on the 1987
Constitution:

MR. DE LOS REYES. May I explain my vote, Madam President.

My vote is yes. The power of the President to impose martial law is doubtless of a very
high and delicate nature. A free people are naturally jealous of the exercise of military
power, and the power to impose martial law is certainly felt to be one of no ordinary
magnitude. But as presented by the Committee, there are many safeguards: 1) it is limited
to 60 days; 2) Congress can revoke it; 3) the Supreme Court can still review as to the
sufficiency of the actual basis; and 4) it does not suspend the operation of the
Constitution. To repeat what I have quoted when I interpellated Commissioner Monsod, it
is said that the power to impose martial law is dangerous to liberty and may be
abused. All powers may be abused if placed in unworthy hands. But it would be
difficult, we think, to point out any other hands in which this power will be more
safe [sic] and at the same time equally effectual. When citizens of the State are in
arms against each other and the constituted authorities are unable to execute the laws,
the action of the President must be prompt or it is of little value. I vote yes. 190 (Emphasis
ours)
Human rights violations and abuses in the implementation of martial law and
suspension powers cannot by any measure be condoned. The Court lauds petitioners'
vigilance to make sure that the abuses of the past are not repeated and perceived
abuses of the present will not go unnoticed. However, as the Court settled in Lagman,
alleged human rights violations committed during the implementation of martial law or
the suspension of the privilege of the writ of habeas corpus should be resolved in a
separate proceeding. It, thus, bears noting some of the remedies, requirements and
penalties imposed under existing laws, meant to address abuses by arresting or
investigating public officers.

In Lacson v. Perez,191 the Court had occasion to rule:

Moreover, petitioners' contention in G.R. No. 147780 (Lacson Petition), 147781

(Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent
danger of being arrested without warrant do not justify their resort to the extraordinary
remedies of mandamus and prohibition, since an individual subject to warrantless arrest
is not without adequate remedies in the ordinary course of law. Such an individual may
ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may
adduce evidence in his defense, or he may submit himself to inquest proceedings to
determine whether or not he should remain under custody and correspondingly be
charged in court. x x x Should the detention be without legal ground, the person arrested
can charge the arresting officer with arbitrary detention. All this is without prejudice to his
filing an action for damages against the arresting officer under Article 32 of the Civil Code.
Verily, petitioners have a surfeit of other remedies which they can avail themselves of,
thereby making the prayer for prohibition and mandamus improper at this time (Sections
2 and 3, Rule 65, Rules of Court).192
R.A. No. 7438,193 which defines the rights of persons arrested, detained or under
custodiaJ investigation, imposes the following penalties on errant arresting or
investigating officers:

Section 4. Penalty Clause. - (a) Any arresting public officer or employee, or any
investigating officer, who fails to inform any person arrested, detained or under custodial
investigation of his right to remain silent and to have competent and independent counsel
preferably of his own choice, shall suffer a fine of six thousand pesos (P6,000.00) or a
penalty. of imprisonment of not less than eight (8) years but not more than ten (10) years,
or both. The penalty of perpetual absolute disqualification shall also be imposed upon the
investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting
upon orders of such investigating officer or in his place, who fails to provide a competent
and independent counsel to a person arrested, detained or under custodial investigation
for the commission of an offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any
medical doctor or priest or religious minister chosen by him or by any member of his
immediate family or by his counsel, from visiting and conferring privately with him, or from
examining and treating him, or from ministering to his spiritual needs, at any hour of the
day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less
than four (4) years nor more than six (6) years, and a fine of four thousand pesos
(P4,000.00).
Under R.A. No. 9372 or the Human Security Act of 2007, rebellion may be subsumed in
the crime of terrorism; it is one of the means by which terrorism can be
committed.194 R.A. No. 9372 imposes specific penalties for failure of the law
enforcement personnel to deliver the suspect to the proper judicial authority within the
prescribed period, for violating the rights of the detainee, and for using torture in the
interrogation or investigation of a detainee, viz:

SEC. 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority
within Three Days. - The penalty of ten (10) years and one day to twelve (12) years of
imprisonment shall be imposed upon any police or law enforcement personnel who has
apprehended or arrested, detained and taken custody of a person charged with or
suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver
such charged or suspected person to the proper judicial authority within the period of
three days.

x x x x

SEC. 22. Penalty for Violation of the Rights of a Detainee. - Any police or law
enforcement personnel, or any personnel of the police or other law enforcement custodial
unit that violates any of the aforesaid rights of a person charged with or suspected of the
crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an
offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of
imprisonment.

Unless the police or law enforcement personnel who violated the rights of a detainee or
detainees as stated above is duly identified, the same penalty shall be imposed on the
police officer or hear or leader of the law enforcement unit having custody of the detainee
at the time the violation was done.
x x x x

SEC. 25. Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation
and Interrogation of a Detained Person. - Any person or persons who use threat,
intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or
psychological pressure, which shall vitiate the free-will of a charged or suspected person
under investigation and interrogation for the crime of terrorism or the crime of conspiracy
to commit terrorism shall be guilty of an offense and shall suffer the penalty of twelve (12)
years and one day to twenty (20) years of imprisonment.

When death or Serious permanent disability of said detained person occurs as a

consequence of the use of such threat, intimidation, or coercion, or as a consequence of
the infliction on him of such physical pain or torment, or as a consequence of the infliction
on him of such mental, moral, or psychological pressure, the penalty shall be twelve (12)
years and one day to twenty (20) years of imprisonment.
R.A. No. 9372 also gave the Commission on Human Rights the following authority and
duty:

SEC. 55. Role of the Commission on Human Rights. - The Commission on Human
Rights shall give the highest priority to the investigation and prosecution of violations of
civil and political rights of persons in relation to the implementation of this Act; and for this
purpose, the Commission shall have the concurrent jurisdiction to prosecute public
officials, law enforcers, and other persons who may have violated the civil and political
rights of persons suspected of, or detained for the crime of terrorism or conspiracy to
commit terrorism.
R.A. No. 9745 or the Anti-Torture Act of 2009 provides that: "Torture and other cruel,
inhuman and degrading treatment or punishment as criminal acts shall apply to all
circumstances. A state of war or a threat of war, internal political instability, or any other
public emergency, or a document or any determination comprising an 'order of battle'
shall not and can never be. invoked as a justification for torture and other cruel,
inhuman and degrading treatment or punishment."195

The same law also expressly prohibits secret detention places, solitary
confinement, incommunicado or other similar forms of detention, where torture may be
carried out with impunity. For this purpose, it requires the Philippine National Police
(PNP), the Armed Forces of the Philippines (AFP) and other law enforcement agencies
concerned to make an updated list of all detention centers and facilities under their
respective jurisdictions with the corresponding data on the prisoners or detainees
incarcerated or detained therein such as, among others, names, date of arrest and
incarceration, and the crime or offense committed. The list is to be made available to
the public at all times.196

R.A. No. 9745 likewise defined the following rights of a torture victim in the institution of
a criminal complaint for torture:
(a) To have a prompt and an impartial investigation by the CHR and by agencies of
government concerned such as the Department of Justice (DOJ), the Public Attorney's
Office (PAO), the PNP, the National Bureau of Investigation (NBI) and the AFP. A prompt
investigation shall mean a maximum period of sixty (60) working days from the time a
complaint for torture is filed within which an investigation report and/or resolution shall be
completed and made available. An appeal whenever available shall be resolved within
the same period prescribed herein,

(b) To have sufficient government protection against all forms of harassment; threat
and/or intimidation as a consequence of the filing of said complaint or the presentation of
evidence therefor. In which case, the State through its appropriate agencies shall afford
security in order to ensure his/her safety and all other persons involved in the investigation
and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and

(c) To be accorded sufficient protection in the manner by which he/she testifies and
presents evidence in any fora in order to avoid further trauma.
It further imposes the following penalties on perpetrators of torture as defined therein:

Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be imposed upon the
perpetrators of the following acts:

(1) Torture resulting in the death of any person;

(2) Torture resulting in mutilation;

(3) Torture with rape;

(4) Torture with other forms of sexual abuse and, in consequence of torture, the victim
shall have become insane, imbecile, impotent, blind or maimed for life; and

(5) Torture committed against children.

(b) The penalty of reclusion temporal shall be imposed on those who commit any act of
mental/psychological torture resulting in insanity, complete or partial amnesia, fear of
becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.

(c) The penalty of prision correccional shall be imposed on those who commit any act of
torture resulting in psychological, mental and emotional harm other than those described
In paragraph (b) of this section.

(d) The penalty of prision mayor in its medium and maximum periods shall be imposed if,
in consequence of torture, the victim shall have lost the power of speech or the power to
hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have
lost the use of any such member; or shall have become permanently incapacitated for
labor.
(e) The penalty of prision mayor in its minimum and medium periods shall be imposed if,
in consequence of torture, the victim shall have become deformed or shall have lost any
part of his/her body other than those aforecited, or shall have lost the use thereof, or shall
have been ill or incapacitated for labor for a period of more than ninety (90) days.

(f) The penalty of prision correccional in its maximum period to prision mayor in its
minimum period shall be imposed if, in consequence of torture, the victim shall have been
ill or incapacitated for labor for mare than thirty (30) days but not more than ninety (90)
days.

(g) The penalty of prision correccional in its m1mmum and medium period shall be
imposed if, in consequence of torture, the victim shall have been ill or incapacitated for
labor for thirty (30) days or less.

(h) The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or
degrading treatment or punishment as defined in Section 5 of this Act.

(i) The penalty of prision correccional shall be imposed upon those who establish, operate
and maintain secret detention places and/or effect or cause to effect solitary confinement,
incommunicado or other similar fonns of prohibited detention as provided in Section 7 of
this Act where torture may be carried qut with impunity.

(j) The penalty of arresto mayor shall be imposed upon the responsible officers or
personnel of the AFP, the PNP and other law enforcement agencies for failure to perform
his/her duty to maintain, submit or make available to the public an updated list of detention
centers and facilities with the corresponding data on the prisoners or detainees
incarcerated or detained therein, pursuant to Section 7 of this Act.
This Court has likewise promulgated rules aimed at enforcing human rights. In A.M. No.
07-9-12-SC,197 this Court made available the remedy of a writ of amparo to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or
entity. Similarly, in A. M. No. 08-1-16-SC,198 this Court also crafted the rule on the writ
of habeas data to provide a remedy for any person whose right to privacy in life, liberty
or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of
the aggrieved party.

It also bears to note that the Philippines, is a signatory to the Universal Declaration of
Human Rights (UDHR),199 which is embodied in the International Bill of Human
Rights.200 As such, it recognizes that everyone has the right to liberty and security of
one's person.201 That no one shall be subjected to arbitrary arrest or detention; or that
no one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law, are just among the thirty (30) articles,
mentioned in the UDHR setting forth the human rights and fundamental freedoms to
which all men and women, everywhere in the world, are entitled, without any
discrimination.

Significantly, during the Congress' December 13, 2017 Joint Session, the Executive
Department, through Secretary Lorenzana, made an express commitment to submit a
monthly report to the Congress regarding the extended implementation of martial law in
Mindanao.202 Although not required under Section 18, Article VII of the 1987
Constitution, the submission of such report' is an ideal complement to the system of
checks and balance instituted therein. It will clearly assist the Congress in evaluating
the need to maintain or shorten the period of extension of martial. law in Mindanao; it
will also serve as an additional measure to check on possible abuses or human rights
violations in the Executive's enforcement of martial law.

Petitioners failed to comply with the requisites for the issuance of an injunctive
writ

The purpose of a preliminary injunction under Section 3, Rule 58 of the Ruls of

Court,203 is to prevent threatened or continuous irremediable injury to some of the
parties before their claims can be thoroughly studied and adjudicated. 204 Its sole aim is
to preserve the status quo until the merits of the case can be heard fully.205Status quo is
the last actual, peaceable and uncontested situation which precedes a
controversy.206 By jurisprudence, to be entitled to an injunctive writ, petitioners have the
burden to establish the following requisites: (1) a right in esse or a clear and
unmistakable right to be protected; (2) a violation of that right(3) that there is an urgent
and permanent act and urgent necessity tor the writ to prevent serious damage; 207 and
(4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of
irreparable injury.208

Petitioners anchored their prayer for the issuance of an injunctive writ on respondents'
gross transgressions of the Constitution when they extended the martial law in
Mindanao for one year. The Lagman petition likewise alleges that petitioner Villarin, a
Davao City resident, is personally prejudiced by the extension or martial law in
Mindanao "which would spawn violations of civil liberties of Mindanaoans like petitioner
Villarin who is a steadfast critic of the Duterte administration and of the brutalities
committed by police and military forces".

These grounds, however, cannot carry the day for the petitioners. Basic is the rule that
mere allegation is not evidence and is not equivalent to proof. 209 These allegations
cannot constitute a right in esse, as understood in jurisprudence. A right in esse is a
clear and unmistakable right to be protected,210 one clearly founded on or granted by
law or is enforceable as a matter of law.211 The existence of a right to be protected, and
the acts against which the writ is to be directed are violative of said right must be
established.212

The alleged violations of the petitioners' civil liberties do not justify the grant of injunctive
relief. The petitioners failed to prove that the alleged violations are directly attributable to
the imposition of martial law. They likewise failed to establish the nexus between the
President's exercise of his martial law powers and their unfounded apprehension that
the imposition "will target civilians who have no participation at all in any armed uprising
or struggle". Incidentally, petitioners failed to state what the "civil liberties" specifically
refer to, and how the extension of martial law in Mindanao would threaten these "civil
liberties" in derogation of the rule of law. Evidently, petitioners' right is doubtful or
disputed, and can hardly be considered a clear legal right, sufficient for the grant of an
injunctive writ.

In Dynamic Builders & Construction Co. (PHIL.), Inc. v. Hon. Ricardo P. Presbitero, Jr.,
et. al.,213 this Court held that no automatic issuance of an injunctive relief will result by
the mere allegation of a constitutionally protected right. We explained, thus:

Mere allegation or invocation that constitutionally protected rights were violated will not
automatically result in the issuance of injunctive relief. The plaintiff or the petitioner should
discharge the burden to show a clear and compelling breach of a constitutional provision.
Violations of constitutional provisions are easily alleged, but trial courts should scrutinize
diligently and deliberately the evidence showing the existence of facts that should support
the conclusion that a constitutional provision is clearly and convincingly breached. In case
of doubt, no injunctive relief should issue. In the proper cases, the aggrieved party may
then avail itself of special civil actions and elevate the matter.214
Indeed, this Court cannot rely on speculations, conjectures or guesswork, but must
depend upon competent proof and on the basis of the best evidence obtainable under
the circumstances.215 We emphasize that the grant or denial of an injunctive writ cannot
be properly resolved by suppositions, deductions, or even presumptions, with no basis
in evidence, for the truth must have to be determined by the procedural rules of
admissibility and proof. In The Executive Secretary v. Court of Appeals,216 this Court
stressed the indispensability of establishing the requirements for injunctive writ:

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be

unconstitutional, the party must establish that it will suffer irreparable harm in the absence
of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that
there are sufficiently serious questions going to the merits and the balance of hardships
tips decidedly in its favor. The higher standard reflects judicial deference toward
"legislation or regulations developed through presumptively reasoned democratic
processes." Moreover, an injunction will alter, rather than maintain, the status quo, or will
provide the movant with substantially all the relief sought and that relief cannot be undone
even if the defendant prevails at a trial on the merits. Considering that injunction is an
exercise of equitable relief and authority, in assessing whether to issue a preliminary
injunction, the courts must sensitively assess all the equities of the situation, including the
public interest. In litigations between governmental and private parties, courts go much
further both to give and withhold relief in furtherance of public interest than they are
accustomed to go when only private interests are involved. Before the plaintiff may be
entitled to injunction. against future enforcement, he is burdened to show some
substantial hardship.217 (Citations omitted and italics in the original)
Incidentally, there is nothing in the Constitution, nor in any law which supports
petitioners' theory. Such purported human right violations cannot be utilized as ground
either to enjoin the President from exercising the power to declare martial law, or the
Congress in extending the same. To sanction petitioners' plea would result into judicial
activism, thereby going against the principle of separation of powers.

As discussed above, petitioners are not left without any recourse. Such trangressions
can be addressed in a separate and independent court action. 218 Recall that the
imposition of martial law does not result in suspending the operation of the Constitution,
nor supplant the functioning of the civil courts nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function. Hence, petitioners can lodge a complaint-affidavit before the prosecutor's
office or file a direct complaint before the appropriate courts against erring parties.

A Final Word

The imperative necessity of .Martial Law as a tool of the government for self-
preservation is enshrined in the 1935, 1973 and 1987 Constitutions. It earned a bad
reputation during the Marcos era and apprehensions still linger in the minds of doubtful
and suspicious individuals. Mindful of its importance and necessity, the Constitution has
provided for safeguards against its abuses.

Martial law is a constitutional weapon against enemies of the State. Thus, Martial law is
not designed to oppress or abuse law abiding citizens of this country.

Unfortunately, the enemies of the State have employed devious, cunning and
calculating means to destabilize the government. They are engaged in an
unconventional, clandestine and protracted war to topple the government. The enemies
of the State are not always quantifiable, not always identifiable and not visible at all
times. They have mingled with ordinary citizens in the community and have unwittingly
utilized them in the recruitement, surveillance and attack against government forces.
Inevitably, government forces have arrested, injured and even killed these ordinary
citizens complicit with the enemies.

Admittedly, innocent civilians have also been victimized in the cross fire as unintended
casualties of this continuing war.

These incidents, however, should not weaken our resolve to defeat the enemies of the
State. In these exigencies, We cannot afford to emasculate, dilute or diminish the
powers of government if in the end it would lead to the destruction of the State and
place the safety of our citizens in peril and their interest in harm's way.

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Resolution
of Both Houses No. 4 and DECLARES it as CONSTITUTIONAL. Accordingly, the
consolidated Petitions are hereby DISMISSED.
Spark v. CA
Spark v. Quezon City

This petition for certiorari and prohibition1 assails the constitutionality of the curfew
ordinances issued by the local governments of Quezon City, Manila, and Navotas. The
petition prays that a temporary restraining order (TRO) be issued ordering respondents
Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of their respective
local governments, to prohibit, refrain, and desist from implementing and enforcing
these issuances, pending resolution of this case, and eventually, declare the City of
Manila's ordinance as ultra vires for being contrary to Republic Act No. (RA) 9344,2 or
the "Juvenile Justice and Welfare Act," as amended, and all curfew ordinances as
unconstitutional for violating the constitutional right of minors to travel, as well as the
right of parents to rear their children.

The Court's Ruling

A. Propriety of the Petition for

Certiorari and Prohibition.

Under the 1987 Constitution, judicial power includes the duty of the courts of justice not
only "to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."24 Section 1, Article VIII of the 1987 Constitution
reads:

ARTICLE VIII
JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis and underscoring supplied)

Case law explains that the present Constitution has "expanded the concept of judicial
power, which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable." 25

In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed
before the Court "are the remedies by which the grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution." 27 It was explained that "[w]ith
respect to the Court, x x x the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to
correct errors of jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions, but also to set right,
undo[,] and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government, even if
the latter does not exercise judicial, quasi-judicial or ministerial functions. This
application is expressly authorized by the text of the second paragraph of Section 1,
[Article VIII of the 1987 Constitution cited above]."28

In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc.,29 it was expounded that "[ m ]eanwhile that no specific
procedural rule has been promulgated to enforce [the] 'expanded' constitutional
definition of judicial power and because of the commonality of 'grave abuse of
discretion' as a ground for review under Rule 65 and the courts' expanded jurisdiction,
the Supreme Court - based on its power to relax its rules - allowed Rule 65 to be used
as the medium for petitions invoking the courts' expanded jurisdiction[. ]" 30

In this case, petitioners question the issuance of the Curfew Ordinances by the
legislative councils of Quezon City, Manila, and Navotas in the exercise of their
delegated legislative powers on the ground that these ordinances violate the
Constitution, specifically, the provisions pertaining to the right to travel of minors, and
the right of parents to rear their children. They also claim that the Manila Ordinance, by
imposing penalties against minors, conflicts with RA 9344, as amended, which prohibits
the imposition of penalties on minors for status offenses. It has been held that "[t]here is
grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will
or personal bias. "31 In light of the foregoing, petitioners correctly availed of the
remedies of certiorari and prohibition, although these governmental actions were not
made pursuant to any judicial or quasi-judicial function.

B. Direct Resort to the Court.

Since petitions for certiorari and prohibition are allowed as remedies to assail the
constitutionality of legislative and executive enactments, the next question to be
resolved is whether or not petitioners' direct resort to this Court is justified.

The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher court. The Supreme
Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals
[(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction
is allowed when there are special and important reasons therefor, clearly and
especially set out in the petition[.]"32 This Court is tasked to resolve "the issue of
constitutionality of a law or regulation at the first instance [if it] is of paramount
importance and immediately affects the social, economic, and moral well-being of
the people,"33 as in this case. Hence, petitioners' direct resort to the Court is justified.

C. Requisites of Judicial Review.

"The prevailing rule in constitutional litigation is that no question involving the

constitutionality or validity of a law or governmental act may be heard and decided by
the Court unless there is compliance with the legal requisites for judicial inquiry,
namely: (a) there must be an actual case or controversy calling for the exercise of
judicial power; (b) the person challenging the act must have the standing to question
the validity of the subject act or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the
very lis mota of the case."34 In this case, respondents assail the existence of the first
two (2) requisites.

1. Actual Case or Controversy.

"Basic in the exercise of judicial power - whether under the traditional or in the
expanded setting - is the presence of an actual case or controversy."35 "[A]n actual case
or controversy is one which 'involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute.' In other words, 'there must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."36 According to recent jurisprudence, in the Court's exercise of its
expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by
merely requiring a prima facie showing of grave abuse of discretion in the
assailed governmental act."37

"Corollary to the requirement of an actual case or controversy is the requirement of

ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe
for adjudication, it is a prerequisite that something has then been accomplished
or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or
is immediately in danger of sustaining some direct injury as a result of the act
complained of."38

Applying these precepts, this Court finds that there exists an actual justiciable
controversy in this case given the evident clash of the parties' legal claims, particularly
on whether the Curfew Ordinances impair the minors' and parents' constitutional rights,
and whether the Manila Ordinance goes against the provisions of RA 9344. Based on
their asseverations, petitioners have - as will be gleaned from the substantive
discussions below - conveyed a prima facie case of grave abuse of discretion, which
perforce impels this Court to exercise its expanded jurisdiction. The case is likewise ripe
for adjudication, considering that the Curfew Ordinances were being implemented until
the Court issued the TRO39 enjoining their enforcement. The purported threat or
incidence of injury is, therefore, not merely speculative or hypothetical but rather, real
and apparent.

2. Legal Standing.

"The question of locus standi or legal standing focuses on the determination of whether
those assailing the governmental act have the right of appearance to bring the matter to
the court for adjudication. [Petitioners] must show that they have a personal and
substantial interest in the case, such that they have sustained or are in immediate
danger of sustaining, some direct injury as a consequence of the enforcement of
the challenged governmental act."40 "' [I]nterest' in the question involved must be
material - an interest that is in issue and will be affected by the official act- as
distinguished from being merely incidental or general."41

"The gist of the question of [legal] standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a person is injuriously
affected in any of his constitutional rights by the operation of statute or ordinance, he
has no standing."42

As abovementioned, the petition is anchored on the alleged breach of two (2)

constitutional rights, namely: (1) the right of minors to freely travel within their respective
localities; and (2) the primary right of parents to rear their children. Related to the first is
the purported conflict between RA 9344, as amended, and the penal provisions of the
Manila Ordinance.

Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has
legal standing to raise the issue affecting the minor's right to travel,43 because: (a) she
was still a minor at the time the petition was filed before this Court,44 and, hence, a
proper subject of the Curfew Ordinances; and (b) as alleged, she travels from Manila to
Quezon City at night after school and is, thus, in imminent danger of apprehension by
virtue of the Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim,
John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes
(Mark Leo) admitted in the petition that they are all of legal age, and therefore, beyond
the ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances,
for which they could base any direct injury as a consequence thereof.

None of them, however, has standing to raise the issue of whether the Curfew
Ordinances violate the parents' right to rear their children as they have not shown that
they stand before this Court as parent/s and/or guardian/s whose constitutional parental
right has been infringed. It should be noted that Clarissa is represented by her father,
Julian Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for himself
for the alleged violation of his parental right. But Mr. Villegas did not question the
Curfew Ordinances based on his primary right as a parent as he only stands as the
representative of his minor child, Clarissa, whose right to travel was supposedly
infringed.

As for SPARK, it is an unincorporated association and, consequently, has no legal

personality to bring an action in court.45 Even assuming that it has the capacity to sue,
SPARK still has no standing as it failed to allege that it was authorized by its members
who were affected by the Curfew Ordinances, i.e., the minors, to file this case on their
behalf.

Hence, save for Clarissa, petitioners do not have the required personal interest in the
controversy. More particularly, Clarissa has standing only on the issue of the alleged
violation of the minors' right to travel, but not on the alleged violation of the parents'
right.

These notwithstanding, this Court finds it proper to relax the standing requirement
insofar as all the petitioners are concerned, in view of the transcendental importance of
the issues involved in this case. "In a number of cases, this Court has taken a liberal
stance towards the requirement of legal standing, especially when paramount interest is
involved. Indeed, when those who challenge the official act are able to craft an
issue of transcendental significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It may do so in spite of the
inability of the petitioners to show that they have been personally injured by the
operation of a law or any other government act."46

This is a case of first impression in which the constitutionality of juvenile curfew

ordinances is placed under judicial review. Not only is this Court asked to determine the
impact of these issuances on the right of parents to rear their children and the right of
minors to travel, it is also requested to determine the extent of the State's authority to
regulate these rights in the interest of general welfare. Accordingly, this case is of
overarching significance to the public, which, therefore, impels a relaxation of
procedural rules, including, among others, the standing requirement.

That being said, this Court now proceeds to the substantive aspect of this case.

II.

A. Void for Vagueness.

Before resolving the issues pertaining to the rights of minors to travel and of parents to
rear their children, this Court must first tackle petitioners' contention that the Curfew
Ordinances are void for vagueness.

In particular, petitioners submit that the Curfew Ordinances are void for not containing
sufficient enforcement parameters, which leaves the enforcing authorities with unbridled
discretion to carry out their provisions. They claim that the lack of procedural guidelines
in these issuances led to the questioning of petitioners Ronel and Mark Leo, even
though they were already of legal age. They maintain that the enforcing authorities
apprehended the suspected curfew offenders based only on their physical appearances
and, thus, acted arbitrarily. Meanwhile, although they conceded that the Quezon City
Ordinance requires enforcers to determine the age of the child, they submit that
nowhere does the said ordinance require the law enforcers to ask for proof or
identification of the child to show his age.47

The arguments are untenable.

"A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two (2) respects: (1) it
violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle."48

In this case, petitioners' invocation of the void for vagueness doctrine is improper,
considering that they do not properly identify any provision in any of the Curfew
Ordinances, which, because of its vague terminology, fails to provide fair warning and
notice to the public of what is prohibited or required so that one may act
accordingly.49 The void for vagueness doctrine is premised on due process
considerations, which are absent from this particular claim. In one case, it was opined
that:

[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may

involve "procedural due process uncertainty cases" and "substantive due process
uncertainty cases." "Procedural due process uncertainty" involves cases where the
statutory language was so obscure that it failed to give adequate warning to those
subject to its prohibitions as well as to provide proper standards for adjudication. Such a
definition encompasses the vagueness doctrine. This perspective rightly integrates the
vagueness doctrine with the due process clause, a necessary interrelation since there is
no constitutional provision that explicitly bars statutes that are "void-for-vagueness."50

Essentially, petitioners only bewail the lack of enforcement parameters to guide the
local authorities in the proper apprehension of suspected curfew offenders. They do
not assert any confusion as to what conduct the subject ordinances prohibit or
not prohibit but only point to the ordinances' lack of enforcement guidelines. The
mechanisms related to the implementation of the Curfew Ordinances are, however,
matters of policy that are best left for the political branches of government to resolve.
Verily, the objective of curbing unbridled enforcement is not the sole consideration in a
void for vagueness analysis; rather, petitioners must show that this perceived danger of
unbridled enforcement stems from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a particular conduct is prohibited or not
prohibited. In this regard, that ambiguous provision of law contravenes due process
because agents of the government cannot reasonably decipher what conduct the law
permits and/or forbids. In Bykofsky v. Borough of Middletown, 51 it was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and
juries for resolution on ad hoc and subjective basis, and vague standards result in
erratic and arbitrary application based on individual impressions and personal
predilections.52

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the
provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the
age of a suspected minor would be determined. Thus, without any correlation to any
vague legal provision, the Curfew Ordinances cannot be stricken down under the void
for vagueness doctrine.

Besides, petitioners are mistaken in claiming that there are no sufficient standards to
identify suspected curfew violators. While it is true that the Curfew Ordinances do not
explicitly state these parameters, law enforcement agents are still bound to follow the
prescribed measures found in statutory law when implementing ordinances. Specifically,
RA 9344, as amended, provides:

Section 7. Determination of Age. - x x x The age of a child may be determined from the
child's birth certificate, baptismal certificate or any other pertinent documents. In
the absence of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance of the child
and other relevant evidence. (Emphases supplied)

This provision should be read in conjunction with · the Curfew Ordinances because RA
10630 (the law that amended RA 9344) repeals all ordinances inconsistent with
statutory law.53 Pursuant to Section 57-A of RA 9344, as amended by RA
10630,54 minors caught in violation of curfew ordinances are children at risk and,
therefore, covered by its provisions.55 It is a long-standing principle that "[c]onformity
with law is one of the essential requisites for the validity of a municipal
ordinance."56 Hence, by necessary implication, ordinances should be read and
implemented in conjunction with related statutory law.

Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was
perceived to be a minor violating the curfew, may therefore prove that he is beyond the
application of the Curfew Ordinances by simply presenting any competent proof of
identification establishing their majority age. In the absence of such proof, the law
authorizes enforcement authorities to conduct a visual assessment of the suspect,
which - needless to state - should be done ethically and judiciously under the
circumstances. Should law enforcers disregard these rules, the remedy is to pursue the
appropriate action against the erring enforcing authority, and not to have the ordinances
invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is
denied.

B. Right of Parents to Rear their

Children.

Petitioners submit that the Curfew Ordinances are unconstitutional because they
deprive parents of their natural and primary right in the rearing of the youth without
substantive due process. In this regard, they assert that this right includes the right to
determine whether minors will be required to go home at a certain time or will be
allowed to stay late outdoors. Given that the right to impose curfews is primarily with
parents and not with the State, the latter's interest in imposing curfews cannot logically
be compelling.57

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the
rights of parents in the rearing of their children:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government. (Emphasis and underscoring supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the
"youth") for civic efficiency and the development of their moral character are
characterized not only as parental rights, but also as parental duties. This means that
parents are not only given the privilege of exercising their authority over their children;
they are equally obliged to exercise this authority conscientiously. The duty aspect of
this provision is a reflection of the State's independent interest to ensure that the youth
would eventually grow into free, independent, and well-developed citizens of this nation.
For indeed, it is during childhood that minors are prepared for additional obligations to
society. "[T]he duty to prepare the child for these [obligations] must be read to
include the inculcation of moral standards, religious beliefs, and elements of
good citizenship."58 "This affirmative process of teaching, guiding, and inspiring by
precept and example is essential to the growth of young people into mature, socially
responsible citizens."59

By history and tradition, "the parental role implies a substantial measure of authority
over one's children."60 In Ginsberg v. New York,61 the Supreme Court of the United
States (US) remarked that "constitutional interpretation has consistently recognized that
the parents' claim to authority in their own household to direct the rearing of their
children is basic in the structure of our society."62 As in our Constitution, the right
and duty of parents to rear their children is not only described as "natural," but also as
"primary." The qualifier "primary" connotes the parents' superior right over the
State in the upbringing of their children.63 The rationale for the State's deference to
parental control over their children was explained by the US Supreme Court in Bellotti v.
Baird (Bellotti),64 as follows:

[T]he guiding role of parents in their upbringing of their children justifies limitations on
the freedoms of minors. The State commonly protects its youth from adverse
governmental action and from their own immaturity by requiring parental consent to or
involvement in important decisions by minors. But an additional and more important
justification for state deference to parental control over children is that "the child
is not [a) mere creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him for
additional obligations."65 (Emphasis and underscoring supplied)

While parents have the primary role in child-rearing, it should be stressed that "when
actions concerning the child have a relation to the public welfare or the well-
being of the child, the [Sltate may act to promote these legitimate
interests."66 Thus, "[i]n cases in which harm to the physical or mental health of
the child or to public safety, peace, order, or welfare is demonstrated, these
legitimate state interests may override the parents' qualified right to control the
upbringing of their children."67

As our Constitution itself provides, the State is mandated to support parents in the
exercise of these rights and duties. State authority is therefore, not exclusive of, but
rather, complementary to parental supervision. In Nery v. Lorenzo,68 this Court
acknowledged the State's role as parens patriae in protecting minors, viz. :

[Where minors are involved, the State acts as parens patriae. To it is cast the duty
of protecting the rights of persons or individual who because of age or incapacity
are in an unfavorable position, vis-a-vis other parties. Unable as they are to take
due care of what concerns them, they have the political community to look after their
welfare. This obligation the state must live up to. It cannot be recreant to such a trust.
As was set forth in an opinion of the United States Supreme Court: "This prerogative
of parens patriae is inherent in the supreme power of every State, x x
x."69 (Emphases and underscoring supplied)

As parens patriae, the State has the inherent right and duty to aid parents in the
moral development of their children,70 and, thus, assumes a supporting role for
parents to fulfill their parental obligations. In Bellotti, it was held that "[I]egal restriction
on minors, especially those supportive of the parental role, may be important to the
child's chances for the full growth and maturity that make eventual participation in a free
society meaningful and rewarding. Under the Constitution, the State can properly
conclude that parents and others, teachers for example, who have the primary
responsibility for children's well-being are entitled to the support of the laws
designed to aid discharge of that responsibility."71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in
their role of promoting their children's well-being. As will be later discussed at greater
length, these ordinances further compelling State interests (particularly, the promotion
of juvenile safety and the prevention of juvenile crime), which necessarily entail
limitations on the primary right of parents to rear their children. Minors, because of their
peculiar vulnerability and lack of experience, are not only more exposed to potential
physical harm by criminal elements that operate during the night; their moral well-being
is likewise imperiled as minor children are prone to making detrimental decisions during
this time.72

At this juncture, it should be emphasized that the Curfew Ordinances apply only when
the minors are not - whether actually or constructively (as will be later discussed) -
accompanied by their parents. This serves as an explicit recognition of the State's
deference to the primary nature of parental authority and the importance of parents' role
in child-rearing. Parents are effectively given unfettered authority over their children's
conduct during curfew hours when they are able to supervise them. Thus, in all
actuality, the only aspect of parenting that the Curfew Ordinances affects is the
parents' prerogative to allow minors to remain in public places without parental
accompaniment during the curfew hours. 73 In this respect, the ordinances neither
dictate an over-all plan of discipline for the parents to apply to their minors nor
force parents to abdicate their authority to influence or control their minors'
activities.74 As such, the Curfew Ordinances only amount to a minimal - albeit
reasonable - infringement upon a parent's right to bring up his or her child.

Finally, it may be well to point out that the Curfew Ordinances positively influence
children to spend more time at home. Consequently, this situation provides parents with
better opportunities to take a more active role in their children's upbringing. In Schleifer
v. City of Charlottesvillle (Schleifer),75 the US court observed that the city government
"was entitled to believe x x x that a nocturnal curfew would promote parental
involvement in a child's upbringing. A curfew aids the efforts of parents who desire to
protect their children from the perils of the street but are unable to control the nocturnal
behavior of those children."76 Curfews may also aid the "efforts of parents who prefer
their children to spend time on their studies than on the streets." 77 Reason dictates that
these realities observed in Schleifer are no less applicable to our local context. Hence,
these are additional reasons which justify the impact of the nocturnal curfews on
parental rights.

In fine, the Curfew Ordinances should not be declared unconstitutional for violating the
parents' right to rear their children.

C. Right to Travel.

Petitioners further assail the constitutionality of the Curfew Ordinances based on the
minors' right to travel. They claim that the liberty to travel is a fundamental right, which,
therefore, necessitates the application of the strict scrutiny test. Further, they submit
that even if there exists a compelling State interest, such as the prevention of juvenile
crime and the protection of minors from crime, there are other less restrictive means for
achieving the government's interest.78 In addition, they posit that the Curfew Ordinances
suffer from overbreadth by proscribing or impairing legitimate activities of minors during
curfew hours.79

Petitioner's submissions are partly meritorious.

At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine,
considering that petitioners have not claimed any transgression of their rights to free
speech or any inhibition of speech-related conduct. In Southern Hemisphere
Engagement Network, Inc. v. AntiTerrorism Council(Southern Hemisphere), 80 this Court
explained that "the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free
speech cases,"81 viz.:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always
under situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception
to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights
of third parties; and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to
depart from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous enough
to bring suit. The Court assumes that an overbroad law's "very existence may cause
others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on
the speech of those third parties.82 (Emphases and underscoring supplied)

In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine
to free speech claims, the Court, in at least two [(2)] cases, observed that the US
Supreme Court has not recognized an overbreadth doctrine outside the limited context
of the First Amendment,83 and that claims of facial overbreadth have been entertained
in cases involving statutes which, by their terms, seek to regulate only spoken words.
In Virginia v. Hicks,84 it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or
speech-related conduct. Attacks on overly broad statutes are justified by the
'transcendent value to all society of constitutionally protected expression. "' 85

In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial
challenges can only be raised on the basis of overbreadth and not on
vagueness. Southern Hemisphere demonstrated how vagueness relates to violations of
due process rights, whereas facial challenges are raised on the basis of
overbreadth and limited to the realm of freedom of expression."87

That being said, this Court finds it improper to undertake an overbreadth analysis in this
case, there being no claimed curtailment of free speech. On the contrary, however, this
Court finds proper to examine the assailed regulations under the strict scrutiny test.

The right to travel is recognized and guaranteed as a fundamental right88 under Section
6, Article III of the 1987 Constitution, to wit:

Section 6. The liberty of 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. (Emphases and underscoring supplied)

Jurisprudence provides that this right refers to the right to move freely from the
Philippines to other countries or within the Philippines.89 It is a right embraced within the
general concept of liberty.90 Liberty - a birthright of every person - includes the power of
locomotion91 and the right of citizens to be free to use their faculties in lawful ways and
to live and work where they desire or where they can best pursue the ends of life. 92

The right to travel is essential as it enables individuals to access and exercise their
other rights, such as the rights to education, free expression, assembly, association,
and religion.93 The inter-relation of the right to travel with other fundamental rights was
briefly rationalized in City of Maquoketa v. Russell,94 as follows:

Whenever the First Amendment rights of freedom of religion, speech, assembly, and
association require one to move about, such movement must necessarily be protected
under the First Amendment.

Restricting movement in those circumstances to the extent that First Amendment

Rights cannot be exercised without violating the law is equivalent to a denial of
those rights. One court has eloquently pointed this out:

We would not deny the relatedness of the rights guaranteed by the First
Amendment to freedom of travel and movement. If, for any reason, people cannot
walk or drive to their church, their freedom to worship is impaired. If, for any reason,
people cannot walk or drive to the meeting hall, freedom of assembly is effectively
blocked. If, for any reason, people cannot safely walk the sidewalks or drive the streets
of a community, opportunities for freedom of speech are sharply limited. Freedom of
movement is inextricably involved with freedoms set forth in the First
Amendment. (Emphases supplied)

Nevertheless, grave and overriding considerations of public interest justify restrictions

even if made against fundamental rights. Specifically on the freedom to move from one
place to another, jurisprudence provides that this right is not absolute. 95 As the 1987
Constitution itself reads, the State96 may impose limitations on the exercise of this right,
provided that they: (1) serve the interest of national security, public safety, or
public health; and (2) are provided by law.97

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile
safety and prevention of juvenile crime, inarguably serve the interest of public safety.
The restriction on the minor's movement and activities within the confines of their
residences and their immediate vicinity during the curfew period is perceived to reduce
the probability of the minor becoming victims of or getting involved in crimes and
criminal activities. As to the second requirement, i.e., that the limitation "be provided by
law," our legal system is replete with laws emphasizing the State's duty to afford special
protection to children, i.e., RA 7610,98 as amended, RA 977599 RA 9262100 RA
9851101RA 9344102 RA 10364103 RA 9211104 RA8980,105 RA9288,106 and Presidential
Decree (PD) 603,107 as amended.

Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes
local government units, through their city or municipal councils, to set curfew hours for
children. It reads:

Article 139. Curfew Hours for Children. - City or municipal councils may prescribe
such curfew hours for children as may be warranted by local conditions. The duty
to enforce curfew ordinances shall devolve upon the parents or guardians and the local
authorities.

x x x x (Emphasis and underscoring supplied)

As explicitly worded, city councils are authorized to enact curfew ordinances (as what
respondents have done in this case) and enforce the same through their local officials.
In other words, PD 603 provides sufficient statutory basis - as required by the
Constitution - to restrict the minors' exercise of the right to travel.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise
constitutionally permissible. In this relation, this Court recognizes that minors do
possess and enjoy constitutional rights,108 but the exercise of these rights is not co-
extensive as those of adults.109 They are always subject to the authority or custody of
another, such as their parent/s and/or guardian/s, and the State.110 As parens
patriae, the State regulates and, to a certain extent, restricts the minors' exercise of their
rights, such as in their affairs concerning the right to vote,111 the right to execute
contracts,112 and the right to engage in gainful employment.113 With respect to the right
to travel, minors are required by law to obtain a clearance from the Department of
Social Welfare and Development before they can travel to a foreign country by
themselves or with a person other than their parents.114 These limitations demonstrate
that the State has broader authority over the minors' activities than over similar actions
of adults,115 and overall, reflect the State's general interest in the well-being of
minors.116 Thus, the State may impose limitations on the minors' exercise of rights even
though these limitations do not generally apply to adults.

In Bellotti,117the US Supreme Court identified three (3) justifications for the differential
treatment of the minors' constitutional rights. These are: first, the peculiar
vulnerability of children; second, their inability to make critical decisions in an
informed and mature manner; and third, the importance of the parental role in
child rearing:118

[On the first reason,] our cases show that although children generally are protected by
the same constitutional guarantees against governmental deprivations as are
adults, the State is entitled to adjust its legal system to account for children's
vulnerability and their needs for 'concern, ... sympathy, and ... paternal attention.x x x.

[On the second reason, this Court's rulings are] grounded [on] the recognition that,
during the formative years of childhood and adolescence, minors often lack the
experience, perspective, and judgment to recognize and avoid choices that could
be detrimental to them. x x x.

xxxx

[On the third reason,] the guiding role of parents in the upbringing of their children
justifies limitations on the freedoms of minors. The State commonly protects its youth
from adverse governmental action and from their own immaturity by requiring parental
consent to or involvement in important decisions by minors. x x x.

xxxx

x x x Legal restrictions on minors, especially those supportive of the parental role,

may be important to the child's chances for the full growth and maturity that make
eventual participation in a free society meaningful and rewarding. 119 (Emphases and
underscoring supplied)

Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the

heightened dangers on the streets to minors, as compared to adults:

A democratic society rests, for its continuance, upon the healthy, well-rounded growth of
young people into full maturity as citizens, with all that implies. It may secure this
against impeding restraints and dangers within a broad range of selection. Among evils
most appropriate for such action are the crippling effects of child employment, more
especially in public places, and the possible harms arising from other activities
subject to all the diverse influences of the [streets]. It is too late now to doubt that
legislation appropriately designed to reach such evils is within the state's police power,
whether against the parent's claim to control of the child or one that religious scruples
dictate contrary action.

It is true children have rights, in common with older people, in the primary use of
highways. But even in such use streets afford dangers for them not affecting adults.
And in other uses, whether in work or in other things, this difference may be
magnified.121 (Emphases and underscoring supplied)

For these reasons, the State is justified in setting restrictions on the minors' exercise of
their travel rights, provided, they are singled out on reasonable grounds.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine
the reasonableness of classifications.122 The strict scrutiny test applies when a
classification either (i) interferes with the exercise of fundamental rights, including the
basic liberties guaranteed under the Constitution, or (ii) burdens suspect
classes.123 The intermediate scrutiny test applies when a classification does not
involve suspect classes or fundamental rights, but requires heightened scrutiny, such as
in classifications based on gender and legitimacy.124 Lastly, the rational basis
test applies to all other subjects not covered by the first two tests.125

Considering that the right to travel is a fundamental right in our legal system guaranteed
no less by our Constitution, the strict scrutiny test126 is the applicable test.127 At this
juncture, it should be emphasized that minors enjoy the same constitutional rights as
adults; the fact that the State has broader authority over minors than over adults does
not trigger the application of a lower level of scrutiny.128 In Nunez v. City of San Diego
(Nunez),129 the US court illumined that:

Although many federal courts have recognized that juvenile curfews implicate the
fundamental rights of minors, the parties dispute whether strict scrutiny review is
necessary. The Supreme Court teaches that rights are no less "fundamental" for
minors than adults, but that the analysis of those rights may differ:

Constitutional rights do not mature and come into being magically only when one
attains the state-defined age of majority.1âwphi1 Minors, as well as adults, are
protected by the Constitution and possess constitutional rights. The Court[,]
indeed, however, [has long] recognized that the State has somewhat broader authority
to regulate the activities of children than of adults. xxx. Thus, minors' rights are not
coextensive with the rights of adults because the state has a greater range of
interests that justify the infringement of minors' rights.

The Supreme Court has articulated three specific factors that, when applicable, warrant
differential analysis of the constitutional rights of minors and adults: x x
x. The Bellotti test [however] does not establish a lower level of scrutiny for the
constitutional rights of minors in the context of a juvenile curfew. Rather,
the Bellotti framework enables courts to determine whether the state has a compelling
state interest justifying greater restrictions on minors than on adults. x x x.

x x x Although the state may have a compelling interest in regulating minors

differently than adults, we do not believe that [a] lesser degree of scrutiny is
appropriate to review burdens on minors' fundamental rights. x x x.

According, we apply strict scrutiny to our review of the ordinance. x x x. 130 (Emphases
supplied)

The strict scrutiny test as applied to minors entails a consideration of the peculiar
circumstances of minors as enumerated in Bellotti vis-a-vis the State's duty
as parenspatriae to protect and preserve their well-being with the compelling State
interests justifying the assailed government act. Under the strict scrutiny test, a
legislative classification that interferes with the exercise of a fundamental right or
operates to the disadvantage of a suspect class is presumed unconstitutional. 131 Thus,
the government has the burden of proving that the classification (1) is necessary
to achieve a compelling State interest, and (i1) is the least restrictive means to
protect such interest or the means chosen is narrowly tailored to accomplish the
interest.132

a. Compelling State Interest.

Jurisprudence holds that compelling State interests include constitutionally declared

policies.133 This Court has ruled that children's welfare and the State's mandate to
protect and care for them as parenspatriae constitute compelling interests to
justify regulations by the State.134 It is akin to the paramount interest of the state for
which some individual liberties must give way.135 As explained in Nunez,
the Bellotti framework shows that the State has a compelling interest in imposing
greater restrictions on minors than on adults. The limitations on minors under Philippine
laws also highlight this compelling interest of the State to protect and care for their
welfare.

In this case, respondents have sufficiently established that the ultimate objective of the
Curfew Ordinances is to keep unsupervised minors during the late hours of night time
off of public areas, so as to reduce - if not totally eliminate - their exposure to potential
harm, and to insulate them against criminal pressure and influences which may even
include themselves. As denoted in the "whereas clauses" of the Quezon City
Ordinance, the State, in imposing nocturnal curfews on minors, recognizes that:

[b] x x x children, particularly the minors, appear to be neglected of their proper care
and guidance, education, and moral development, which [lead] them into exploitation,
drug addiction, and become vulnerable to and at the risk of committing criminal
offenses;

xxxx
[d] as a consequence, most of minor children become out-of-school youth, unproductive
by-standers, street children, and member of notorious gangs who stay, roam around or
meander in public or private roads, streets or other public places, whether singly or in
groups without lawful purpose or justification;

xxxx

[f] reports of barangay officials and law enforcement agencies reveal that minor children
roaming around, loitering or wandering in the evening are the frequent personalities
involved in various infractions of city ordinances and national laws;

[g] it is necessary in the interest of public order and safety to regulate the movement of
minor children during night time by setting disciplinary hours, protect them from neglect,
abuse or cruelty and exploitation, and other conditions prejudicial or detrimental to their
development;

[h] to strengthen and support parental control on these minor children, there is a need to
put a restraint on the tendency of growing number of youth spending their nocturnal
activities wastefully, especially in the face of the unabated rise of criminality and to
ensure that the dissident elements of society are not provided with potent avenues for
furthering their nefarious activities[.]136

The US court's judicial demeanor in Schleifer,137 as regards the information gathered by

the City Council to support its passage of the curfew ordinance subject of that case,
may serve as a guidepost to our own eatment of the present case. Significantly,
in Schleifer, the US court recognized the entitlement of elected bodies to implement
policies for a safer community, in relation to the proclivity of children to make dangerous
and potentially life-shaping decisions when left unsupervised during the late hours of
night:

Charlottesville was constitutionally justified in believing that its curfew would materially
assist its first stated interest-that of reducing juvenile violence and crime. The City
Council acted on the basis of information from many sources, including records from
Charlottesville's police department, a survey of public opinion, news reports, data from
the United States Department of Justice, national crime reports, and police reports from
other localities. On the basis of such evidence, elected bodies are entitled to
conclude that keeping unsupervised juveniles off the streets late at night will
make for a safer community. The same streets may have a more volatile and less
wholesome character at night than during the day. Alone on the streets at night
children face a series of dangerous and potentially life-shaping decisions. Drug
dealers may lure them to use narcotics or aid in their sale. Gangs may pressure them
into membership or participation in violence. "[D]uring the formative years of childhood
and adolescence, minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them." Those who succumb
to these criminal influences at an early age may persist in their criminal conduct
as adults. Whether we as judges subscribe to these theories is beside the point. Those
elected officials with their finger on the pulse of their home community clearly did. In
attempting to reduce through its curfew the opportunities for children to come into
contact with criminal influences, the City was directly advancing its first objective of
reducing juvenile violence and crime.138 (Emphases and underscoring supplied;
citations omitted)

Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City
and Manila presented statistical data in their respective pleadings showing the alarming
prevalence of crimes involving juveniles, either as victims or perpetrators, in their
respective localities.139

Based on these findings, their city councils found it necessary to enact curfew
ordinances pursuant to their police power under the general welfare clause. 140 In this
light, the Court thus finds that the local governments have not only conveyed but, in
fact, attempted to substantiate legitimate concerns on public welfare, especially
with respect to minors. As such, a compelling State interest exists for the enactment
and enforcement of the Curfew Ordinances.

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to
determine if the restrictions set forth in· the Curfew Ordinances are narrowly tailored or
provide the least restrictive means to address the cited compelling State interest - the
second requirement of the strict scrutiny test.

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise
that citizens should not be hampered from pursuing legitimate activities in the exercise
of their constitutional rights. While rights may be restricted, the restrictions must be
minimal or only to the extent necessary to achieve the purpose or to address the State's
compelling interest. When it is possible for governmental regulations to be more
narrowly drawn to avoid conflicts with constitutional rights, then they must be so
narrowly drawn. 141

Although treated differently from adults, the foregoing standard applies to regulations on
minors as they are still accorded the freedom to participate in any legitimate activity,
whether it be social, religious, or civic.142 Thus, in the present case, each of the
ordinances must be narrowly tailored as to ensure minimal constraint not only on the
minors' right to travel but also on their other constitutional rights.143

In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for

not being narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely
exercise their religion and to free speech.145 It observed that:

The ordinance prohibits the older minor from attending alone Christmas Eve
Midnight Mass at the local Roman Catholic Church or Christmas Eve services at
the various local Protestant Churches. It would likewise prohibit them from attending
the New [Year's] Eve watch services at the various churches. Likewise it would prohibit
grandparents, uncles, aunts or adult brothers and sisters from taking their minor
relatives of any age to the above mentioned services. x x x.

xxxx

Under the ordinance, during nine months of the year a minor could not even attend
the city council meetings if they ran past 10:30 (which they frequently do) to express
his views on the necessity to repeal the curfew ordinance, clearly a deprivation of his
First Amendment right to freedom of speech.

xxxx

[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was
[a] very narrowly drawn ordinance of many pages with eleven exceptions and was very
carefully drafted in an attempt to pass constitutional muster. It specifically excepted
[the] exercise of First Amendment rights, travel in a motor vehicle and returning
home by a direct route from religious, school, or voluntary association
activities. (Emphases supplied)

After a thorough evaluation of the ordinances' respective provisions, this Court finds that
only the Quezon City Ordinance meets the above-discussed requirement, while the
Manila and Navotas Ordinances do not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew,
namely: (a) minors accompanied by their parents, family members of legal age, or
guardian; (b) those running lawful errands such as buying of medicines, using of
telecommunication facilities for emergency purposes and the like; (c) night school
students and those who, by virtue of their employment, are required in the streets or
outside their residence after 10:00 p.m.; and (d) those working at night.146

For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with
night classes; (b) those working at night; (c) those who attended a school or church
activity, in coordination with a specific barangay office; (d) those traveling towards home
during the curfew hours; (e) those running errands under the supervision of their
parents, guardians, or persons of legal age having authority over them; (j) those
involved in accidents, calamities, and the like. It also exempts minors from the curfew
during these specific occasions: Christmas eve, Christmas day, New Year's eve, New
Year's day, the night before the barangay fiesta, the day of the fiesta, All Saints' and All
Souls' Day, Holy Thursday, Good Friday, Black Saturday, and Easter Sunday.147

This Court observes that these two ordinances are not narrowly drawn in that their
exceptions are inadequate and therefore, run the risk of overly restricting the minors'
fundamental freedoms. To be fair, both ordinances protect the rights to education, to
gainful employment, and to travel at night from school or work.148 However, even with
those safeguards, the Navotas Ordinance and, to a greater extent, the Manila
Ordinance still do not account for the reasonable exercise of the minors' rights of
association, free exercise of religion, rights to peaceably assemble, and of free
expression, among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample
upon protected liberties. The Navotas Ordinance is apparently more protective of
constitutional rights than the Manila Ordinance; nonetheless, it still provides insufficient
safeguards as discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them
from engaging in legitimate non-school or nonchurch activities in the streets or going to
and from such activities; thus, their freedom of association is effectively curtailed. It
bears stressing that participation in legitimate activities of organizations, other than
school or church, also contributes to the minors' social, emotional, and intellectual
development, yet, such participation is not exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas
Eve and Christmas day, it effectively prohibits minors from attending traditional religious
activities (such as simbang gabi) at night without accompanying adults, similar to the
scenario depicted in Mosier.149 This legitimate activity done pursuant to the minors' right
to freely exercise their religion is therefore effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in
political rallies or attend city council meetings to voice out their concerns in line with
their right to peaceably assemble and to free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities
outside curfew hours, but the Court finds no reason to prohibit them from participating in
these legitimate activities during curfew hours. Such proscription does not advance the
State's compelling interest to protect minors from the dangers of the streets at night,
such as becoming prey or instruments of criminal activity. These legitimate activities are
merely hindered without any reasonable relation to the State's interest; hence, the
Navotas Ordinance is not narrowly drawn. More so, the Manila Ordinance, with its
limited exceptions, is also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since
their exceptions, which are essentially determinative of the scope and breadth of the
curfew regulations, are inadequate to ensure protection of the above-mentioned
fundamental rights. While some provisions may be valid, the same are merely ancillary
thereto; as such, they cannot subsist independently despite the presence 150 of any
separability clause.151

The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it
sufficiently safeguards the minors' constitutional rights. It provides the following
exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not
be covered by the provisions of this ordinance;

(a) Those accompanied by their parents or guardian;

(b) Those on their way to or from a party, graduation ceremony, religious

mass, and/or other extra-curricular activities of their school or organization
wherein their attendance are required or otherwise indispensable, or when
such minors are out and unable to go home early due to circumstances
beyond their control as verified by the proper authorities concerned; and

(c) Those attending to, or in experience of, an emergency situation such as

conflagration, earthquake, hospitalization, road accident, law enforcers
encounter, and similar incidents[;]

(d) When the minor is engaged in an authorized employment activity, or going to

or returning home from the same place of employment activity without any detour
or stop;

(e) When the minor is in [a] motor vehicle or other travel accompanied by an
adult in no violation of this Ordinance;

(f) When the minor is involved in an emergency;

(g) When the minor is out of his/her residence attending an official school,
religious, recreational, educational, social, community or other similar
private activity sponsored by the city, barangay, school, or other similar
private civic/religious organization/group (recognized by the community)
that supervises the activity or when the minor is going to or returning
home from such activity, without any detour or stop; and

(h) When the minor can present papers certifying that he/she is a student and
was dismissed from his/her class/es in the evening or that he/she is a working
student.152 (Emphases and underscoring supplied)

As compared to the first two (2) ordinances, the list of exceptions under the Quezon City
Ordinance is more narrowly drawn to sufficiently protect the minors' rights of
association, free exercise of religion, travel, to peaceably assemble, and of free
expression.

Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the
protection of these aforementioned rights. These items uphold the right of
association by enabling minors to attend both official and extra-curricular
activities not only of their school or church but also of other legitimate
organizations. The rights to peaceably assemble and of free expression are also
covered by these items given that the minors' attendance in the official activities
of civic or religious organizations are allowed during the curfew hours. Unlike in
the Navotas Ordinance, the right to the free exercise of religion is sufficiently
safeguarded in the Quezon City Ordinance by exempting attendance at religious
masses even during curfew hours. In relation to their right to ravel, the ordinance allows
the minor-participants to move to and from the places where these activities are
held. Thus, with these numerous exceptions, the Quezon City Ordinance, in truth,
only prohibits unsupervised activities that hardly contribute to the well-being of
minors who publicly loaf and loiter within the locality at a time where danger is
perceivably more prominent.

To note, there is no lack of supervision when a parent duly authorizes his/her minor
child to run lawful errands or engage in legitimate activities during the night,
notwithstanding curfew hours. As astutely observed by Senior Associate Justice Antonio
T. Carpio and Associate Justice Marvic M.V.F. Leonen during the deliberations on this
case, parental permission is implicitly considered as an exception found in Section 4,
item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or
guardian", as accompaniment should be understood not only in its actual but also in its
constructive sense. As the Court sees it, this should be the reasonable construction of
this exception so as to reconcile the juvenile curfew measure with the basic premise
that State interference is not superior but only complementary to parental supervision.
After all, as the Constitution itself prescribes, the parents' right to rear their children is
not only natural but primary.

Ultimately, it is important to highlight that this Court, in passing judgment on these

ordinances, is dealing with the welfare of minors who are presumed by law to be
incapable of giving proper consent due to their incapability to fully understand the import
and consequences of their actions. In one case it was observed that:

A child cannot give consent to a contract under our civil laws. This is on the rationale
that she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parenspatriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as
yet unable to take care of themselves fully. Those of tender years deserve its
protection.153

Under our legal system's own recognition of a minor's inherent lack of full rational
capacity, and balancing the same against the State's compelling interest to promote
juvenile safety and prevent juvenile crime, this Court finds that the curfew imposed
under the Quezon City Ordinance is reasonably justified with its narrowly drawn
exceptions and hence, constitutional. Needless to say, these exceptions are in no way
limited or restricted, as the State, in accordance with the lawful exercise of its police
power, is not precluded from crafting, adding, or modifying exceptions in similar
laws/ordinances for as long as the regulation, overall, passes the parameters of scrutiny
as applied in this case.

D. Penal Provisions of the Manila Ordinance.

Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to
further discuss the validity of its penal provisions in relation to RA 9344, as amended.

To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under
Section 8 thereof,154 does not impose any penalty on the minors. For its part, the
Navotas Ordinance requires the minor, along with his or her parent/s or guardian/s, to
render social civic duty and community service either in lieu of - should the parent/s or
guardian/s of the minor be unable to pay the fine imposed - or in addition to the fine
imposed therein.155 Meanwhile, the Manila Ordinance imposed various sanctions to
the minor based on the age and frequency of violations, to wit:

SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance
shall be sanctioned/punished as follows:

(a) If the offender is Fifteen (15) years of age and below, the sanction shall
consist of a REPRIMAND for the youth offender and ADMONITION to the
offender's parent, guardian or person exercising parental authority.

(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of
age, the sanction/penalty shall be:

1. For the FIRST OFFENSE, Reprimand and Admonition;

2. For the SECOND OFFENSE, Reprimand and Admonition, and a

warning about the legal impostitions in case of a third and subsequent
violation; and

3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of

one (1) day to ten (10) days, or a Fine of TWO THOUSAND PESOS
(Php2,000.00), or both at the discretion of the Court, PROVIDED, That
the complaint shall be filed by the PunongBarangay with the office of the
City Prosecutor.156 (Emphases and underscoring supplied).

Thus springs the question of whether local governments could validly impose on minors
these sanctions - i.e., (a) community . service; (b) reprimand and admonition; (c) fine;
and (d) imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as amended,
prohibit the imposition of penalties on minors for status offenses such as curfew
violations, viz.:

SEC. 57. Status Offenses. - Any conduct not considered an offense or not
penalized if committed by an adult shall not be considered an offense and shall
not be punished if committed by a child.

SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local

governments concerning juvenile status offenses such as but not limited to, curfew
violations, truancy, parental disobedience, anti-smoking and anti-drinking laws, as well
as light offenses and misdemeanors against public order or safety such as, but not
limited to, disorderly conduct, public scandal, harassment, drunkenness, public
intoxication, criminal nuisance, vandalism, gambling, mendicancy, littering, public
urination, and trespassing, shall be for the protection of children. No penalty shall
be imposed on children for said violations, and they shall instead be brought to their
residence or to any barangay official at the barangay hall to be released to the custody
of their parents. Appropriate intervention programs shall be provided for in such
ordinances. The child shall also be recorded as a "child at risk" and not as a "child in
conflict with the law." The ordinance shall also provide for intervention programs, such
as counseling, attendance in group activities for children, and for the parents,
attendance in parenting education seminars. (Emphases and underscoring supplied.)

To clarify, these provisions do not prohibit the enactment of regulations that curtail the
conduct of minors, when the similar conduct of adults are not considered as an offense
or penalized (i.e., status offenses). Instead, what they prohibit is the imposition
of penalties on minors for violations of these regulations. Consequently, the enactment
of curfew ordinances on minors, without penalizing them for violations thereof, is not
violative of Section 57-A.

"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of

imprisonment or fine";158 "[p ]unishment imposed by lawful authority upon a person who
commits a deliberate or negligent act."159 Punishment, in tum, is defined as "[a] sanction
- such as fine, penalty, confinement, or loss of property, right, or privilege - assessed
against a person who has violated the law."160

The provisions of RA 9344, as amended, should not be read to mean that all the actions
of the minor in violation of the regulations are without legal consequences. Section 57-A
thereof empowers local governments to adopt appropriate intervention programs, such
as community-based programs161 recognized under Section 54162 of the same law.

In this regard, requiring the minor to perform community service is a valid form of
intervention program that a local government (such as Navotas City in this case) could
appropriately adopt in an ordinance to promote the welfare of minors. For one, the
community service programs provide minors an alternative mode of rehabilitation as
they promote accountability for their delinquent acts without the moral and social stigma
caused by jail detention.

In the same light, these programs help inculcate discipline and compliance with the law
and legal orders. More importantly, they give them the opportunity to become productive
members of society and thereby promote their integration to and solidarity with their
community.

The sanction of admonition imposed by the City of Manila is likewise consistent with
Sections 57 and 57-A of RA 9344 as it is merely a formal way of giving warnings and
expressing disapproval to the minor's misdemeanor. Admonition is generally defined as
a "gentle or friendly reproof' or "counsel or warning against fault or oversight." 163 The
Black's Law Dictionary defines admonition as "[a]n authoritatively issued warning or
censure";164 while the Philippine Law Dictionary defines it as a "gentle or friendly
reproof, a mild rebuke, warning or reminder, [counseling], on a fault, error or oversight,
an expression of authoritative advice or warning."165 Notably, the Revised Rules on
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in
administrative cases explicitly declare that "a warning or admonition shall not be
considered a penalty."166

In other words, the disciplinary measures of community-based programs and

admonition are clearly not penalties - as they are not punitive in nature - and are
generally less intrusive on the rights and conduct of the minor. To be clear, their
objectives are to formally inform and educate the minor, and for the latter to understand,
what actions must be avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to reprimand and fines and/or
imprisonment imposed by the City of Manila on the minor. Reprimand is generally
defined as "a severe or formal reproof."167 The Black's Law Dictionary defines it as "a
mild form of lawyer discipline that does not restrict the lawyer's ability to practice
law";168 while the Philippine Law Dictionary defines it as a "public and formal censure or
severe reproof, administered to a person in fault by his superior officer or body to which
he belongs. It is more than just a warning or admonition."169 In other words, reprimand is
a formal and public pronouncement made to denounce the error or violation committed,
to sharply criticize and rebuke the erring individual, and to sternly warn the erring
individual including the public against repeating or committing the same, and thus, may
unwittingly subject the erring individual or violator to unwarranted censure or sharp
disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate
that reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as
amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as

provided in our various criminal and administrative laws and jurisprudence - that Section
57-A of RA 9344, as amended, evidently prohibits.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It

states that "[n]o penalty shall be imposed on children for x x x violations [of]
juvenile status offenses]." Thus, for imposing the sanctions of reprimand, fine, and/or
imprisonment on minors for curfew violations, portions of Section 4 of the Manila
Ordinance directly and irreconcilably conflict with the clear language of Section 57-A of
RA 9344, as amended, and hence, invalid. On the other hand, the impositions of
community service programs and admonition on the minors are allowed as they do not
constitute penalties.

CONCLUSION

In sum, while the Court finds that all three Curfew Ordinances have passed the first
prong of the strict scrutiny test - that is, that the State has sufficiently shown a
compelling interest to promote juvenile safety and prevent juvenile crime in the
concerned localities, only the Quezon City Ordinance has passed the second prong of
the strict scrutiny test, as it is the only issuance out of the three which provides for the
least restrictive means to achieve this interest. In particular, the Quezon City Ordinance
provides for adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to
achieve the State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose
accompanied by their parents or guardian", has also been construed to include parental
permission as a constructive form of accompaniment and hence, an allowable exception
to the curfew measure; the manner of enforcement, however, is left to the discretion of
the local government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null
and void, while the Quezon City Ordinance is declared as constitutional and thus, valid
in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions
imposing reprimand and fines/imprisonment on minors conflict with Section 57-A of RA
9344, as amended. Hence, following the rule that ordinances should always conform
with the law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares

Ordinance No. 8046, issued by the local government of the City of Manila,
and Pambayang Ordinansa Blg. No. 99-02, as amended by Pambayang Ordinansa Blg.
2002-13 issued by the local government of Navotas City, UNCONSTITUTIONAL and,
thus, NULL and VOID; while Ordinance No. SP-2301, Series of 2014, issued by the
local government of the Quezon City is declared CONSTITUTIONAL and, thus, VALID
in accordance with this Decision.
Rodriguez Case (writ of Amparo)

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary
protection order. It must be underscored that this interim relief is only available before
final judgment. Section 14 of the Rule on the Writ of Amparo clearly provides:

Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the
court, justice or judge may grant any of the following reliefs:

Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved party and any member of the immediate
family be protected in a government agency or by an accredited person or private
institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and
conditions that may be imposed by the court, justice or judge.

(a) Inspection Order. – The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported
by affidavits or testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged nature of
the information, the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of
the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the
inspection and the date, time, place and manner of making the inspection and may
prescribe other conditions to protect the constitutional rights of all parties. The order
shall expire five (5) days after the date of its issuance, unless extended for justifiable
reasons.

(b) Production Order. – The court, justice, or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to
the petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged
nature of the information, in which case the court, justice or judge may conduct a
hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional
rights of all the parties.

(c) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio,
may refer the witnesses to the Department of Justice for admission to the Witness
Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies,
or to accredited persons or private institutions capable of keeping and securing their
safety. (Emphasis supplied)

We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist the
court before it arrives at a judicious determination of the amparo petition." Being interim
reliefs, they can only be granted before a final adjudication of the case is made. In any
case, it must be underscored that the privilege of the writ of amparo, once granted,
necessarily entails the protection of the aggrieved party. Thus, since we grant petitioner
the privilege of the writ of amparo, there is no need to issue a temporary protection
order independently of the former. The order restricting respondents from going near
Rodriguez is subsumed under the privilege of the writ.

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal
liability in amparo and habeas data proceedings, courts can only go as far as
ascertaining responsibility or accountability for the enforced disappearance or
extrajudicial killing. As we held in Razon v. Tagitis:69

It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather,
it determines responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft, among them, the
directive to file the appropriate criminal and civil cases against the responsible parties in
the proper courts. Accountability, on the other hand, refers to the measure of remedies
that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance. In all these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the disappearance, so that the life of the
victim is preserved and his liberty and security are restored.70 (Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision71 found respondents in
G.R. No. 191805 – with the exception of Calog, Palacpac or Harry – to be accountable
for the violations of Rodriguez’s right to life, liberty and security committed by the 17th
Infantry Battalion, 5th Infantry Division of the Philippine Army. 72 The Court of Appeals
dismissed the petition with respect to former President Arroyo on account of her
presidential immunity from suit. Rodriguez contends, though, that she should remain a
respondent in this case to enable the courts to determine whether she is responsible or
accountable therefor. In this regard, it must be clarified that the Court of Appeals’
rationale for dropping her from the list of respondents no longer stands since her
presidential immunity is limited only to her incumbency.

In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does not
enjoy immunity from suit, even for acts committed during the latter’s tenure. We
emphasize our ruling therein that courts should look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the
vindication of a right, to wit:

We reject [Estrada’s] argument that he cannot be prosecuted for the reason that he
must first be convicted in the impeachment proceedings. The impeachment trial of
petitioner Estrada was aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed
Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."
Since the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar against his prosecution.
Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper
criminal and civil cases may already be filed against him, viz:

"x x x xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgment of conviction has
been rendered by the impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then
his resignation would render the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure" but not beyond. xxx

We now come to the scope of immunity that can be claimed by petitioner as a non-
sitting President. The cases filed against petitioner Estrada are criminal in character.
They involve plunder, bribery and graft and corruption. By no stretch of the imagination
can these crimes, especially plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision
of this Court licensing the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation
from liability for unlawful acts and omissions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such
but stands in the same footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v. Nixon, US President Richard
Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of
President Nixon's associates were facing charges of conspiracy to obstruct justice and
other offenses which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that "when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice." In the 1982
case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the
President from civil damages covers only "official acts." Recently, the US Supreme
Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it
held that the US President's immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.74 (Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the presidential

immunity from suit exists only in concurrence with the president’s incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity

from suit. His arguments are merely recycled and we need not prolong the longevity of
the debate on the subject. In our Decision, we exhaustively traced the origin of
executive immunity in our jurisdiction and its bends and turns up to the present time. We
held that given the intent of the 1987 Constitution to breathe life to the policy that a
public office is a public trust, the petitioner, as a non-sitting President, cannot claim
executive immunity for his alleged criminal acts committed while a sitting President.
Petitioner's rehashed arguments including their thinly disguised new spins are based on
the rejected contention that he is still President, albeit, a President on leave. His stance
that his immunity covers his entire term of office or until June 30, 2004 disregards the
reality that he has relinquished the presidency and there is now a new de jure
President.

Petitioner goes a step further and avers that even a non-sitting President enjoys
immunity from suit during his term of office. He buttresses his position with the
deliberations of the Constitutional Commission, viz:

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
president shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigations,
as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence
that during his tenure he is immune from suit.
Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification."

Petitioner, however, fails to distinguish between term and tenure. The term means the
time during which the officer may claim to hold the office as of right, and fixes the
interval after which the several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds office. The tenure may
be shorter than the term for reasons within or beyond the power of the incumbent. From
the deliberations, the intent of the framers is clear that the immunity of the president
from suit is concurrent only with his tenure and not his term.76 (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President
Arroyo cannot use the presidential immunity from suit to shield herself from judicial
scrutiny that would assess whether, within the context of amparo proceedings, she was
responsible or accountable for the abduction of Rodriguez.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez

contends that the doctrine of command responsibility may be applied. As we explained
in Rubrico v. Arroyo,77 command responsibility pertains to the "responsibility of
commanders for crimes committed by subordinate members of the armed forces or
other persons subject to their control in international wars or domestic
conflict."78 Although originally used for ascertaining criminal complicity, the command
responsibility doctrine has also found application in civil cases for human rights
abuses.79 In the United States, for example, command responsibility was used in Ford
v. Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort Claims Act
and the Torture Victim Protection Act.80 This development in the use of command
responsibility in civil proceedings shows that the application of this doctrine has been
liberally extended even to cases not criminal in nature. Thus, it is our view that
command responsibility may likewise find application in proceedings seeking the
privilege of the writ of amparo. As we held in Rubrico:
It may plausibly be contended that command responsibility, as legal basis to hold
military/police commanders liable for extra-legal killings, enforced disappearances, or
threats, may be made applicable to this jurisdiction on the theory that the command
responsibility doctrine now constitutes a principle of international law or customary
international law in accordance with the incorporation clause of the Constitution.

xxx xxx xxx

If command responsibility were to be invoked and applied to these proceedings, it

should, at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there
be any.81 (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to
determine whether respondents are accountable for and have the duty to address the
abduction of Rodriguez in order to enable the courts to devise remedial measures to
protect his rights. Clearly, nothing precludes this Court from applying the doctrine of
command responsibility in amparo proceedings to ascertain responsibility and
accountability in extrajudicial killings and enforced disappearances. In this regard, the
Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil
or administrative liability should not abate the applicability of the doctrine of command
responsibility. Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in
proper context, they do not preclude the application of the doctrine of command
responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and
its contemporary signification as a guarantee of protection of one’s rights by the
government. It further stated that protection includes conducting effective investigations,
organization of the government apparatus to extend protection to victims of extralegal
killings or enforced disappearances, or threats thereof, and/or their families, and
bringing offenders to the bar of justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in
principle, of the doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones
who were remiss in their duties when the government completely failed to exercise the
extraordinary diligence that the Amparo Rule requires. We hold these organizations
accountable through their incumbent Chiefs who, under this Decision, shall carry the
personal responsibility of seeing to it that extraordinary diligence, in the manner the
Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis.

Neither does Republic Act No. 9851 emasculate the applicability of the command
responsibility doctrine to Amparo cases. The short title of the law is the "Philippine Act
on Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity." Obviously, it should, as it did, only treat of superior responsibility as
a ground for criminal responsibility for the crimes
covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html -
fnt20cm Such limited treatment, however, is merely in keeping with the statute’s
purpose and not intended to rule out the application of the doctrine of command
responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military
and police officers from the coverage of reliefs available under the Rule on the Writ of
Amparo. The explicit adoption of the doctrine of command responsibility in the present
case will only bring Manalo and Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to
be if it truly wants to make the Writ of Amparo an effective remedy for victims of
extralegal killings and enforced disappearances or threats thereof. While there is a
genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir.
Gen. Avelino Razon accountable under the command responsibility doctrine, the
ponencia’s hesitant application of the doctrine itself is replete with implications
abhorrent to the rationale behind the Rule on the Writ of Amparo. 82 (Emphasis
supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v.
Cadapan,83 likewise penned by Justice Carpio-Morales, wherein this Court ruled:

Rubrico categorically denies the application of command responsibility in amparo cases

to determine criminal liability. The Court maintains its adherence to this pronouncement
as far as amparo cases are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command

responsibility in amparo cases to instances of determining the responsible or
accountable individuals or entities that are duty-bound to abate any transgression on
the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it

should, at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there
be any.

In other words, command responsibility may be loosely applied in amparo cases in

order to identify those accountable individuals that have the power to effectively
implement whatever processes an amparo court would issue. In such application, the
amparo court does not impute criminal responsibility but merely pinpoint the superiors it
considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a

preliminary determination of criminal liability which, of course, is still subject to further
investigation by the appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent
the actors have been established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced disappearance, and (b)
accountability, or the measure of remedies that should be addressed to those (i) who
exhibited involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or (ii) who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or (iii) those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. Thus,
although there is no determination of criminal, civil or administrative liabilities, the
doctrine of command responsibility may nevertheless be applied to ascertain
responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo

proceedings, it must now be resolved whether the president, as commander-in-chief of
the military, can be held responsible or accountable for extrajudicial killings and
enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following
elements must obtain:

a. the existence of a superior-subordinate relationship between the accused as

superior and the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had
been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent
the criminal acts or punish the perpetrators thereof.84
The president, being the commander-in-chief of all armed forces,85 necessarily
possesses control over the military that qualifies him as a superior within the purview of
the command responsibility doctrine. 86

On the issue of knowledge, it must be pointed out that although international tribunals
apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be
established through circumstantial evidence.87 In the Philippines, a more liberal view is
adopted and superiors may be charged with constructive knowledge. This view is
buttressed by the enactment of Executive Order No. 226, otherwise known as the
Institutionalization of the Doctrine of ‘Command Responsibility’ in all Government
Offices, particularly at all Levels of Command in the Philippine National Police and other
Law Enforcement Agencies (E.O. 226).88 Under E.O. 226, a government official may be
held liable for neglect of duty under the doctrine of command responsibility if he has
knowledge that a crime or offense shall be committed, is being committed, or has been
committed by his subordinates, or by others within his area of responsibility and, despite
such knowledge, he did not take preventive or corrective action either before, during, or
immediately after its commission.89 Knowledge of the commission of irregularities,
crimes or offenses is presumed when (a) the acts are widespread within the
government official’s area of jurisdiction; (b) the acts have been repeatedly or regularly
committed within his area of responsibility; or (c) members of his immediate staff or
office personnel are involved.90

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as

the commander-in-chief of the armed forces, the president has the power to effectively
command, control and discipline the military.91

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through
substantial evidence that former President Arroyo is responsible or accountable for his
abduction. We rule in the negative.

Rodriguez anchors his argument on a general allegation that on the basis of the "Melo
Commission" and the "Alston Report," respondents in G.R. No. 191805 already had
knowledge of and information on, and should have known that a climate of enforced
disappearances had been perpetrated on members of the NPA. 92 Without even
attaching, or at the very least, quoting these reports, Rodriguez contends that the Melo
Report points to rogue military men as the perpetrators. While the Alston Report states
that there is a policy allowing enforced disappearances and pins the blame on the
President, we do not automatically impute responsibility to former President Arroyo for
each and every count of forcible disappearance.93 Aside from Rodriguez’s general
averments, there is no piece of evidence that could establish her responsibility or
accountability for his abduction. Neither was there even a clear attempt to show that she
should have known about the violation of his right to life, liberty or security, or that she
had failed to investigate, punish or prevent it.
Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Court’s
ruling in Razon,94 to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced
in their totality, and to consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason – i.e., to the relevance of
the evidence to the issue at hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic
minimum test.95 (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of
Appeals, the same being supported by substantial evidence. A careful examination of
the records of this case reveals that the totality of the evidence adduced by Rodriguez
indubitably prove the responsibility and accountability of some respondents in G.R. No.
191805 for violating his right to life, liberty and security.

a. The totality of evidence proved by substantial evidence the responsibility or

accountability of respondents for the violation of or threat to Rodriguez’s right to life,
liberty and security.

After a careful examination of the records of these cases, we are convinced that the
Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17th
Infantry Battalion, 5th Infantry Division of the military abducted Rodriguez on 6
September 2009, and detained and tortured him until 17 September 2009.

Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and

straightforward account of his horrific ordeal with the military, detailing the manner in
which he was captured and maltreated on account of his suspected membership in the
NPA.96 His narration of his suffering included an exhaustive description of his physical
surroundings, personal circumstances and perceived observations. He likewise
positively identified respondents 1st Lt. Matutina and Lt. Col. Mina to be present during
his abduction, detention and torture,97 and respondents Cruz, Pasicolan and Callagan
as the CHR representatives who appeared during his release.98

More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in his
Sinumpaang Salaysay dated 16 September 2009,99 wherein he recounted in detail the
circumstances surrounding the victim’s capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr.
Pamugas validate the physical maltreatment Rodriguez suffered in the hands of the
soldiers of the 17th Infantry Battalion, 5th Infantry Division. According to the Certification
dated 12 October 2009 executed by Dr. Ramil,100 she examined Rodriguez in the
Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009 and arrived at
the following findings:

FACE

- 10cm healed scar face right side

- 2cm healed scar right eyebrow (lateral area)

- 2cm healed scar right eye brow (median area)

- 4cm x 2cm hematoma anterior chest at the sternal area right side

- 3cm x 2cm hematoma sternal area left side

- 6cm x 1cm hematoma from epigastric area to ant. chest left side

- 6cm x 1cm hematoma from epigastric area to ant. chest right side

- Multiple healed rashes (brownish discoloration) both forearm

- Multiple healed rashes (brownish discoloration)

- both leg arm

- hip area/lumbar area101

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September

2009, the results of which confirmed that the injuries suffered by the latter were inflicted
through torture. Dr. Pamugas thus issued a Medical Report dated 23 September
2009,102 explicitly stating that Rodriguez had been tortured during his detention by the
military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to
the torture and ill-treatment done to him. The multiple circular brown to dark brown
spots found on both legs and arms were due to the insect bites that he sustained when
he was forced to join twice in the military operations. The abrasions could also be due to
the conditions related during military operations. The multiple pin-point blood spots
found on his left ear is a result of an unknown object placed inside his left ear. The
areas of tenderness he felt during the physical examination were due to the
overwhelming punching and kicking on his body. The occasional difficulty of sleeping is
a symptom experience (sic) by the subject as a result of the psychological trauma he
encountered during his detention.
XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to
the torture and ill-treatment done to him while in detention for about 11 days. The
physical injuries sustained by the subject, of which the age is compatible with the
alleged date of infliction (sic).103 (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the
medical finding that the injuries suffered by Rodriguez matched his account of the
maltreatment inflicted on him by the soldiers of the 17th Infantry Battalion, 5th Infantry
Division of the Philippine Army. Further, the kind of injuries he sustained showed that he
could not have sustained them from merely falling, thus making respondents’ claim
highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the
allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805
still stubbornly clung to their argument that he was neither abducted nor detained.
Rather, they claimed that he was a double agent, whose relationship with the military
was at all times congenial. This contention cannot be sustained, as it is far removed
from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he
should have unhesitatingly assured his family on 17 September 2009 that he was
among friends. Instead, he vigorously pleaded with them to get him out of the military
facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009104 Wilma
executed, she made the following averments:

18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa
dahil sa mukha syang pagod at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag

ko syang iiwan sa lugar na iyon;

xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng
dalawang linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob
ng kampo;

24. Na hindi ako pumayag na maiwan ang aking anak;

xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa

kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx105
 Also, Rodel made the following supporting averments in his Sinumpaang
Salaysay dated 3 December 2009:106

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina

sya, malaki ang ipinayat at nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil
nakilala ko syang masigla at masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako dito,
papatayin nila ako."

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang
linggo ang aking kapatid sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx107

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly
contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had
complained of his exhaustion from his activities as a member of the CPP-NPA, he
nevertheless willingly volunteered to return to his life in the NPA to become a double-
agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to
his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he
experienced in the wilderness, and that he wanted to become an ordinary citizen again
because of the empty promises of the CPP-NPA. However, in the same Return,
respondents state that petitioner agreed to become a double agent for the military and
wanted to re-enter the CPP-NPA, so that he could get information regarding the
movement directly from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he would agree to
become an undercover agent and work alongside soldiers in the mountains – or the
wilderness he dreads – to locate the hideout of his alleged NPA
comrades.108 (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction,
detention and torture of Rodriguez, respondents, specifically 1st Lt. Matutina, had
violated and threatened the former’s right to security when they made a visual recording
of his house, as well as the photos of his relatives, to wit:

In the videos taken by the soldiers – one of whom was respondent Matutina – in the
house of petitioner on September 18, 2009, the soldiers even went as far as taking
videos of the photos of petitioner’s relatives hung on the wall of the house, as well as
videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking
the said videos, did not merely intend to make proofs of the safe arrival of petitioner and
his family in their home. 1Lt. Matutina also desired to instill fear in the minds of
petitioner and his family by showing them that the sanctity of their home, from then on,
will not be free from the watchful eyes of the military, permanently captured through the
medium of a seemingly innocuous cellhpone video camera. The Court cannot – and will
not – condone such act, as it intrudes into the very core of petitioner’s right to security
guaranteed by the fundamental law.109 (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the
contradictory defenses presented by respondents in G.R. No. 191805, give credence to
his claim that he had been abducted, detained and tortured by soldiers belonging to the
17th Infantry Battalion, 5th Infantry Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan,
there was no substantial evidence to show that they violated, or threatened with
violation, Rodriguez’s right to life, liberty and security. Despite the dearth of evidence to
show the CHR officers’ responsibility or accountability, this Court nonetheless
emphasizes its criticism as regards their capacity to recognize torture or any similar
form of abuse. The CHR, being constitutionally mandated to protect human rights and
investigate violations thereof,110 should ensure that its officers are well-equipped to
respond effectively to and address human rights violations. The actuations of
respondents unmistakably showed their insufficient competence in facilitating and
ensuring the safe release of Rodriguez after his ordeal.

b. The failure to conduct a fair and effect investigation amounted to a violation of or

threat to Rodriguez’s rights to life, liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right
to life, liberty and security may be caused by either an act or an omission of a public
official.111 Moreover, in the context of amparo proceedings, responsibility may refer to
the participation of the respondents, by action or omission, in enforced
disappearance.112 Accountability, on the other hand, may attach to respondents who are
imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. 113

In this regard, we emphasize our ruling in Secretary of National Defense v.

Manalo114 that the right to security of a person includes the positive obligation of the
government to ensure the observance of the duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the
government. In the context of the writ of Amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the
right to security of person (as freedom from threat and guarantee of bodily and
psychological integrity) under Article III, Section 2. The right to security of person in this
third sense is a corollary of the policy that the State "guarantees full respect for human
rights" under Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of the rights to life,
liberty and security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-
American Court of Human Rights stressed the importance of investigation in the
Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government.

xxx xxx xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to
security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing
a positive duty on the State to afford protection of the right to liberty. The ECHR
interpreted the "right to security of person" under Article 5(1) of the European
Convention of Human Rights in the leading case on disappearance of persons, Kurt v.
Turkey. In this case, the claimant's son had been arrested by state authorities and had
not been seen since. The family's requests for information and investigation regarding
his whereabouts proved futile. The claimant suggested that this was a violation of her
son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an arguable
claim that a person has been taken into custody and has not been seen
since.115 (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are
responsible or accountable for the violation of Rodriguez’s right to life, liberty and
security on account of their abject failure to conduct a fair and effective official
investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG.
Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only
conducted a perfunctory investigation, exerting no efforts to take Ramirez’s account of
the events into consideration. Rather, these respondents solely relied on the reports
and narration of the military. The ruling of the appellate court must be emphasized:
In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and
Mina are accountable, for while they were charged with the investigation of the subject
incident, the investigation they conducted and/or relied on is superficial and one-sided.
The records disclose that the military, in investigating the incident complained of,
depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt.
Johnny Calub for the Commanding Officer of the 501st Infantry Brigade, 5th Infantry
Division, Philippine Army. Such report, however, is merely based on the narration of the
military. No efforts were undertaken to solicit petitioner’s version of the subject incident
and no witnesses were questioned regarding the alleged abduction of petitioner.

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of

Republic Act No. 6975, otherwise known as the "PNP Law," specifies the PNP as the
governmental office with the mandate "to investigate and prevent crimes, effect the
arrest of criminal offenders, bring offenders to justice and assist in their prosecution." In
this case, PDG Verzosa failed to order the police to conduct the necessary investigation
to unmask the mystery surrounding petitioner’s abduction and disappearance. Instead,
PDG Verzosa disclaims accountability by merely stating that petitioner has no cause of
action against him. Palpable, however, is the lack of any effort on the part of PDG
Verzosa to effectively and aggressively investigate the violations of petitioner’s right to
life, liberty and security by members of the 17th Infantry Battalion, 17th Infantry Division,
Philippine Army.116 (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of
Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must
be held responsible or accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any

responsibility or accountability on the part of respondents P/CSupt. Tolentino, P/SSupt.
Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already retired when
the abduction and torture of Rodriguez was perpetrated, while P/SSupt. Santos had
already been reassigned and transferred to the National Capital Regional Police Office
six months before the subject incident occurred. Meanwhile, no sufficient allegations
were maintained against respondents Calog and Palacpac.

From all the foregoing, we rule that Rodriguez was successful in proving through
substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj.
Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina were responsible
and accountable for the violation of Rodriguez’s rights to life, liberty and security on the
basis of (a) his abduction, detention and torture from 6 September to 17 September
2009, and (b) the lack of any fair and effective official investigation as to his allegations.
Thus, the privilege of the writs of amparo and habeas data must be granted in his favor.
As a result, there is no longer any need to issue a temporary protection order, as the
privilege of these writs already has the effect of enjoining respondents in G.R. No.
191805 from violating his rights to life, liberty and security.
It is also clear from the above discussion that despite (a) maintaining former President
Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the application of
the command responsibility doctrine to amparo and habeas data proceedings,
Rodriguez failed to prove through substantial evidence that former President Arroyo
was responsible or accountable for the violation of his rights to life, liberty and property.
He likewise failed to prove through substantial evidence the accountability or
responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805
and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of
Appeals is hereby AFFIRMED WITH MODIFICATION.

The case is dismissed with respect to respondents former President Gloria Macapagal-
Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George
Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for lack of merit.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of
Justice (DOJ) to take the appropriate action with respect to any possible liability or
liabilities, within their respective legal competence, that may have been incurred by
respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen.
Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and Lt. Col.
Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the
results of their action within a period of six months from receipt of this Decision.

In the event that herein respondents no longer occupy their respective posts, the
directives mandated in this Decision and in the Court of Appeals are enforceable
against the incumbent officials holding the relevant positions. Failure to comply with the
foregoing shall constitute contempt of court.

SO ORDERED.

Saluday v. CA

The Case

Before the Court is a Petition for Review on Certiorari assailing the Decision dated 26
June 2014 1 and the Resolution dated, 15 October 20142 of the Court of Appeals in CA-
G.R. CR No. 01099. The Court of Appeals affirmed with modification the Sentence
dated 15 September 2011 3 rendered by the Regional Trial Court, Branch 11, Davao
City in Criminal CaseNo. 65, 734-09, finding petitioner Marcelo G. Saluday (petitioner)
guilty beyond reasonable doubt of illegal possession of high-powered firearm,
ammunition, and explosive under Presidential Decree No. 1866,4 as amended (PD
1866).
 The Ruling of this Court

We affirm.

Only questions of law may be raised in a petition for review on certiorari under Rule 45
of the Rules of Court.19 As a result, the Court, on appeal, is not duty-bound to weigh and
sift through the evidence presented during trial. 20 Further, factual findings of the trial
court, when affirmed by the Court of Appeals, are accorded great respect, even
finality. 21

Here, petitioner assails his conviction for illegal possession of high-powered firearm and
ammunition under PD 1866, and illegal possession of explosive under the same law.
The elements of both offenses are as follows: (1) existence of the firearm, ammunition
or explosive; (2) ownership or possession of the firearm, ammunition or explosive; and
(3) lack of license to own or possess.22 As regards the second and third elements, the
Corn1: of Appeals concurred with the trial court that petitioner was in actual or
constructive possession of a high-powered firearm, ammunition, and explosive without
the requisite authority. The Decision dated 26 June 2014 reads in pertinent part:

In the present case, the prosecution proved the negative fact that appellant has no
license or permit to own or possess the firearm, ammunition and explosive by
presenting NUP Daniel Tab[u]ra (Tab[u]ra), a representative of the Firearms and
Explosives Division (FED) of the PNP. He identified the Certification issued by the
Chief. Records Section. FED of the PNP, stating that appellant "is not a
licensed/registered holder of any kind and caliber per verification from records of this
office."

Appellant, however, questions the competence of Tab[u]ra to testify on the veracity or

truthfulness of the Ce1tification. He claims that the officer who issued it should have
been the one presented so he would not be denied the right to confront and cross-
examine the witnesses against him.

There is no merit to petitioner's claim. The following is pertinent:

xxxx

The Court on several occasions ruled that either the testimony of a representative of, or
a certification from, the Philippine National Police (PNP) Firearms and Explosive Office
attesting that a person is not a licensee of any firearm would suffice to prove beyond
reasonable doubt the second element of possession of illegal firearms. The prosecution
more than complied when it presented both.

xxxx
Also, appellant denies having physical or constructive possession of the firearms,
ammunition and explosive. However, his denial flies in the face of the following
testimonies which he himself made:

xxxx

Appellant gave information, albeit misleading, on the contents of the bag. He even
allowed the police officer to open it. Based on his actuations, there could be no doubt
that he owned the bag containing the firearm, ammunition and explosive.

Shifting the blame to his dead brother is very easy for appellant to fabricate. Besides,
the allegation that his brother owned the bag is uncorroborated and self-serving. 23

As above-quoted, the presence of the second and third elements of illegal possession
of firearm, ammunition, and explosive raises questions of fact. Considering further that
the Court of Appeals merely echoed the factual findings of the trial court, the Court finds
no reason to disturb them.

As regards the first element, petitioner corroborates the testimony of SCAA Buco on
four important points: one, that petitioner was a passenger of the bus flagged down on 5
May 2009 at a military checkpoint in Ilang, Davao City; two, that SCAA Buco boarded
and searched the bus; three, that the bus conductor pointed at petitioner as the owner
of a small, gray-black pack bag on the back seat of the bus; and four, that the same bag
contained a .30-caliber firearm with one magazine loaded who three live ammunitions,
and a hand grenade. Notably, petitioner does not challenge the chain of custody over
the seized items. Rather, he merely raises a pure question of law and argues that they
are inadmissible on the ground that the search conducted by Task Force Davao was
illegal.

The Court disagrees.

Section 2, Article Ill of the Constitution, which was patterned after the Fourth
Amendment to the United States (U.S.) Constitution,24 reads:

SEC. 2. 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.
(Emphasis supplied)

Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it operates

against "unreasonable" searches and seizures only. 25
Conversely, when a search is "reasonable," Section 2, Article HI of the Constitution
does not apply. As to what qualifies as a reasonable search, the pronouncements of the
U.S. Supreme Court, which are doctrinal in this jurisdiction,26 may shed light on the
matter.

In the seminal case of Katz v. United States, 27 the U.S. Supreme Court held that the
electronic surveillance of a phone conversation without a warrant violated the Fourth
Amendment. According to the U.S. Supreme Court, what the Fourth Amendment
protects are people, not places such that what a person knowingly exposes to the
public, even in his or her own home or office, is not a subject of Fourth Amendment
protection in much the same way that what he or she seeks to preserve as private, even
in an area accessible to the public, may be constitutionally protected, thus:

Because of the misleading way the issues have been formulated, the parties have
attached great significance to the characterization of the telephone booth from which
the petitioner placed his calls. The petitioner has strenuously argued that the booth was
a "constitutionally protected area." The Government has maintained with equal vigor
that it was not. But this effo1i to decide whether or not a given "area,'' viewed in the
abstract, is "constitutionally protected" deflects attention from the problem presented by
this case. For the Fourth Amendment protects people, not places. What a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United
States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected. See Rios v. United
States, 364 U.S. 253; £:y; parte Jackson, 96 U.S. 727, 733.28 (Emphasis supplied)

Further, Justice John Harlan laid down in his concurring opinion the two-part test that
would trigger the application of the Fourth Amendment. First, a person exhibited an
actual (subjective) expectation of privacy.29 Second, the expectation is one that society
is prepared to recognize as reasonable (objective).30

The prohibition of unreasonable search and seizure ultimately stems from a person's
right to privacy. Hence, only when the State intrudes into a person's expectation of
privacy, which society regards as reasonable, is the Fourth Amendment triggered.
Conversely, where a person does not have an expectation of privacy or one's
expectation of privacy is not reasonable to society, the alleged State intrusion is not a
"search" within the protection of the Fourth Amendment.

A survey of Philippine case law would reveal the same jurisprudential reasoning. To
illustrate, in People v. Johnson,31 the Court declared airport searches as outside the
protection of the search and seizure clause due to the lack of an expectation of privacy
that society will regard as reasonable:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation
of privacy, which expectation society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. With increased concern over
airplane hijacking and terrorism has come increased security at the nation's airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their
carry-on baggage as well as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious objects. physical searches
are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel.
Indeed, travelers are often notified through airport public address systems, signs. and
notices in their airline tickets that they are subject to search and, if any prohibited
materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional protections
against warrantless searches and seizures do not apply to routine airport
procedures.32 (Citations omitted)

Similarly, in Dela Cruz v. People,33 the Court described seaport searches as reasonable
searches on the ground that the safety of the traveling public overrides a person's right
to privacy:

Routine baggage inspections conducted by port authorities, although done without

search warrants, are not unreasonable searches per se. Constitutional provisions
protecting privacy should not be so literally understood so as to deny reasonable
safeguards to ensure the safety of the traveling public.

xxxx

Thus, with port security personnel's functions having the color of state-related functions
and deemed agents of government, Marti is inapplicable in the present case.
Nevertheless, searches pursuant to port security measures are not unreasonable per
se. The security measures of x-ray scanning and inspection in domestic ports are akin
to routine security procedures in airports.

xxxx

Port authorities were acting within their duties and functions when [they] used x-ray
scanning machines for inspection of passengers' bags. When the results of the x-ray
scan revealed the existence of firearms in the bag, the port authorities had probable
cause to conduct u search of petitioner's bag. Notably, petitioner did not contest the
results of the x-ray scan.34

In People v. Breis,35 the Court also justified a bus search owing to the reduced
expectation of privacy of the riding public:

Unlike the officer in Chan Fook, IO1 Mangili did not exceed his authority in the
performance of his duty. Prior to Breis' resistance, IO1 Mangili laid nary a finger on
Breis or Yurnol. Neither did his presence in the bus constitute an excess of authority.
The bus is public transportation, and is open to the public. The expectation of privacy in
relation to the constitutional right against unreasonable searches in a public bus is not
the same as that in a person's dwelling. In fact, at that point in time, only the bus was
being searched, not Yumol, Breis, or their belongings, and the search of moving
vehicles has been upheld.36

Indeed, the reasonableness of a person's expectation of privacy must be determined on

a case-to-case basis since it depends on the factual circumstances surrounding the
case.37 Other factors such as customs, physical surroundings and practices of a
particular activity may diminish this expectation.38 In Fortune Express, Inc. v. Court of
Appeals,39 a common carrier was held civilly liable for the death of a passenger due to
the hostile acts of armed men who boarded and subsequently seized the bus. The
Could held that "simple precautionary measures to protect the safety of passengers,
such as frisking passengers and inspecting their baggages, preferably with non-
intrusive gadgets such as metal detectors, before allowing them on board could have
been employed without violating the passenger's constitutional rights." 40 In Costabella
Corp. v. Court of Appeals,41 a compulsory right of way was found improper for the
failure of the owners of the dominant estate to allege that the passageway they sought
to be re-opened was at a point least prejudicial to the owner of the servient estate. The
Court thus explained, ''[c]onsidering that the petitioner operates a hotel and beach
resort in its property, it must undeniably maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy, and safety of its clients and patrons
would be compromised."42 Similarly, shopping malls install metal detectors and body
scanners, and require bag inspection as a requisite for entry. Needless to say, any
security lapse on the part of the mall owner can compromise public safety.

Concededly, a bus, a hotel and beach resort, and a shopping mall are all private
property whose owners have every right to exclude anyone from entering. At the same
time, however, because these private premises are accessible to the public, the State,
much like the owner, can impose non-intrusive security measures and filter those going
in. The only difference in the imposition of security measures by an owner and the State
is, the former emanates from the attributes of ownership under Article 429 of the Civil
Code, while the latter stems from the exercise of police power for the promotion of
public safety. Necessad1y, a person's expectation of privacy is diminished whenever he
or she enters private premises that arc accessible to the public.

In view of the foregoing, the bus inspection conducted by Task Force Davao at a
military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro Shuttle
was a vehicle of public transportation where passengers have a reduced expectation of
privacy. Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally
intrusive inspection was even less than the standard x-ray and physical inspections
done at the airport and seaport terminals where passengers may further be required to
open their bags and luggages. Considering the reasonableness of the bus search,
Section 2, Article III of the Constitution finds no application, thereby precluding the
necessity for a warrant.
As regards the warrantless inspection of petitioner's bag, the OSG argues that petitioner
consented to the search) thereby making the seized items admissible in
evidence.43 Petitioner contends otherwise and insists that his failure to object cannot be
construed as an implied waiver.

Petitioner is wrong.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a

personal right, which may be waived.44 However, to be valid, the consent must be
voluntary such that it is unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion.45 Relevant to this determination of voluntariness are the
following characteristics of the person giving consent and the environment in which
consent is given: (a) the age of the consenting party; (b) whether he or she was in a
public or secluded location; (c) whether he or she objected to the search or passively
looked on;46 (d) his or her education and intelligence; (e) the presence of coercive police
procedures; (f) the belief that no incriminating evidence will be found; 47 (g) the nature of
the police questioning; (h) the environment in which the questioning took place; and (i)
the possibly vulnerable subjective state of the person consenting.48

In Asuncion v. Court of Appeals,49the apprehending officers sought the permission of

petitioner to search the car, to which the latter agreed. According to the Court, petitioner
himself freely gave his consent to the search. In People v. Montilla, 50 the Court found
the accused to have spontaneously performed affirmative acts of volition by opening the
bag without being forced or intimidated to do so, which acts amounted to a clear waiver
of his right. In People v. Omaweng,51 the police officers asked the accused if they could
see the contents of his bag, to which the accused said "you can see the contents but
those are only clothings." The policemen then asked if they could open and see it, and
the accused answered "you can see it." The Court held there was a valid consented
search.

Similarly in this case, petitioner consented to the baggage inspection done by SCAA
Buco. When SCAA Buco asked if he could open petitioner's bag, petitioner
answered ''yes, just open if' based on petitioner's own testimony. This is clear consent
by petitioner to the search of the contents of his bag. In its Decision dated 26 June
2014, the Court of Appeals aptly held:

A waiver was found in People v. Omaweng. There, the police officers asked the
accused if they could see the contents of his bag and he answered "you can see the
contents but those are only clothings.'' When asked if they could open and see it, he
said "you can see it." In the present case, accused-appellant told the member of the
task force that "it was only a cellphone" when asked who owns the bag and what are its
contents. When asked by the member of the task force if he could open it, accused-
appellant told him "yes, just open it." Hence, as in Omaweng, there was a waiver of
accused-appellants right against warrantless search.52
To emphasize, a reasonable search, on the one hand, and a warrantless search, on the
other, are mutually exclusive. While both State intrusions are valid even without a
warrant, the underlying reasons for the absence of a warrant are different. A reasonable
search arises from a reduced expectation of privacy, for which reason Section 2, Article
III of the Constitution finds no application. Examples include searches done at airports,
seaports, bus terminals, malls, and similar public ·places. In contrast, a warrantless
search is presumably an "unreasonable search," but for reasons of practicality, a search
warrant can be dispensed with. Examples include search incidental to a lawful arrest,
search of evidence in plain view, consented search, and extensive search of a private
moving vehicle.

Further, in the conduct of bus searches, the Court Jays down the following
guidelines.1âwphi1 Prior to entry, passengers and their bags and luggages can be
subjected to a routine inspection akin to airport and seaport security protocol. In this
regard, metal detectors and x-ray scanning machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of electronic scanners, passengers can be
required instead to open their bags and luggages for inspection, which inspection must
be made in the passenger's presence. Should the passenger object, he or she can
validly be refused entry into the terminal.

While in transit, a bus can still be searched by government agents or the security
personnel of the bus owner in the following three instances. First, upon receipt of
information that a passenger carries contraband or illegal articles, the bus where the
passenger is aboard can be stopped en route to allow for an inspection of the person
and his or her effects. This is no different from an airplane that is forced to land upon
receipt of information about the contraband or illegal articles carried by a passenger
onboard. Second, whenever a bus picks passengers en route, the prospective
passenger can be frisked and his or her bag or luggage be subjected to the same
routine inspection by government agents or private security personnel as though the
person boarded the bus at the terminal. This is because unlike an airplane, a bus is able
to stop and pick passengers along the way, making it possible for these passengers to
evade the routine search at the bus terminal. Third, a bus can be flagged down at
designated military or police checkpoints where State agents can board the vehicle for a
routine inspection of the passengers and their bags or luggages.

In both situations, the inspection of passengers and their effects prior to entry at the bus
terminal and the search of the bus while in transit must also satisfy the following
conditions to qualify as a valid reasonable search. First, as to the manner of the search,
it must be the least intrusive and must uphold the dignity of the person or persons being
searched, minimizing, if not altogether eradicating, any cause for public embarrassment,
humiliation or ridicule. Second, neither can the search result from any discriminatory
motive such as insidious profiling, stereotyping and other similar motives. In all
instances, the fundamental rights of vulnerable identities, persons with disabilities,
children and other similar groups should be protected. Third, as to the purpose of the
search, it must be confined to ensuring public safety. Fourth, as to the evidence seized
from the reasonable search, courts must be convinced that precautionary measures
were in place to ensure that no evidence was planted against the accused.

The search of persons in a public place is valid because the safety of others may be put
at risk. Given the present circumstances, the Court takes judicial notice that public
transport buses and their terminals, just like passenger ships and seaports, are in that
category.

Aside from public transport buses, any moving vehicle that similarly accepts passengers
at the terminal and along its route is likewise covered by these guidelines. Hence,
whenever compliant with these guidelines, a routine inspection at the terminal or of the
vehicle itself while in transit constitutes a reasonable search. Otherwise, the intrusion
becomes unreasonable, thereby triggering the constitutional guarantee under Section 2,
Article III of the Constitution.

To emphasize, the guidelines do not apply to privately-owned cars. Neither are they
applicable to moving vehicles dedicated for private or personal use, as in the case of
taxis, which are hired by only one or a group of passengers such that the vehicle can no
longer be flagged down by any other person unti1 the passengers on board alight from
the vehicle.

WHEREFORE, the petition is DENIED. The Decision dated 26 June 2014 and the
Resolution dated 15 October 2014 of the Court of Appeals in CA-G.R. CR No. 01099
are AFFIRMED.

SO ORDERED.
Jimenez c. Cabangbang

Defendant Cabangbang was a member of the House of Representatives and Chairman

of its Committee on National Defense. He wrote an open letter to the President and
caused its publication in several newspapers of general circulation exposing the
allegedly operational plans by some ambitious AFP officers regarding a
massive political build-up of then Secretary of National Defense, Jesus Vargas, to
prepare him to become a candidate for President in 1961.

Ruling:
The determination of the issue depends on whether or not the publication falls within the
purview of the phrase “speech or debate in Congress” as used in Art. VI, Sec. 15 (now
Sec. 11). Said expression refers to utterances made by Congressmen in the
performance of their official functions, such as speeches delivered, statements made, or
votes cast in the halls of Congress, while the same is in session, as well as bills
introduced in Congress, whether the same is in session or not, and other
acts performed by Congressmen, either in Congress or outside the premises housing its
offices, in the official discharge of their duties as members of Congress and of
Congressional Committees duly authorized to perform its functions as such, at the time
of the performance of the acts in question.

The publication involved in this case does not belong to this category. It was an open
letter to the President, when Congress presumably was not in session,
and defendant caused said letter to be published in several newspapers of general
circulation. In causing the communication to be so published, he was not performing his
official duty, either as a member of the Congress or as officer of any committee thereof.
Hence, said communication is not absolutely privileged.