Republic of the Philippines SUPREME COURT

Manila

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,

For: Certiorari and Prohibition with

Prayer for Injunction and/or TRO

GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE. Respondents. x------------------------------------------x

PETITION FOR CERTIORARI and PROHIBITION

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A popular government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.1

-James Madison (1822).

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.2

- Mr. Justice Hughes

STATEMENT OF THE CASE

1. This is a special civil action assailing the constitutionality of

Proclamation No. 1017 and General Order No. 5 issued by Gloria Macapagal Arroyo, President of the Philippines, on 24 February 2006, declaring a state of emergency and directing the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) to “immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.”

2. At issue in the instant case is the constitutionality of Proclamation No. 1017 and General Order No. 5 insofar as they effectively impose a de facto state of martial law without following the requirements for such imposition mandated under Article VII, Section 18 of the Constitution, and as they arbitrarily and invalidly impinge on constitutionally-protected rights to the freedoms of speech, of the press, and of assembly.

1As quoted in ANTHONY LEWIS, MAKE NO LAW, THE SULLIVAN CASE AND THE FIRST AMENDMENT, 234 (1991). 2 De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

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PARTIES

3. The Petitioner Prof. Randolf S. David, of No. 17 Gomburza St. UP Campus, Diliman, Quezon City, is a professor of sociology at the UP Department of Sociology who is suing as a citizen already directly injured by the questioned presidential proclamation.

4. The Petitioner Rep. Lorenzo Tanada III (4th Dist. Quezon

Province) is suing as a member of the House of Representatives of the 13th Congress denied his powers and privileges as a legislator under the Constitution.

5. The Petitioner Ronald Llamas, of No. 101 Matahimik St., UP Village, Quezon City, is the First National President of the party-list group Akbayan (Citizens’ Action Party) suing on his own behalf as a citizen already directly injured by the questioned presidential proclamation.

6. The Petitioners below, filing the instant Petition in propria personae, are members of the Roque and Butuyan Law Offices. They are members in good standing of the Integrated Bar of the Philippines, who, as officers of the court, and as taxpayers and citizens, have a direct interest in the faithful adherence to constitutional processes of public officers, especially the Chief Executive. Too, they are suing because their rights as citizens to freedom of expression and to peaceably assemble to petition the government for redress of grievances are being curtailed by the questioned presidential proclamation:

6.1. Herminio Harry L. Roque Jr.; 6.2 Joel Ruiz Butuyan; 6.3 Roger R. Rayel; 6.4 Gary S. Mallari; 6.5 Romel Regalado Bagares; and

6.6 Christopher F.C. Bolastig.

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7. All of the Petitioners may be served with summonses and notices of this Honorable Court through the addresses of their counsel as stated below.

8. Respondent Gloria M. Arroyo is impleaded herein as

President of the Republic of the Philippines and as Commander-in-Chief of the Armed Forces of the Philippines. She may be served with summonses and notices of this Honorable Court at Malacañang, Manila.

9. Respondent Eduardo Ermita is impleaded herein as Executive

Secretary of the Office of the President. He may be served with summonses and notices of this Honorable Court at Malacañang, Manila.

10. Respondent Avelino Cruz II is impleaded herein as Secretary

of National Defense. He may be served with summonses and notices of this Honorable Court at Camp Aguinaldo, Quezon City.

11. Respondent Generoso Senga is impleaded herein as Chief of

Staff of the Armed Forces of the Philippines. He may be served with summonses and notices of this Honorable Court at Camp Aguinaldo, Quezon City.

12. Respondent Arturo Lomibao is impleaded herein as Chief of

the Philippine National Police. He may be served with summonses and notices of this Honorable Court at Camp Crame, Quezon City.

STATEMENT OF FACTS

13. On 24 February 2006, Gloria Macapagal Arroyo issued Proclamation No. 1017 declaring a national state of emergency. This was immediately followed by the issuance of General Order No. 5 directing the AFP and PNP to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. The questioned proclamation as well as the general order are matters of judicial notice.

14. The basis for both issuances was ostensibly a conspiracy

between “elements in the political opposition,” “the extreme Left represented by the NDF-CPP-NPA,” and “the extreme Right represented by military adventurists” to bring down the duly-constituted government.

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15. While neither issuance, on its face, expressly grants additional powers to the Executive, nor states its effects, if any, on existing procedures governing arrest, search, and seizure as provided for under various statutes and the Rules of Court, various administration officials have publicly stated that Proclamation No. 1017 and General Order No. 5 authorize the Executive to effect warrantless arrests, disperse peacefull assemblies, revoke rally permits and seize property without complying with currently mandated requirements.

16. Minutes after the issuance of Proclamation No. 1017,

Presidential Chief of Staff Michael Defensor announced that warrantless arrests and the [government] takeover of facilities, including media, can now be implemented pursuant to the declaration of a state of emergency.

17. The following day, 25 February 2006, PNP Director General

Arturo Lomibao announced that the PNP was empowered to take over media institutions “that do not follow [government] standards,” pursuant to the authority granted under General Order No. 5.

18. Beyond mere statements claiming additional powers, the

Executive has in fact taken actions, in flagrant disregard of constitutionally guaranteed civil rights and procedural and statutory requirements, ostensibly on the strength of “authority” derived from Proclamation No. 1017 and General Order No. 5.

19. On 24 February 2006, the President unilaterally cancelled all

permits for public assembly already granted by various local government units and imposed a blanket prohibition on all forms of public assembly.

20. The same day, several public assemblies along EDSA

commemorating the 20th anniversary of the February Revolution were violently dispersed on the basis of this prohibition. Eighty-four (84) persons, including UP Professor Randolph David, Akbayan Citizens Action Party First National President Ronald Llamas, and lawyer Argee Guevara, were arrested without warrant by plainclothes operatives of the Quezon City Police District (QCPD) who cited Proclamation No. 1017 as the basis for the arrest. At least 15 minors were included in those arrested.

21. At around 12:30 am of 25 February 2006, elements of the

PNP forcibly entered the offices of the Daily Tribune, a national newspaper, and seized documents and equipment. As of the time of the filing of this petition, PNP officers remain

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at the Tribune offices “as a reminder to media not to aid those who want to overthrow the government.”

22. The foregoing demonstrates that Proclamation No. 1017 and

General Order No.5 have been utilized by the Executive to effectively impose a de facto state of martial law without complying with the mandated constitutional requirements and in contravention of the constitutionally set safeguards. Hence, this petition.

ARGUMENTS

I

PETITIONERS HAVE STANDING TO FILE THE INSTANT PETITION FOR CERTIORARI AND PROHIBITION

II

THE CONTROVERSY IS SUFFICIENTLY RIPE FOR THE HIGH COURT’S ADJUDICATION.

III

THE FILING OF THE INSTANT PETITION DOES NOT VIOLATE THE HIERARCHY OF COURTS,

GIVEN THE URGENCY AND THE NATURE OF THE ISSUES INVOLVED.

IV

THE PETITION INVOLVES MATTERS OF PUBLIC INTEREST AND TRANSCENDENTAL IMPORTANCE SUCH AS WOULD

JUSTIFY A RELAXATION OF PROCEDURAL REQUIREMENTS FOR CONSTITUTIONAL ADJUDICATION.

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V

PROCLAMATION 1017 DEROGATES AND INFRINGES ON THE POWER OF CONGRESS TO EXERCISE ITS EMERGENCY

POWERS, THUS IMPAIRING THE LAWMAKERS’ LEGISLATIVE POWERS.

VI

THE ISSUANCE OF PROCLAMATION 1017 IS A SUBTERFUGE TO AVOID THE CONSTITUTIONAL REQUIREMENTS FOR THE IMPOSITION OF MARTIAL LAW OR SUSPENSION OF THE

PRIVILEGE OF THE WRIT OF HABEAS CORPUS, AS WELL AS AVOID CONGRESSIONAL SCRUTINY INTO THE PRESIDENT’S

EXERCISE OF MARTIAL LAW POWERS.

VII

PROCLAMATION 1017 VIOLATES THE CONSTITUTIONAL GUARANTEES OF FREEDOMS OF THE PRESS, OF SPEECH AND

OF ASSEMBLY.

VIII

PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A WRIT OR PRELIMINARY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER AGAINST RESPONDENTS, DIRECTING THEM TO REFRAIN FROM IMPLEMENTING THE

QUESTIONED PRESIDENTIAL ORDER UNTIL SUCH TIME THAT THE ISSUES PRESENTED IN THIS INSTANT SUIT ARE

RESOLVED BY THIS HONORABLE COURT.

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DISCUSSION

I. PETITIONERS HAVE STANDING TO FILE THE INSTANT PETITION FOR CERTIORARI AND PROHIBITION.

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23. Petitioners Prof. David and Mr. Llamas have already suffered and are suffering actual injury as a result of the arbitrary implementation of the questioned presidential proclamation.

24. As citizens, their rights to free expression and to peaceably assemble and petition the government for redress of grievances have been arbitrarily denied and are still being denied them. These are rights protected by the Bill of Rights of the Constitution.

25. Petitioner Tañada is filing this Petition on the legal doctrine that legislators have standing to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their office,3 and are allowed to sue to question the validity of any official action which infringes their prerogatives as to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. As the Supreme Court held in Sanlakas et al., v. Reyes, et al. :

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.4

26. Petitioners Roque, Butuyan, Rayel, Mallari, Bagares, and

Bolastig, as citizens, have standing to file the instant suit. In a host of jurisprudence locus standi means a personal and substantial interest in the case such that the party has

3 Del Mar v. PAGCOR, G.R. No.138298, November 29, 2000. 4A consolidated ruling on three cases involving the same issues in G.R. No. 159085. February 3, 2004; G.R. No. 159196, February 3, 2004; and G.R. No. 159196. February 3, 2004, citing Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506.(1994).

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sustained or will sustain direct injury as a result of the act being challenged.5 Otherwise stated, a proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.6 Thus, for a party to have personal standing, he need only prove, first, injury to his right or interest7, and second, a "fairly traceable" causal connection between the claimed injury and the challenged conduct.8

27. With regard to the first requisite, which requires injury in fact,9 there is no rigid rule as to what may constitute such injury: It may refer to aesthetic or environmental injury10 or pertain to a "spiritual stake" in the values of the Constitution,11 and may be held to exist when the assailed administrative ruling entail future loss of profits.12 Indeed, even the mere fact that many people suffer the same injury claimed does not preclude a finding that the requisite standing exists.13 As for the second requisite, it is complied with when the Petitioners show that there is a substantial likelihood that the relief requested will redress the claimed injury.14 Even if the line of causation between the injury and the conduct is attenuated, even the existence of "an identifiable trifle" is sufficient for meeting this requisite.15

28. As human beings and as Philippine citizens, the Petitioners

have the inalienable rights to personal security. These rights are guaranteed under Philippine law16 and are recognized under international law.17Furthermore, under international

5 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999. 6 ISAGANI CRUZ, CONSTITUTIONAL LAW 25 (2000), citing Ex Parte Levitt, 303 US 633. 7 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; CRUZ, Id.,at 25; Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 8Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 9 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in RONALD ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed., 1989) [Hereinafter, ROTUNDA]. 10 JOHN E. NOWAK AND RONALD ROTUNDA, CONSTITUTIONAL LAW 78 (4th ed., 1991), citing Sierra Club v. Morton, 405 U.S. 727 (1972).[Hereinafter, NOWAK & ROTUNDA]. 11 Id., at 77 12 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970), cited in ROTUNDA, supra note 8, at 1054 13 Sierra Club v. Morton, 405 U.S. 727 (1972) , cited in NOWAK AND ROTUNDA, supra note 9, at 78. 14NOWAK & ROTUNDA, supra note 9, at 76, Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978). 15 ROTUNDA, supra note 8, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973). 16 CONST. art. III, sec. 1; Biscarra v. Republic, G.R. No. L-43425, January 22, 1980; Floresca v. Philex Mining Corporation, G.R. No. L-30642, April 30, 1985. 17 Universal Declaration of Human Rights, art. 3, UN General Assembly Resolution 217A (III), 10 December 1948; International Covenant on Civil and Political Rights, 993 U.N.T.S. 3, art. 2, 6(1) [hereinafter ICCPR]. See also American Convention of Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970), art. 1, 4(1), 5(1); European Convention for Protection of Human Rights and Fundamental Freedoms, Nov.4, 1950, arts. 1, 2, 312 U.N.T.S. 221, ETS no. 5.

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law, individuals have the right to be provided with ample remedies for the protection of these rights.18

29. In the instant petition, Petitioners assert their fundamental rights guaranteed by the Constitution and international law and injured by Respondents' actions, which injury may be redressed by the issuance of a writ of prohibition. Thus, the Petitioners have the standing to file the instant petition. As the Honorable Court held in the landmark case of Francisco, Jr. et al v. House of Representatives,

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statue or act complained of. In fine, when the proceeding

involves the assertion of a public right, the mere

fact that he is a citizen satisfies the requirement of

personal interest. 19[emphasis supplied].

30. Moreover, the acts being assailed in the instant suit are acts that contravene fundamental rights of citizens against the diminution of civil liberties; the acts being assailed are unconstitutional acts of the Chief Executive that encroach upon the powers of the legislature.

II. THE CONTROVERSY IS SUFFICIENTLY RIPE FOR THE HIGH COURT’S ADJUDICATION ----------------------------------------------

18 See Universal Declaration of Human Rights, art. 8; ICCPR, art. 2(3). See also European Convention for Protection of Human Rights and Fundamental Freedoms, ETS no. 5, art. 13 (1950) 19 Ernesto V. Francisco Jr., et al, v. House of Representatives, GR. No. 160261, Nov. 10, 2003.

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31. The principle of ripeness is premised on the doctrine that, for the courts to act, there must be an actual case or controversy involving a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.20 Under this principle, a suit is not ripe where it was brought too early.21 The principle is underlined by the fact that, until the controversy becomes concrete and focused, the court would find it difficult to evaluate the practical merits of each party.22 However, the requirement of ripeness is not bound to any hard and fast rules,23 and the degree of ripeness required may vary depending on the nature of the constitutional problem involved.24

32. The controversy that compelled the Petitioners to file the instant petition before the Honorable Court is sufficiently ripe for adjudication. It has been held that where a party will sustain immediate injury and such injury would be redressed by the relief requested, then the case involved would already satisfy the requirement of ripeness.25

33. In the case of the Petitioners Prof. David and Mr. Llamas,

they had in fact, already suffered an injury – they were the first ones to be arrested under the questioned presidential proclamation. Their rights to peaceably express their grievances against the government, as well as to free expression, have been and are being curtailed.

34. Likewise, where it is amply shown that a petitioner faces the reasonable probability of a violation of his rights, then a case would already be ripe for adjudication.26 In the instant case, Petitioner Tañada is suffering a violation of his right as a member of the House of Representatives to exercise his right to take part in the exercise of the emergency powers of Congress.

35. The other petitioners are likewise suffering a violation of their constitutional rights and of their right to be provided with ample remedies against violations of their fundamental rights,

20 CRUZ, supra note 5, at 23. See also International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 US 222 (1954), quoted in ROTUNDA, supra note 64, at 1026-1027. 21 NOWAK & ROTUNDA, supra note 9, at 68 22Id. 23 Id. 24 Barrett 125, citing United Public Workers v. Mitchell, 330 US 75 (1947) and Adler v. Board of Education, 342 US 485 (1952). 25 Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978), quoted in ROTUNDA, supra note 8, at 1053 26 See Steffel v. Thompson, 415 US 452 (1974)..

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through the continued enforcement of the Proclamation 1017.

36. The nature of the constitutional problem involved, with its novelty as well as its repercussions on the fundamental rights of the Petitioners, leaves no other conclusion than that the controversy is ripe for adjudication.

III. THE FILING OF THE INSTANT PETITION DOES NOT VIOLATE THE HIERARCHY OF COURTS, GIVEN THE URGENCY AND THE NATURE OF THE ISSUES INVOLVED. ----------------------------------------------

37. It may be argued that the instant Petition should be dismissed for being violative of the principle of the hierarchy of courts. However, in Article VIII, Section 5, paragraph 2 (a) of the Constitution, it is explicit that the Supreme Court has jurisdiction in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

38. Thus, it has been held that where a case raises constitutional

issues of transcendental importance to the public and involves a petition for certiorari and prohibition within the court's original jurisdiction within the Constitution, the Court may exercise primary jurisdiction over said case though it apparently failed to observe the rule of hierarchy of courts.27 That a case involving constitutional issues regarding treatment of cooperatives and the need for speedy disposition of cases would, for instance, justify the Court's taking cognizance over a case invoking its primary jurisdiction.28

39. Petitioners respectfully submit that the instant petition involves constitutional issues of transcendental importance as

27 Chavez v. Public Estates Authority, G.R. No.133250, July 9, 2002. 28 Philippine Rural Electric Cooperatives Association v. Secretary, G.R. No.143076, June 10, 2003.

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well as compelling circumstances that would merit a latitudinarian view of the principle of hierarchy of courts.

40. The urgency of resolving this case by no less than the Supreme Court is underscored by the fact that Proclamation 1017 effectively imposes martial law without following the constitutional requirements for its imposition.

IV. THE PETITION INVOLVES MATTERS OF PUBLIC INTEREST AND TRANSCENDENTAL IMPORTANCE SUCH AS WOULD JUSTIFY A RELAXATION OF ANY PROCEDURAL REQUIREMENT FOR CONSTITUTIONAL ADJUDICATION. ---------------------------------------------

41. The Honorable Court has repeatedly and consistently affirmed that the Court may brush aside technicalities of procedure where a rigid adherence to the rules would prejudice substantial justice,29 where the issues are of first impression and entail interpretation of key provisions of the Constitution and law,30 or where the case involves matters of transcendental importance.31

42. Unquestionably, the Court has the power to suspend

procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning 'pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be

29 Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991. 30 Philippine International Air Terminals Co., G.R. No.155001, May 5, 2003. 31 Defensor-Santiago v. Comelec, G.R. No.127325, March 19, 1997. See KMU v. Garcia, G.R. No.115381, December 23, 1994 (standing); Kilosbayan v. Guingona, G.R. No.113375, May 5, 1994 (standing); Kilosbayan v. Morato, G.R. No.118910, November 16, 1995 (standing); Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991. (standing, propriety of prohibition); Osmena v. Comelec, G.R. No.100318, July 30, 1991 (standing, etc.); Daza v. Singson, G.R. No.86344, December 21, 1989 (propriety of remedy); Association of Small Landowners in the Philippines v. Secretary, G.R. No.79310, July 14, 1989; Philippine International Air Terminals Co., G.R. No.155001, May 5, 2003 (standing), particularly J. Panganiban, sep.op.

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miscarried because of a rigid and formalistic adherence to such rules.32

43. As was held by this Honorable Court in the above-cited cases, the Court, in the exercise of its sound discretion, may brush aside procedural barriers and take cognizance of a case in view of the paramount importance and the constitutional significance of the issues raised. Thus, as the issues raised by the Petitioners in the instant case are of paramount public interest, involving as it does, the exclusive power of the Supreme Court to promulgate rules of procedure in all the courts, the Petitioners humbly pray that the Honorable Court brush aside procedural barriers, if any, in taking cognizance of this case.

V. PROCLAMATION 1017 DEROGATES AND INFRINGES ON THE POWER OF CONGRESS TO EXERCISE ITS EMERGENCY POWERS, THUS IMPAIRING THE LAWMAKERS’ LEGISLATIVE POWERS. ----------------------------------------------

44. Section 23 (2), Article VI of the Constitution provides thus:

“Sec. 23 (2). In times of war or national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”

45. Under the above provision, only Congress has the power to authorize the President to exercise powers necessary and proper to carry out a declared national policy in times of war or national emergency.

32 Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991.

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46. In fact, Section 1733 of Article XII of the 1987 Constitution cited in the questioned Presidential Proclamation 1017 is a specific provision that is reliant on the afore-quoted Congressional powers in times of national emergency. It must be noted that said Section 17, Article XII speaks of the State, not the President or the Commander-in-Chief, taking over privately-owned “public utility(ies) or business(es) affected with public interest” pursuant to a “declared national policy”34 setting the “reasonable terms” that would govern such “temporary takeover”.

47. It is clear then that the President, in issuing Proclamation

1017 declaring a state of emergency and willingly, if not unwittingly, allowing the police and the military to deny the citizens their rights to free speech and to peaceful assembly, as well as suppressing the freedom of the press, is usurping the power of Congress to exercise its emergency powers.

48. Moreover, the legislative policy embodied in Batas Pambansa Blg.880 (An Act Ensuring the Free Exercise by the People of Their Right Peaceably to Assemble and Petition the Government for Other Purposes) cannot be amended by the President in the guise of a Proclamation or a General Order. BP 880 delegates to local government officials the regulation of the “time, place, and manner” of the exercise of free speech in order to ensure public safety and convenience. For the President to order a “no rally policy” is to contravene the clear language of the statute and impair the autonomy of the local governments.

VI. THE ISSUANCE OF PROCLAMATION 1017 IS A SUBTERFUGE TO AVOID THE CONSTITUTIONAL REQUIREMENTS FOR THE IMPOSITION OF MARTIAL LAW OR SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, AS WELL AS 33 The provision reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

34 Section 23 (2), Article VI of the Constitution.

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AVOID CONGRESSIONAL SCRUTINY INTO THE PRESIDENT’S EXERCISE OF MARTIAL LAW POWERS.

49. Article VII, Section 18 of the 1987 Constitution provides:

“Sec. 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 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.

“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus 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

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operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

“The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

“During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

50. There is nothing in the above provision that authorizes the President to declare a national state of emergency.

51. What the constitutional provision authorizes is for the

President to:

a. Call out the armed forces to prevent or suppress lawless violence, invasion or rebellion;

b. Suspend the privilege of the writ of habeas corpus; or

c. Proclaim martial law over the entire Philippines or any part thereof.

52. Under the Constitution, the following must concur to validly suspend the privilege of the writ of habeas corpus or impose martial law:

a. There must be an invasion or rebellion; and

b. Public safety requires the suspension of the privilege of the writ of habeas corpus or imposition of martial law.

53. While Proclamation 1017 purports to simply declare a state of emergency, which as discussed has no constitutional basis, its implementation clearly shows that it effectively imposed martial law without following the constitutional requirements for its imposition.

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54. As stated earlier, certain personalities have been arrested on the basis of Proclamation 1017 without arrest warrants. Rally permits have also been cancelled and rallies of any sort are now prohibited. These acts glaringly show that the Philippines has been effectively put under martial law by virtue of Proclamation 1017.

55. Moreover, it is beyond doubt that Proclamation 1017 is a mere subterfuge to avoid congressional scrutiny into the president’s exercise of martial law powers.

56. Under the above cited provision, the President is required,

within forty-eight (48) hours from the proclamation of martial law or the suspension of the writ of habeas corpus, to 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.

57. Hence, as Proclamation 1017 does not expressly declare martial law or suspend the privilege of the writ of habeas corpus, it is able to avoid congressional scrutiny into the president’s exercise of martial law powers.

VII. PROCLAMATION 1017 VIOLATES THE CONSTITUTIONAL GUARANTEES OF FREEDOMS OF SPEECH, OF THE PRESS, AND OF ASSEMBLY.

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58. Section 4, Article III of the Constitution guarantees the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.

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59. As discussed earlier, Proclamation 1017 has been invoked by government in revoking all rally permits and prohibiting the exercise of the people’s constitutional right to freedom of speech, of expression and to peaceably assemble.

60. Hence, it is very clear that Proclamation 1017 violates the constitutional guarantees of freedom of speech and to peaceably assemble to petition the government for redress of grievances.

61. The signal importance of the right to freedom of speech and freedom of assembly is stressed by this Honorable Court in the landmark consolidated cases of Estrada v. Desierto et al., and Estrada v. Arroyo, which discussed the fine distinctions between EDSA I and EDSA II. The Petitioners quote the case at length, because it is most apropos to the issues at hand:

“In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among ‘the

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reforms sine quibus non.’ The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively.’

These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided “that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances.” The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.

Thence on, the guaranty was set in stone in our 1935 Constitution, and the 1973 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

‘Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.’

The indispensability of the people’s freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus.’ In this sense, freedom of speech and of assembly provides a framework in which the conflict necessary to the progress of a society can take

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place without destroying the society.’”35

62. The raid on the offices of the Daily Tribune by police and the Director General of the Philippine National Police’s declaration that the police will shut down or take over media entities not complying with standard regulations promulgated by them, purportedly to implement the questioned proclamation and general order, are an invalid and unconstitutional exercise of prior restraint that recalls the Marcos regime’s suppression of the freedom of the press.

63. Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes in Near v. Minnesota, the first landmark case on prior restraint in American jurisprudence, because “the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”36

64. “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity,” so said the US Supreme Court in a much later case that no doubt, fell under the influence of this landmark case.37

65. Not a few have seen the double irony of history the Arroyo administration has found itself in: the questioned proclamation was issued while the nation was marking the 20th anniversary of EDSA I, which restored fundamental freedoms to Filipino citizens long denied them by the long night that was the Marcos regime. It was also issued by a President who rose to power because of the freedom of speech and the freedom of assembly upheld by this

35 G.R. Nos. 146710-15. March 2, 2001; G.R. No. 146738. March 2, 2001.[emphasis in the original, in-text citations omitted] 36 283 U.S. 697,716 (1931). 37 Carroll v. Princess Anne, 393 U.S. 175, 181 (1968).

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Honorable Court in the consolidated cases cited above.

66. A public street is a public forum. As held by a leading American case:

“Wherever the title of streets and parks may rest they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege [to] use the streets and parks for communication of views on national questions may be regulated in the interest of all; [but] it must not, in the guise of regulation, be abridged or denied.”38

67. The constitutional right of peaceful assembly limits the government to a “time, place, and manner” regulation. As held by the US Supreme Court in Cox v. Louisiana:

“[But we] have no occasion in this case to consider the constitutionality of the uniform, consistent, and nondiscriminatory application of a statute forbidding all access to streets and public facilities for parades and meetings. Although the statute here involved on its face precludes all street assemblies and parades, it has not been so [applied]. City officials [indicated] that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained. [The] statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. [It] appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion. [The] pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective [enforcement]. [Such] broad discretion in a public officials [permits] the official to act as a

38 Hague v. CIO, 307 U.S. 496 (1939).

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censor.”39

68. Indeed, the questioned proclamation, operationalized through the “no rally policy,” is both void for vagueness and overbreadth. A law is void on its face for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application.40

69. The more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine—the requirement that legislatures place reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.41 It must be stressed that the questioned proclamation is not even a law but an issuance of the executive department. Thus, the dangers associated with vagueness are more palpable when only the executive department is involved, as the President need not, as in this case, promulgate guidelines for the enforcement of her own policy.

VIII. PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A WRIT OR PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER AGAINST RESPONDENTS DIRECTING THEM TO REFRAIN FROM IMPLEMENTING THE QUESTIONED PRESIDENTIAL ORDER UNTIL SUCH TIME THAT THE ISSUES PRESENTED IN THIS INSTANT SUIT ARE RESOLVED BY THIS HONORABLE COURT. ----------------------------------------------

39 379 U.S. 536 (1965). See also Cox v. New Hampshire, 312 U.S. 569 (1941). 40 Connally v. General Construction Co. 269 U.S. 385 (1926). 41 See Smith v. Goguen 415 U.S. 566 (1974).

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70. Under Rule 58, an applicant for a Writ of Preliminary Injunction is entitled to such relief demanded, when it is established that (a) he is entitled to the relief demanded, wherein whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of act or acts, either for a limited period or perpetually; (b), the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c), a party, court or agency is doing, threatening, or is attempting to do, or is procuring is suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

71. Petitioner Lorenzo Tañada III is deprived of his prerogatives

as a member of the House of Representatives in that the declaration of a state of emergency by the President is tantamount to an exercise of Congress’ emergency powers, thus impairing any lawmaker’s legislative powers. Moreover, by such a declaration, the President is resorting to a subterfuge to avoid congressional scrutiny into the President’s exercise of martial law powers as defined and delimited by the Constitution.

72. The other Petitioners, principally as citizens, are directly injured by such a declaration because through it, the agents of the respondent Chief Executive have barred them from the exercise of civil liberties duly protected under the constitution. Moreover, such a declaration has a “chilling effect” on the exercise of their rights, it being a declaration with ambiguous legal reach that breaches the zone of privacy and protection accorded to the citizen by the Bill of Rights. To the extent that the law is vague, it might have an in terrorem effect and deter persons from engaging in protected activities. An unclear law, a law that does not draw bright lines, might regulate, or appear to regulate, more than is necessary, and thus deter or chill persons from engaging in protected activities.42 By reason of the nature of the instant petition and the cause of action of the petitioners, petitioners pray for exemption from the filing of a mandatory injunction bond.

42 JOHN E. NOWAK AND RONALD ROTUNDA, CONSTITUTIONAL LAW, 1071 (2000, 6th Ed.)

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PRAYER

WHEREFORE, the premises considered, Petitioners respectfully pray that

this Honorable Court:

a) DECLARE that the President and Commander-in-Chief committed grave abuse of discretion in placing the country under a State of Emergency, such act being a usurpation of constitutional powers properly belonging to the Legislative Branch of government, as well as a contravention of civil liberties protected under the Constitution,

b) PROHIBIT the President and Commander-in-Chief, the

Department of National Defense, the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and their agents and instrumentalities, from implementing the questioned presidential order.

c). ISSUE, upon the filing hereof, A WRIT OF

PRELIMINARY PROHIBITORY INJUNCTION or TEMPORARY RESTRAINING ORDER against the President and Comander-in-Chief, the Department of National Defense, the Chief of Staff of the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and their agents and other instrumentalities, restraining them from implementing the questioned presidential proclamation and general order until such time that the issues presented in this instant suit are resolved by this Honorable Court.

Other relief just and equitable is also prayed for.

Makati City for Manila, 25 February 2006.

ROQUE & BUTUYAN LAW OFFICES Unit 1904, Antel 2000 Corporate Center

121 Valero Street, Salcedo Village 1200 Makati City

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