REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA and INTEGRATED BAR OF THE PHILIPPINES (IBP),

Petitioners,

- versus - SC G.R. No. ____________(With Urgent Application for the Issuance of a Temporary Restraining Order (TRO) and/or A Writ of Preliminary Injunction)

HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL ARTURO LOMIBAO, in his capacity as PNP Chief,

Respondents.x - - - - - - - - - - - - - - - - - - - - - - - - - - - x

PETITION FOR CERTIORARI _____and PROHIBITION______

Petitioners JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,

ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,

FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,

BERNARD L. DAGCUTA, ROGELIO V. GARCIA and INTEGRATED BAR OF

THE PHILIPPINES (IBP), by counsel, respectfully state:

I.

NATURE AND TIMELINESS OF THE PETITION

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

Rule 65 of the 1997 Rules of Civil Procedure, with an urgent prayer for the

issuance of a temporary restraining order (“TRO”) and/or writ of

preliminary injunction, seeking, among others, to: (a) declare as null and

void for being unconstitutional Proclamation No. 1017, which is an alleged

Proclamation Declaring A State of Emergency, dated 24 February 2006;

(b) General Order No. 5 dated 24 February 2006 issued to the Armed

Forces of the Philippines (“AFP”) and the Philippine National Police

(“PNP”); and (c) enjoin and prohibit the respondents from issuing

directives based on or otherwise acting upon Proclamation No. 1017.

1.1.1. A certified true copy of the Order dated 24 February

2006 is attached hereto as Annex “A”, while

photocopies of the same are attached to the other

copies of this Petition.

1.1.2. On the other hand, a certified true copy of General

Order No. 5 dated 24 February 2006 is attached

hereto as Annex “B”, while photocopies of the same

are attached to the other copies of this Petition.

1.2. It is respectfully submitted that this petition is filed well within the 60-day

reglementary period prescribed under Rule 65 of the 1997 Rules of Civil

Procedure, as the subject proclamation was issued and was publicly

announced over radio and television on 24 February 2006.

1.3. It is further respectfully submitted that the issuance of Proclamation No.

1017, Proclamation Declaring A State of Emergency, is in grave abuse of

discretion amounting to lack or excess of jurisdiction as it amounted to a

declaration of martial law.

1.3.1. General Order No. 5 was issued by respondent

Executive Secretary Eduardo Ermita to implement

2

Proclamation No. 1017. According to public

respondent Ermita, General Order No. 5 “directs the

Armed Force of the Philippines in the face of the

national emergency, to maintain public peace, order

and safety and to prevent and suppress lawless

violence.”1

1.3.2. Based on Proclamation No. 1017 declaring of a "state

of national emergency," police authorities arrested

without warrants several personalities.

1.3.2.1.On 24 February 2006, University of the

Philippines Professor Randy David,

Akbayan President Ronald Llamas and

Atty. Argee Guevarra were arrested

without warrants allegedly for illegal

assembly and inciting to sedition.2

1.3.2.2.On 25 February 2006, Representative

Crispin Beltran of Anakpawis was

arrested using a warrant dated 7

October 1985 for inciting to rebellion.

On the other hand, General Ramon

Montano was likewise arrested, without

a warrant, for inciting to sedition. There

was also an attempt on the part of the

police authorities to arrest

Representative Satur Ocampo of Bayan

Muna, without a warrant. However,

1 Philippine Daily Inquirer, 25 February 2006, A4.2 Philippine Daily Inquirer, February 25, 2006, A8.

3

Representative Ocampo was able to

narrowly evade the police authorities.3

1.3.2.3.On 26 February 2006, Representative

Joel Virador was arrested at the PAL

Ticket office in Davao City.

1.3.2.4.General Danilo Lim, the Commander of

the Army’s First Scout Ranger Regiment

was also ordered arrested by AFP Chief

Generoso Senga.4

1.3.3. There was also an imposition of a ban on assemblies

and mass actions.

1.3.3.1.On 24 February 2006, the Office of the

President announced the cancellation of

all programs and activities related to the

20th anniversary of Edsa People Power

I. Justice Secretary Raul Gonzales

reiterated that there was a cancellation

of political rallies, which, to the mind of

the President, was there for purposes of

destabilization.5

1.3.3.2.Several demonstrations held on 24

February 2006 were dispersed by

policemen. The President further

revoked the permits earlier issued by

3 Philippine Daily Inquirer, 26 February 2006, A6; also on Philippine Daily Inquirer, 27 February 2006, A19.4 The Philippine Star, 27 February 2006, page 1.5 Philippine Daily Inquirer, 25 February 2006, A4.

4

local governments to hold rallies on 24

February 2006.6

1.3.4. A stern warning to Media was also issued by the

police authorities and the President’s Cabinet

Members, creating a chilling effect to the exercise of

the constitutionally protected right of freedom of the

press.

1.3.4.1.On 25 February 2006, a little past

midnight, officers of the Philippine

National Police’s (PNP) Criminal

Investigation and Detection Group

raided the editorial office of the Daily

Tribune.7

1.3.4.2.The police took page proofs of the

newspaper’s February 25, 2006 issue

and photographs and copies of the

reports faxed and emailed by its

reporters.

1.3.4.3.The PNP claims, through public

respondent PNP Director General Arturo

Lomibao, that their actions were allowed

as per General Order No. 5. The

government will review the reports to be

published by Daily Tribune, but it will be

closed down, according to the PNP.8

6 Philippine Daily Inquirer, 25 February 2006, A8; also on Philippine Daily Inquirer, 26 February 2006, A8 .7 Philippine Daily Inquirer, 26 February 2006, A19.8 Philippine Daily Inquirer, 26 February 2006, A19.

5

1.3.4.4.The raid on the Daily Tribune,

according to the President’s Chief of

Staff, Michael Defensor, was “meant to

show a ‘strong presence, to tell media

outlets not to connive or do anything

that would help the rebels in bringing

down this government’”.9

1.3.5. The PNP has also declared that the police will move

against persons, groups or business establishments

that, according to its valuation, would ‘contribute to

the exacerbation of the national emergency’.10

1.3.5.1.The PNP further warns that it would

take over any media organization that

would not follow “standards set by the

government” during the state of national

emergency.11

1.3.5.2.A government team will examine the

editorial contents of the newspapers and

the news or views aired by broadcast

stations to see if these conform to the

standards, according to public

respondent PNP Director General

Lomibao.

1.3.5.3.Director General Lomibao further stated

that “[if] they (the news groups) do not

follow the standards – and the 9 Philippine Daily Inquirer, 26 February 2006, A19.10 Philippine Daily Inquirer, 26 February 2006, A19.11 Philippine Daily Inquirer, 26 February 2006, A1.

6

standards are if they would contribute to

instability in the government, [or[ if they

do not subscribe to what is in General

Order no. 5 and Presidential

Proclamation No. 1017 – we will

recommend (a takeover)”.12

1.3.5.4.Violations of the standards will then be

left to the judgment of the PNP and the

other agencies empowered to

implement General Order No. 5.

1.4. With these occurrences: warrantless arrests, the ban on mass protests,

and the warning issued against media, respondents, through her

Proclamation No. 1017 and General Order No. 5, have not only allowed

but ordered violations of constitutionally protected rights.

1.4.1. Section 2, Article III of the 1987 Constitution protects

individuals from unreasonable searches and seizures.

The guidelines on the issuance of warrants of arrests

are also set forth in this Constitutional Provision, to

wit:

“Section 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.”

1.4.2. The people’s right to peaceably assemble has

likewise been trampled upon with the issuance of

12 Philippine Daily Inquirer, 26 February 2006, A1.

7

Proclamation No. 1017 and General Order No. 5,

since it is being invoked by police authorities to break

up assemblies and demonstrations.

1.4.3. The people’s freedom of speech, of expression and

the freedom of the press are also curtailed by the

aforementioned acts of the government. The right of

information is also threatened with the admonition that

the police authorities are directing towards media, to

wit:

“Section 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.

xxx xxx xxx

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.“13

1.5. Taking everything that has happened since the issuance of Proclamation

No. 1017, in effect, the Philippines was placed under martial law without a

declaration to that effect and without observing the proper procedure. This

is grave abuse of her discretion.

1.6. Under the Constitution, this Honorable 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, viz:

“Section 18. x x x x13 1987Philippine Constitution.

8

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.

x x x x.”14

1.6.1. It is this very Constitutional provision, which gives

standing to the present petitioners. The Supreme

Court is tasked by the Constitution to review, in an

appropriate proceeding filed by any citizen, the

sufficiency of the factual basis of the proclamation of

martial law within thirty days from its filing.

1.6.2. The issuance of Proclamation No. 1017, the

declaration of a "state of national emergency" clearly

carries with it the prerogatives given to the President

during a "state of martial law." Nothing less than the

blanket authority given to the police and armed forces

to prevent and suppress all forms of lawless violence

and to enforce obedience to all the laws and to all

decrees, orders and regulations demonstrates this.

1.7. In addition, there is no plain, speedy and adequate remedy in the course

of law, which can enjoin the respondents from implementing Proclamation

No. 1017 and General Order No. 5.

1.7.1. In Pioneer Insurance & Surety Corp. v.

Hontanosas, 78 SCRA 447, 466 (1977), this

Honorable Court defined an adequate remedy as

follows:

“…’a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at

14 1987Philippine Constitution.

9

some time in the future will bring about a revival of judgment of the lower court complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal.’ (Silvestre v. Torres, 57 Phil. 885, 11 CJ., p. 113).”

1.7.2. The injurious effects of the questioned Proclamation

No. 1017 to petitioners is a fact. With Proclamation

No. 1017, there is clear and present danger against

petitioner’s‘ constitutionally protected freedom of

speech, expression, to peaceably assemble and the

right against warrantless arrests.

1.7.3. In the meantime, there is no other remedy available to

petitioners to avert such grave and imminent and/or

actual danger to their civil and political rights.

1.8. Petitioner is thus constrained to invoke the original jurisdiction of this

Honorable Court to issue writs of certiorari and prohibition against the

respondents and declare null and void Proclamation No. 1015.

1.9. Considering the foregoing, it is respectfully submitted that the petition is

sufficient in form and substance and should be given due course.

10

II.

PARTIES

2.1. Petitioners Jose Anselmo I. Cadiz, Feliciano M. Bautista, Romulo R. Rivera,

Jose Amor M. Amorado, Alicia A. Risos-Vidal, Felimon C. Abelita III,

Manuel P. Legaspi, J.B. Jovy C. Bernabe, Bernard L. Dagcuta And

Rogelio V. Garcia, are all of legal age, Filipinos and are presently the

Governors of the Integrated Bar of the Philippines holding office at IBP

National Office, IBP Building, No. 15 Julia Vargas Avenue, Ortigas Center,

Pasig City. The Integrated Bar of the Philippines (IBP) is the compulsory

organization of lawyers in the Philippines composed of about 45,000

members. They may be served with notices and other process of this

Honorable Court through the general counsel of the IBP, Atty. Orlando E.

Mendiola at IBP National Office, IBP Building, No. 15 Julia Vargas

Avenue, Ortigas Center, Pasig City.

2.2. Respondents are the public officers comprising the executive office of the

President as well as the offices of the Armed Forces of the Philippines and

the Philippine National Police.

2.2.1. Respondent Hon. Eduardo Ermita is being impleaded

in his capacity as the Executive Secretary of the

present administration and as the representative of

the President.

2.2.2. Respondent Gen. Generoso Senga is being

impleaded in his capacity as Chief of Staff of the AFP.

2.2.3. On the other hand, respondent Director General

Arturo Lomibao is being impleaded in his capacity as

Chief of the Philippine National Police.

2.3. Public respondents Executive Secretary Eduardo Ermita, General

Generoso Senga, Director General Arturo Lomibao, may be served with

11

notice and other process of this Honorable Court at the Office of the

President, Malacanang Palace, Manila, Office of the Chief of Staff, Camp

Aguinaldo, EDSA, Quezon City, and Office of the Chief, Philippine

National Police, Camp Crame, EDSA, Quezon City, respectively.

III.

STATEMENT OF FACTS

3.1. In the morning of 24 February 2006, news reports of an increased security

in Malacanang palace and of withdrawal of support to be made by certain

military officers during the EDSA I People Power celebration were

broadcasted over radio and television.

3.2. Later in the day and citing an alleged tactical alliance between the

extreme left and the extreme right, which was supposedly uncovered, the

President issued Proclamation No. 1017, the last paragraph of which

reads as follows:

“NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President… whenever it becomes necessary… may call out (the) armed forces to prevent or suppress… rebellion…,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.”

3.3. Thereafter, the President issued General Order No. 5, which directed the

AFP and the PNP to prevent and suppress acts of terrorism and lawless

violence in the country and to immediately carry out the necessary and

appropriate actions and measures to suppress and prevent acts of

terrorism and lawless violence.

12

3.4. As earlier shown, because of the foregoing, several warrantless arrests

were made against leaders of leftist organizations, while the PNP began

warning media of possible takeover or closure should it find materials or

stories which would support the rebellion or violence. In fact, within the

same day, the PNP raided the offices of the Daily Tribune supposedly

because it was printing materials in support of the rebellion or lawless

violence.

3.5. Likewise, the government withdrew all permits issued to various groups to

assemble and hold rallies and threatened those who will participate in

doing so with arrest and dispersal.

3.6. Despite government’s claim that it has control over the situation and has

supposedly neutralized the alleged plotters, it nonetheless continues to

enforce Proclamation No. 1017, to the damage and prejudice of the

Filipino people, whose civil and political rights had been arbitrarily

curtailed.

3.7. HENCE, THIS PETITION.

IV.

GROUND FOR ALLOWANCE OF THE PETITION

IT IS RESPECTFULLY SUBMITTED THAT PROCLAMATION NO.

1017 WAS ISSUED IN GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION

CONSIDERING THAT:

A.

IT IS AN ARBITRARY AND UNLAWFUL EXERCISE

BY THE PRESIDENT OF HER MARTIAL LAW

POWERS, AS IT WAS MADE IN UTTER

13

DISREGARD AND IN COMPLETE

CONTRAVENTION OF THE SAFEGUARDS

EXPLICITLY PRESCRIBED UNDER SECTION 18,

ARTICLE VII OF THE CONSTITUTION.

B.

EVEN ASSUMING THAT PROCLAMATION NO.

1017 IS NOT A DECLARATION OF MARTIAL LAW,

IT NONETHELESS VIOLATES SECTION 23(2)

ARTICLE VI OF THE 1987 CONSTITUTION, SINCE

IT AMOUNTS TO AN EXERCISE BY THE

PRESIDENT OF EMERGENCY POWERS WITHOUT

CONGRESSIONAL APPROVAL.

C.

IN ADDITION, PROCLAMATION NO. 1017 GOES

BEYOND THE NATURE AND FUNCTION 0F A

PROCLAMATION AS DEFINED UNDER THE

REVISED ADMINISTRATIVE CODE.

V.

DISCUSSION

5.1. In Gamboa v. Cruz, 162 SCRA 642, 646-647 (1988), the Supreme Court

laid down the basis in determining if a judicial action falls within the ambit

of the term “grave abuse of discretion” as follows:

“It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions. To warrant the issuance of the extraordinary writ of certiorari, the

14

alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, or to act at all, in contemplation of law.” (Emphasis supplied)

5.1.1. In Republic v. Cocofed, 372 SCRA 462, 493 (2001),

this Honorable Court declared that when a tribunal

violates or contravenes the Constitution, it is

considered to have been made with grave abuse of

discretion, viz:

“Indeed, grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. In one case, this Court ruled that the lower court’s resolution was ‘tantamount to overruling a judicial pronouncement of the highest Court . . . and unmistakably a very grave abuse of discretion.’” (Emphasis supplied).

5.1.2. In PCGG v. Desierto, G.R. No. 132120, February 10,

2003, the term “grave abuse of discretion” likewise

include gross misapprehension of the facts and/or

allegations, to wit:

“Grave abuse of discretion refers not merely to palpable errors of jurisdiction; or to violations of the Constitution, the law and jurisprudence. It refers also to cases in which, for various reasons, there has been a gross misapprehension of facts. x x x” (Emphasis supplied).

5.2. As will be shown, the issuance of Proclamation No. 1017, Proclamation

Declaring A State of Emergency, is in grave abuse of discretion amounting

to lack or excess of jurisdiction since it violates and contravenes Section

18, Article VII and/or, in the alternative, Section 23(2), Article VI of the

1987 Constitution.

A. Respondents Gravely Abused Their Discretion Amounting To Lack Or

15

Excess Of Jurisdiction When They Exercised Its Martial Law Powers Through The Issuance Of A Proclamation Declaring A State Of National Emergency In Utter Disregard And In Complete Contravention Of The Safeguards Explicitly Prescribed Under Section 18, Article VII Of The Constitution.

5.3. As earlier explained, Proclamation No. 1017 dated 24 February 2006 is

actually a declaration of martial law.

5.4. Proclamation No. 1017 led to, and involved the curtailment of civil or

political rights, as shown by the following:

a) Within hours from issuing Proclamation No. 1017,

Atty. Argee Guevara and columnist and academician,

Professor Randy David were arrested by police

authorities based on Proclamation No. 1017.

Thereafter, Representatives Crispin Beltran, Joel

Virador, Satur Ocampo, Liza Maza and Teddy

Casiño, and retired general Ramon Montaño were

either arrested or threatened to be arrested.

b) Also, the offices of the Daily Tribune, a newspaper of

general circulation, were raided by elements of the

Philippine National Police pursuant to Proclamation

No. 1017. At about the same time, a warning was

issued by the PNP to all media stations that they all

face take-over or closure should they report activities

in support of the rebellion.

c) Likewise, all permits to hold or conduct rallies were

unceremoniously revoked, with threats to arrest those

16

who would join the EDSA I celebration assemblies to

be held in Metro Manila.

5.5. Proclamation No. 1017 has allowed military authorities the right to take

over the function of civil government.

5.5.1. Under Proclamation No. 1017, the military is being

called out to maintain order and enforce the laws and

the decrees, order and regulations issued by the

President or upon her direction.

5.5.2. Needless to state, the maintenance of order and

enforcement of laws is a civilian function of

government. Hence, Proclamation No. 1017 bestows

a civilian function of government to military

authorities.

5.6. Verily, the above-described acts, which were carried out pursuant to

Proclamation No. 1017, unequivocally manifest the exercise by the

President of her martial law powers.

5.7. Needless to state, the exercise by the President of her martial law power

is in utter disregard and complete contravention of the safeguards

prescribed under Section 18, Article VII of the 1987 Constitution, to wit:

"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 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,

17

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 of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

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

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

5.8. As indicated in Section 18, Article VII, some of the prescribed safeguards

are as follows:

a) Martial law can only be declared: (i) where there is

invasion or rebellion and (ii) when the public safety

requires it;

b) The proclamation of martial law shall not exceed sixty

(60) days, following which it shall be automatically

lifted;

c) Within 48 hours after the proclamation, the President

shall personally or in writing report his action to the

Congress, who can revoke his action or extend the

proclamation by a majority vote of all its members

voting jointly; and

18

d) The action of the President and the Congress shall be

subject to review by this Honorable Court, who has

the authority to determine the sufficiency of the factual

basis of such action and who must resolve the matter

within thirty (30) days from its filing.

5.9. In this instance, it is plain that Proclamation No. 1017 seeks to circumvent

the foregoing safeguards prescribed under the Constitution.

5.10. There is no basis for the President to declare martial law, disguised

through a proclamation of a state of national emergency.

5.10.1.As indicated in the whereas clauses, Proclamation

No. 1017 was issued due to an alleged tactical

alliance between the extreme left and the extreme

right and their supposed concerted and systematic

conspiracy over a broad front against the government.

It clearly does not refer to any actual invasion or

rebellion being mounted against the government.

5.10.2.In fact, on the very same day, the proclamation was

issued, the President addressed the nation in live

television and claimed that she was “in control” of the

situation and that threats against her government had

already been neutralized and quelled.

5.10.3.Hence, Proclamation No. 1017 allowed the President

to exercise her martial law powers even though there

was no basis for her to do so under the Constitution.

5.11. The effectivity of Proclamation No. 1017 is open-ended and remains solely

to the judgment of the President.

19

5.11.1.Unlike a proper declaration of martial law, which is

only effective for 60 days, Proclamation No. 1017

does not provide for any duration of its effectivity.

5.11.2.Hence, by disguising it as a proclamation of a state of

national emergency instead of a state of martial law,

the President is able to circumvent the 60-day

limitation prescribed by the Constitution on its

effectivity.

5.12. Proclamation 1017 deprives Congress of its power to review the disguised

declaration of martial law.

5.12.1.Unlike a proper declaration of martial law, which

requires the President to render a report to Congress

within 48 hours from her proclamation, a proclamation

of a state of national emergency allows the President

not to do so.

5.12.2.Without such report, Congress cannot by itself go

over the proclamation and review the exercise of the

President of her martial law powers.

5.13. Finally, in characterizing her proclamation as such, the President likewise

sought to put her proclamation beyond the realm of judicial review.

5.13.1.Indeed, unlike the proper declaration of martial law,

which enables any citizen to question the sufficiency

of the factual basis for such declaration before this

Honorable Court, a proclamation of a state of national

emergency would seem to bar any citizen from

20

invoking such right to question its validity before this

Honorable Court.

5.14. The subject presidential Proclamation is an unwarranted, illegal and

abusive exercise of a martial law power that has no basis under the

Constitution. The declaration of a state of national emergency opens the

door to the unconstitutional implementation of warrantless arrests for the

crimes of lawless violence, invasion and rebellion.

5.15. There is absolutely no reason for the President to deviate from the concise

and plain provisions of the Constitution. In a society which adheres to the

rule of law, resort to extra-constitutional measures is unnecessary where

the law has provided everything for any emergency or contingency. For

even if it may be proven beneficial for a time, the precedent it sets is

pernicious as the law may, in a little while, be disregarded again on the

same pretext but for questionable purposes.

5.16. Even in times of emergency, government action may vary in breath and

intensity from more normal times, yet it need not be less constitutional.15

Extraordinary conditions may call for extraordinary remedies. But it cannot

justify action which lies outside the sphere of constitutional authority.

Extraordinary conditions do not create or enlarge constitutional power. 16

5.17. Premises considered, it is respectfully submitted that Proclamation No.

1017 is unconstitutional, since it is a disguised attempt by the President to

exercise her martial law powers without complying with the requirements

prescribed under Section 18, Article VII of the 1987 Constitution.

B. Even Assuming That Proclamation No. 1017 Is Not A Declaration Of Martial Law, It Nonetheless Violates Section 23(2) Article VI Of The 1987

15 Smith/Cotter, Powers of the President During Crises, 1972 at 13. 16 Freund, Sutherland, Howe, Brown, Constitutional Law, 4th Ed. 1977 at 656.

21

Constitution, Since It Amounts To An Exercise By The President Of Emergency Powers Without Congressional Approval.

5.18. Section 18, Article VII of the 1987 Constitution gives the President the

power to call out the armed forces to prevent or suppress all forms of

lawless violence, invasion or rebellion.

5.18.1.Verily, Section 18, Article VII expressly limits the

calling out power of the President as commander-in-

chief of the armed forces to a specific purpose, i.e.

prevent or suppress lawless violence, invasion or

rebellion.

5.18.2.In Marcos v. Manglapus, 178 SCRA 760, 763-764

(1989), this Honorable Court affirmed the specific

limitation imposed on the power of the President as

commander-in-chief of the armed forces, as follows:

“…unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, x x x “ (Emphasis supplied).

5.18.3.Accordingly, Section 18, Article VII prohibits the

President from calling out the armed forces to perform

tasks apart from suppressing lawless violence,

invasion or rebellion.

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5.19. This, however, is not the case with Proclamation No. 1017, which was

allegedly issued pursuant to Section 18, Article VII. The last paragraph

thereof clearly directs the Armed Forces of the Philippines not only to

prevent or suppress all forms of lawless violence, insurrection or rebellion,

but also to maintain order and enforce obedience to laws and the decrees,

orders, and regulations issued by the President or upon her direction.

5.20. Thus, through Proclamation No. 1017, the President was calling out the

armed forces to perform a civilian function of government, which is law

enforcement – a task clearly beyond suppressing or preventing lawless

violence, insurrection or rebellion. It is therefore an exercise of

emergency powers for which the President was not authorized by

Congress to do so.

5.21. It bears stressing that, under Section 23(2) of Article VI of the 1987

Constitution, only Congress can grant the President such emergency

power, to wit:

“In times of war or other national emergency, the Congress, may, by law authorize the President for a limited period, and subject to such restrictions as it may prescribe, to exercise the 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 hereof.” (Emphasis supplied).

5.22. Since there was no law enacted by Congress bestowing to the President

such power, it is respectfully submitted that Proclamation No. 1017

constitutes an unlawful exercise by the President of emergency powers

and of her calling out power under Section 18, Article VII.

C. In Addition, Proclamation No. 1017 Goes Beyond The Nature And Function Of A Proclamation As Defined Under The Revised Administrative Code.

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5.23. Section 4, Chapter 2, Title I, Book III of the Revised Administrative Code

describes the nature and function of a proclamation as follows:

“SECTION 4. Proclamations. - Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.”

5.24. An examination of Proclamation 1017 shows that it does more than just

declare the existence of a status or condition. It contains a directive to the

Armed Forces of the Philippines.

5.25. It bears stressing that Section 7, Chapter 2, Title I, Book III of the

Administrative Code prescribes that such a directive to the Armed Forces

of the Philippines be embodied in a general order, and not in a

proclamation.

5.26. Premises considered, it is respectfully submitted that, on its face,

Proclamation No. 1017 is defective in that it not just merely declares the

existence of a status or condition, but it provides a general order to the

armed forces.

VI.

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

6.1. Petitioners replead by reference all the foregoing allegations.

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

issuance of a temporary restraining order and/or writ of preliminary

injunction are present in the instant case, to wit: “(1) The invasion of the

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right is material and substantial; (2) The right of complainant is clear and

unmistakable; (3) There is an urgent and permanent necessity for the writ

to prevent serious damage.” (Versoza v. Court of Appeals 299 SCRA

100, 108 [1998]).

6.3. As shown, petitioners have established their clear and legal right in the

instant case, in that public respondents cannot execute and implement

Proclamation No. 1017 and General Order No. 5 as these are

unconstitutional and issued with grave abuse of discretion.

6.4. Being issued without or in excess of jurisdiction, the 24 February 2006

Proclamation is void and of no legal effect in the same way as a judgment

which was rendered by a court without or in excess of jurisdiction.

“It is, of course, a well-settled rule that when the court transcends the limits prescribed for it by law and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppel or otherwise.” (Agustin v. Bacalan, 135 SCRA 340, 349 [1985]) (Emphasis supplied)

6.4.1. Corollarily, this Honorable Court has ruled that a void

judgment has no legal effect and is deemed to be no

judgment at all. In Estoesta, Sr. v. Court of

Appeals, 179 SCRA 203, 212 (1989), the Supreme

Court held:

“Quoting with approval Freeman on Judgments this court in Gomez v. Concepcion (47 Phil. 717) declared that:

‘A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bar any one. All acts performed under it and claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale

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by virtue of its authority finds himself without title and without redress. (Freeman on Judgments, Sec. 117, citing Campbell vs. McChan, 41 111, 45; Roberts vs. Stowers, 7 Bush, 295 Huls v. Buntin 47 111, 396; Sherell vs. Goddrum, 3 Hump, 418.) Italics supplied.’

Recently in Caro et al. v. Quicho et al. (G.R. No. L-31426, February 29, 1988) this Court, thru Justice Yap ruled that:

‘The order of the CFI of Sorsogon being void is no order at all. It confers no right nor does it impose any duty. `It neither binds nor bars any one.’ All acts performed under a void order or judgment and all claims flowing out of it are also void, for like the spring that cannot rise above its source, a void order cannot create a valid and legally enforceable right. A fortiori the order of October 19, 1968 of the CFI of Albay directing private respondent to deliver the possession and enjoyment of Lot No. 1-C to Luz Caro, is also void.’

A null and void judgment is susceptible to direct as well as collateral attack. Directly a void judgment may be questioned through an action for annulment or it may be attacked collaterally by assailing its validity in another action where it is invoked. This is because a judgment rendered by a court without jurisdiction has no binding force and effect (Ang Lam v. Rosillosa, 86 Phil., 447 [1950]; Abbain v. Chua, 22 SCRA 748 [1968]).” (Emphasis supplied)

6.4.2. In the recent case of Republic v. Court of Appeals,

309 SCRA 110, 122 (1999), this Honorable Court had

the occasion to rule that a void judgment can be

completely disregarded by the parties as it is not

entitled to enforcement, to wit:

“(A) void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding effect or efficacy for any purpose or at any place. It cannot affect, impair or create rights. It is not entitled to enforcement and is, ordinarily, no protection to

26

those who seek to enforce. All proceedings founded on the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It, accordingly, leaves the parties litigants in the same position they were in before the trial.” (Emphasis supplied)

6.5. However, notwithstanding that the challenged Proclamation No. 1017 and

General Order No. 5 are void and of no legal effect, public respondents

are doing, or are suffering to be done, acts in violation of petitioner’s right

in the instant action and tending to render judgment in this case

ineffectual.

6.5.1. In particular, public respondents have pinpointed so-

called “targets” or “suspects” who are to be arrested

by the Philippine National Police despite lack of the

necessary warrants of arrest and lawful cause for

such arrests.

6.5.2. In addition, public respondent may yet again issue

another Order pursuant to said Proclamation which,

will again endanger the lives of countless innocent

civilians and lead to future raids on legitimate media

outfits and thereby result to further infringement on

the exercise of their civil and political liberties.

6.6. Needless to state, such damages to the civil and political rights of

petitioners and of the Filipino in general are grave and irreparable, which

is defined by this Honorable Court as those that are of such constant

recurrence and are incapable of being justly compensated, to wit:

“An injury. . . of such constant and frequent recurrence that no fair and reasonable redress can be had therefor in a

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court of law, or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation. It is considered irreparable injury when it cannot be adequately compensated in damages due to the nature of the injury itself or the nature of the right or property injured or when there exists no certain pecuniary standard for the measurement of damages. (Philippine Airlines, Inc. v. NLRC, 287 SCRA 672, 685 [1998])

6.7. Hence, unless public respondent, her agents or any person acting in her

behalf are restrained from implementing and executing Proclamation No.

1017 as well as the orders issued subsequent thereto, i.e. General Order

No. 5, petitioner stands to suffer grave and irreparable injury.

6.8. Petitioners are ready, willing and able to post a bond in favor of

respondents, in such amount as this Honorable Court may fix to answer

for any and all damages which respondents may suffer by reason of the

issuance of a writ of preliminary injunction should this Honorable Court

finally decide that petitioners are not entitled thereto.

PRAYER

WHEREFORE, petitioners most respectfully and humbly pray that:

1. Immediately upon the filing of this Petition, this Honorable Court

issue a Temporary Restraining Order (TRO) enjoining and restraining

respondents, their representatives or any person or agent acting in their behalf,

from enforcing and/or executing the Proclamation No. 1017 and General Order

No. 5 and other orders issued subsequent thereto.

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2. After due notice, hearing and posting of the requisite bond, this

Honorable Court issue a writ of preliminary injunction restraining and enjoining

respondents, their representatives or any person or agent acting in their behalf,

from enforcing and/or executing the Proclamation No. 1017 and General Order

No. 5 and the orders issued subsequent thereto.

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

consideration of the issues, this Honorable Court render judgment --

a) making the writ of preliminary injunction permanent;

and

b) annulling and setting aside the challenged

Proclamation issued on 24 February 2006 and General Order No. 5

issued pursuant thereto;

Other just and equitable reliefs are likewise prayed for.

Pasig City, Metro Manila, for City of Manila, 28 February 2006.

ORLANDO E. MENDIOLAGeneral Counsel

IBP Building, Doña Julia Vargas AvenueOrtigas Center, Pasig City

PTR No. 2952954 – 01/05/06 – Pasig CityIBP Lifetime Roll No. 02732 – 01/10/02 – Quezon City

Roll of Attorneys No. 34714

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COPY FURNISHED:

EXECUTIVE SECRETARY EDUARDO ERMITAGENERAL GENEROSO SENGADIRECTOR GENERAL ARTURO LOMIBAOOffice of the PresidentMalacanang Palace, Manila

OFFICE OF THE CHIEF OF STAFFCamp Aguinaldo, EDSAQuezon City

CHIEF, PHILIPPINE NATIONAL POLICECamp Crame, EDSA, Quezon City

EXPLANATION AS TO MODE OF SERVICE

The foregoing Petition for Certiorari and Prohibition is being served on the respondents by registered mail due to time constraints and the present unavailability of messengerial personnel.

ORLANDO E. MENDIOLA

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