speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress
5. David v. Arroyo
Petitioners: Prof. DAVID, TAÑADA III, LLAMAS, ROQUE, JR., BUTUYAN, RAYEL, MALLARI, BAGARES, BOLASTIG
Respondents: GMA (PRESIDENT AND COMMANDER-IN-CHIEF), Exec. Sec. ERMITA, HON.
AVELINO CRUZ II (Sec of Nat’l Def.), Gen. SENGA (COS AFP), Dir. Gen. LOMIBAO (PNP Chief)
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Ponente: J. Sandoval-Gutierrez
SUMMARY: These 7 consolidated petitions for certiorari and prohibition allege that in issuing PP 1017 and GO 5, PGMA committed GAD. PGMA issued the said orders in lieu of the escape of some Magdalo members and discovery of the assasination plot of PGMA.
This led to the cancellation of rally permits issued by the Govertnment. Several activists including Petitioner David were arrested while several newspaper companies were raided. Petitioners contend that by committing such acts respondent officials are trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional.The SC ruled that PP1017 and GO 5 are constitutional IN PART. PP1017 is CONSTITUTIONAL as it constitutes a call by PGMA on the AFP to prevent or suppress lawless violence. It is UNCONSTITUTIONAL insofar as it commads the AFP to enforce laws not related to lawless violence. Also, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but it does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence."Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of David and Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880;
the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.
FACTS:
February 24, 2006 (during the celebration of the 20th Anniversary of People Power I)– GMA declared Pres. Proc. 107 (State of National Emergency) to be implemented by Gen. Order No. 5 due to the escape of some Magdalo members and the discovery of a plan (Oplan Hackle I) to assassinate GMA.
o Purpose of the law: to suppress lawlessness and the connivance of extremists to bring down the government
GMA cancelled all plans to celebrate EDSA I and revoked all permits issued for rallies and other public organization/meeting.
KMU head Randolf David proceeded to rally,despite the revocation of their permit, which led to his arrest.
Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by theCriminal Investigation and Detection Group(CIDG) and they seized and confiscated anti-GMA articles and write ups.
Later still, another known anti-GMA news agency (Malaya and Abante) was raided and seized.
On the same day, Beltran of Anakpawis, was also arrested.
o Ground of arrest: warrant of arrest issued way back in 1985 for his actions against Marcos.
o Supporters cannot visit him in jail because of the current imposition of PP 1017 and GO 5.
March 3, 2006 - GMA issued PP 1021 w/c declared that the state of national emergency ceased to exist.
David and some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be validly declared by the president for such power is reposed in Congress.
o Also such declaration is actually a declaration of martial law.
o Olivares-Cacho also averred that the emergency contemplated in the Constitution are those of natural calamities and that such is an overbreadth.
Petitioners claim that PP 1017 is an overbreadth because it encroaches upon protected and unprotected rights.
The Sol-Gen argued that the issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of PP 1021.
o The Sol-Gen averred that PP 1017 is within the president’s calling out power, take care power and take over power.
ISSUE:
Whether the Supreme Court can review the factual bases of PP 1017.
Whether PP 1017 and G.O. No. 5 are unconstitutional.
o Facial Challenge o Constitutional Basis o As Applied Challenge
HELD:
The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by PGMA on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL.
In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does
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not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence."
Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.
RATIO:
Resolution by the SC on the Factual Basis of its declaration
Petitioners were not able to prove that GMA has factual basis in issuing PP 1017 and GO 5
SolGen’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records.
Petitioners presented nothing to refute such events
The President was justified in issuing PP 1017 calling for military aid given the seriousness of the incidents.
Resolution by the SC on the Facial Challenge: Overbreadth Theory
Overbreadth doctrine is an analytical tool developed for testing ‘on their faces’
statutes in free speech cases.
The 7 consolidated cases at bar are not primarily ‘freedom of speech’ cases.
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct.
o It is call upon the AFP to prevent or suppress all forms of lawless violence.
The overbreadth doctrine is not intended for testing the validity of a law that
‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.’
Undoubtedly, lawless violence, insurrection and rebellion are considered ‘harmful’
and ‘constitutionally unprotected conduct.’
Claims of facial overbreadth are entertained in cases involving statutes which seek to regulate only ‘spoken words’ and again, that ‘overbreadth claimshave been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.’
Here, the fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Resolution by the SC on the Constitutional Basis of its declaration.
Calling Out Power Doctrine
The SC considered the President’s ‘calling-out’ power as a discretionary power solely vested in his wisdom.
o ‘This does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion.
GMA has validly declared PP 1017 for the Constitution grants the President, as Commander-in-Chief, a ‘sequence’ of graduated powers.
o From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law.
o ONLY criterion for the exercise of the calling-out power is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’ And such criterion has been met.
The Take Care Doctrine
Petitioners aver that PP 1017 violated Sec. 1, Art. 6 of the Constitution for it arrogated legislative power to the President. Such power is vested in Congress.
o Assailed clause: ‘to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.’
The SC ruled that the assailed PP1017 is unconstitutional insofar as it grants GMA the authority to promulgate ‘decrees.’
The president can only “take care” of the carrying out of laws but cannot create or enact laws.
Take Over Power Doctrine
The president cannot validly order the taking over of private corporations or
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institutions such as the Daily Tribune without any authority from Congress.
On the other hand, the word ‘emergency’ contemplated in the constitution is not limited to natural calamities but rather it also includes rebellion.
The SC made a distinction:
o The president can declare the state of national emergency but her exercise of emergency powers does not come automatically after it for such exercise needs authority from Congress.
o The authority from Congress must be based on the following:
1. There must be a war or other emergency (Economic, Natural Disaster or National Security).
2. The delegation must be for a limited period only.
3. The delegation must be subject to such restrictions as the Congress may prescribe.
4. The emergency powers must be exercised to carry out a national policy declared by Congress.
Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration
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 SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it.
It is a valid exercise of the calling out power of the president by the president.
Resolution by the SC using the As Applied Challenge.
There is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal. (The SC analyzed the DAVID PETITION)
On Warrantless Searches and Seizures.
Neither of the 2 exceptions (in flagrante delicto or personal knowledge that the person being arrested committed the crime) justifies David’s warrantless arrest.
o During the inquest for the charges of inciting to seditionand violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now"
o Officers assumed that David was the leader of the rally. He was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition.
o Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.
On right to peaceably assemble.
"Assembly" - a right on the part of the citizens to meet peaceably for consultation in respect to public affairs.
o necessary consequence of our republican institution and complements the right of speech
o Freedom of expression - not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent.
o The right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.
David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. The charges of inciting to sedition and violation of BP 880 were mere afterthought.
o De Jonge v. Oregon - Peaceable assembly for lawful discussion cannot be made a crime. xxx If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
SC likewise considers the dispersal and arrest of the members of KMU et al.
unwarranted.
o Done merely on the basis of Malacañang’s directive canceling all permits previously issued by LGUs.
o The cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent.”
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o Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it.
o Respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.
Under BP 880, the authority to regulate assemblies and rallies is lodged with the LGUs. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger.
o Petitioners were not even notified and heard on the revocation of their permits. Such absence of notice is a fatal defect.
o When a person’s right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.