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^{DISSENTING OPINION}

KAPUNAN, J.:

The right against unreasonable searches and seizure has been characterized as belonging in the catalog of indispensable freedoms.

Among deprivation of rights, none is so effective cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.¹cräläwvirtualibräry

Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against impending warrantless arrests upon the order of the Secretary of Justice. ² Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson. ³ Separate petitioners were also filed by Senator Juan Ponce Enrile, ⁴ Former Ambassador Ernesto M. Maceda, ⁵ Senator Miriam Defensor-Santiago, ⁶ Senator Gregorio B. Honasan, ⁷ and the Integrated Bar of the Philippines (IBP). ⁸cräläwvirtualibräry

Briefly, the order for arrests of these political opposition leaders and police officers stems from the following facts:

On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estradas supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyist and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken.

Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies.

In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans Memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna.

In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacaan Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacaan. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt.

At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a state of rebellion in Metro Manila:

Presidential Proclamation No. 38

DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION

WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code;

WHEREAS, armed groups recruited by known an unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion;

In view of the foregoing, I am issuing General Order No. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed forces of the Philippines and the Philippine National Police to suppress and quell the rebellion.

City of Manila, May 1, 2001.

The President Likewise issued General Order No. 1 which reads:

GENERAL ORDER NO. 1

DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION

WHEREAS, the angry mob and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones, and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code;

WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion.

I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights.

City of Manila, May 1, 2001.

Pursuant to the proclamation, several key leaders of the position were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far failed to apprehend them.

Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was ordered released by the Court on cash bond.

The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of state of rebellion by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the bill of rights under the Constitution.

The declaration of a state of rebellion is supposedly based on Section 18, Article VII of the Constitution which reads:

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 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 an agencies over civilians where the 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.

Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion. ⁹ In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a state of rebellion (or, for that matter, of lawless violence or invasion). The term state of rebellion has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i.e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is legal surplusage. But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process, ¹⁰ the rights to free speech and peaceful assembly to petition the government for redress of grievances, ¹¹ and the right against unreasonable searches and seizures, ¹² among others.

In Integrated Bar of the Philippines vs. Zamora, et al., ¹³ the Court held that:

x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to delcare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius.

x x x

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the president the widest leeway and broadcast discretion in using the calling out power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court.

On the other hand, if the motive behind the declaration of a state of rebellion is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens civil liberties, the so-called state of rebellion partakes the nature of martial law without declaring it as such. It is a truism that a law or rule may itself be fair or innocuous on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution. ¹⁴ In an ironic sense, a state of rebellion declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a heavier burden on the peoples civil liberties than the suspension of the privilege of the writ of habeas corpus and the declaration of martial law because in the latter case, built-in safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) the sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding. ¹⁵cräläwvirtualibräry

No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitutions Bill of Rights, Article III, reads:

SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of lawless violence, invasion or rebellion only authorizes the President to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion.

Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the president to order the arrest of any person. The only significant consequence of the suspension of the writ of habeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications:

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.

In the instant case, the president did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a state of rebellion, at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures.

As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides:

SEC. 5. Arrest without warrant; when lawful. - A police officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

xxx

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail shall be proceeded against in accordance with section 7 of the Rule 112.

It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a judge after determining personally the existence of probable cause after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met:

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.¹⁶cräläwvirtualibräry

A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the person arrested has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer. Or if it be a case of an offense which has just been committed, that the police officer making the arrest has personal knowledge of facts or circumstances that the person to be arrested has committed it.

Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents theory is based on Umil vs. Ramos, ¹⁷ where this court held:

The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes.¹⁸cräläwvirtualibräry

Following this theory, it is argued that under Section 5(a), a person who has committed, is actually committing, or is attempting to commit rebellion and may be arrested without a warrant at any time so long as the rebellion persists.

Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion ¹⁹ which justified their arrests without warrants.

In contrast, it has not been alleged that the person to be arrested for their alleged participation in the rebellion on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense or rebellion. ²⁰ in other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte, ²¹ the term in his [the arresting officers] presence was defined thus:

An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made.²²cräläwvirtualibräry

This requirement was not complied with particularly in the arrest of Senator Enrile. In the Courts Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. ²³ Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense.

At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile, ²⁴ a case decided during the Marcos martial law regime. ²⁵ It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case ²⁶ are apropos:

FERNAN, C.J., concurring and dissenting:

Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adopt at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the right to insist during the pre-trial or trial on the merits (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.²⁷ (Underscoring supplied)

GUTIERREZ, JR., J., concurring and dissenting opinion

Insofar as G.R. No. 81567 is concerned, I join the other dissenting Justices in their observations regarding continuing offenses. To base warrantless arrest on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioners surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension.²⁸ (Underscoring supplied)

CRUZ, J., concurring and dissenting:

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.²⁹ (Underscoring supplied)

FELICIANO, J., concurring and dissenting:

12. My final submission, is that, the doctrine of continuing crimes, which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the continuing crime doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the continuing crimes doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of membership in any subversive association:

a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such or association or organization in any form whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

xxx

f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

xxx

g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization;

xxx

k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization.

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Courts function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving.³⁰ (underscoring supplied)

It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because it interposes an orderly procedure involving judicial impartiality whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of the probable cause. ³¹cräläwvirtualibräry

The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accuseds adversary and accuser, his judge and jury. ³²cräläwvirtualibräry

A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpus rests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters.

Justice Secretary Hernando Perez is reported to have announced that the lifting of the state of rebellion on May 7, 2001 does not stop the police from making warrantless arrests. ³³ If this is so, the pernicious effects of the declaration on the peoples civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the continuing crime of rebellion defined as such by executive fiat. The list of the perceived leaders, financiers and supporters of the rebellion to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the peoples Bill of Rights. It is of no small significance that four of the Petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of the people to choose their officials, is violated.

In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Pao: ³⁴cräläwvirtualibräry

The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.

Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to?

WHEREFORE , I vote as follows:

(1) Give DUE COURSE to and GRANT the petitions;

(2) Declare as NULLand VOID the orders of arrest issued against petitioners;

(3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of proclamation No. 38 and General order No. 1 of the President.

SO ORDERED.

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Endnotes:

Dissenting Opinion, J. Jackson, in Brinegar v. United States, 338 U.S. 2084 (1949).[1]

² G.R. No. 147780, for Prohibition, Injunction, Mandamus and Habeas Corpus.

³ G.R. No. 147810, for Certiorari and Prohibition.

⁴ G.R. No. 147785, for Habeas Corpus.

⁵ G.R. No. 147787, for Habeas Corpus.

⁶ G.R. No. 147781, for Mandamus.

⁷ G.R. No. 147818, for Injunction.

⁸ G.R. No. 147819, for Certiorari and Mandamus.

⁹ Integrated Bar of the Philippines v. Zamora, et al. G.R. No. 141284, August 15, 2000.

¹⁰ CONSTITUTION, ARTICLE III, SECTION 1.

¹¹ CONSTITUTION, ARTICLE III, SECTION 4.

¹² CONSTITUTION, ARTICLE III, SECTION 2.

¹³ G.R. No. 141284, supra.

¹⁴ See Yick Wo v. Hopkins, 118 U.S. 356.

¹⁵ Id., at Article VII, SECTION 18.

¹⁶ People v. Burgos, 144 SCRA 1, 14 (1986).

¹⁷ 187 SCRA 311 (1990).

¹⁸ Id., at 318.

¹⁹ 187 SCRA 311, 318, 321, 323-24. (1990).

²⁰ Under Article 134 of the Revised Penal Code, these acts would involve rising publicly and taking up arms against the Government: (1) to remove from the allegiance of the Government or its laws, the entire, or a portion of Philippine territory, or any body of land, naval or other armed forces, or (2) to deprive the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

²¹ 16 Phil 516 (1910).

²² Id., at 519.

²³ G.R No. 147785.

²⁴ 121 SCRA 472 (1983).

²⁵ See Note 396 in BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, p. 180.

²⁶ Umil v. Ramos, 202 SCRA 251 (1991).

²⁷ Id., at 274.

²⁸ Id., at 279.

²⁹ Id., at 284.

³⁰ Id., at 293-295.

³¹ LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549. Citations omitted.

³² Presidential Anti-Dollar Salting Task Force v. CA, 171 SCRA 348 (1989).

³³ Manila Bulletin issue of May 8, 2001 under the heading Warrantless arrest continue by Rey G. Panaligan:

Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion in Metro Manila does not ban the police from making warrantless arrest of suspected leaders of the failed May 1 Malacaang siege.

In a press briefing, Perez said, we can make warrantless arrest because that is provided for in the Rules of Court, citing Rule 113.

³⁴ 134 SCRA 438 (1985).