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DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

Courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review. ¹ On this premise, I stood apart from my colleagues in dismissing the petition in Lacson v. Perez .² Their reason was that President Gloria Macapagal-Arroyos lifting of the declaration of a state of rebellion rendered moot and academic the issue of its constitutionality.Looking in retrospect, my fear then was the repetition of the act sought to be declared unconstitutional.

No more than three (3) years have passed, and here we are again haunted by the same issue.

I

A brief restatement of the facts is imperative.

In the wee hours of July 27, 2003, three hundred twenty-three (323) junior officers and enlisted men of the Armed Forces of the Philippines (AFP) took over the Oakwood Premier Apartments, Ayala Center, Makati City.Introducing themselves as the Magdalo Group, they claimed that they went to Oakwood to air their grievances about graft and corruption in the military, the sale of arms and ammunitions to the enemies of the state, the bombings in Davao City allegedly ordered by Gen. Victor Corpus, then Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), the increased military assistance from the United States, and micromanagement in the AFP by Gen. Angelo Reyes, then Secretary of the Department of National Defense.³ The military men demanded the resignation of the President, the Secretary of National Defense and the Chief of the Philippine National Police.

At about 9:00 A.M. of the same day, President Arroyo gave the Magdalo Group until 5:00 P.M. to give up their positions peacefully and return to the barracks.At around 1:00 P.M. , she issued Proclamation No. 427 and General Order No. 4 declaring the existence of a state of rebellion and calling out the AFP to suppress the rebellion.

Shortly before the 5:00 P.M. deadline, President Arroyo announced an extension until 7:00 P.M.During the two-hour reprieve, negotiations between the Magdalo Group and various personalities took place.The rebels agreed to return to the barracks.They left the Oakwood premises at 11:00 P.M.

On July 28, 2003, Agents of the National Bureau of Investigation (NBI) searched the house owned by Ramon Cardenas at 2177 Paraiso St., Dasmarias Village, Makati City.After the raid and the recovery of evidence claimed to link him to rebellion, Cardenas, accompanied by Atty. Rene Saguisag, went to the CIDG in Camp Crame.On the same day, Cardenas was brought to the Department of Justice for inquest proceeding.He was later charged with the crime of rebellion.

The Mandaluyong City Police likewise searched the townhouses belonging to Laarni Enriquez, allegedly used as staging areas by the Magdalo Group.

On August 1, 2003 , President Arroyo lifted her declaration of a state of rebellion through Proclamation No. 435.

Meanwhile, on August 4, 2003, Secretary Jose Lina, Jr. of the Department of the Interior and Local Government, forwarded to the DOJ the affidavit-complaint for coup detat of PC Chief Superintendent Eduardo Matillano against Senator Gregorio Honasan, Ernesto Macahiya, George Duldulao and several John and Jane Does numbering about 1,000.

On August 8, 2003, PNP Chief Inspector Jesus Fernandez of the Eastern Police District referred to the DOJ an investigation report recommending that Enriquez and a certain Romy Escalona be prosecuted for rebellion and insurrection.

II

I regret that I cannot give my assent to the ponencia of Mr. Justice Dante O. Tinga even as I admire it for its lucidity and historical accuracy.The passage of time has not changed my Opinion in Lacson v. Perez that President Arroyos declaration of a state of rebellion is unconstitutional.

I cannot subscribe to the majoritys view that the declaration of a state of rebellion is justified under Article VII of the 1987 Constitution granting her Executive and Commander-in-Chief powers.

III

Consistent with my previous stand, it is my view that nowhere in the Constitution can be found a provision which grants to the President the authority to declare a state of rebellion, or exercise powers, which may be legally allowed only under a state of martial law.President Arroyo, in declaring a state of rebellion, deviated from the following provisions of the Constitution:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Sec. 18.The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever if 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 corpusor place the Philippines or any part thereof under martial law.Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

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

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases 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.⁴ ςrνll

The powers of the President when she assumed the existence of rebellion are laid down by the Constitution.She may (1) call the armed forces to prevent or suppress lawless violence, invasion or rebellion; (2) suspend the privilege of the writ of habeas corpus; or (3) place the Philippines or any part thereof under martial law.Now, why did President Arroyo declare a state of rebellion when she has no such power under the Constitution?

If President Arroyos only purpose was merely to exercise her calling out power, then she could have simply ordered the AFP to prevent or suppress what she perceived as an invasion or rebellion.Such course raises no constitutional objection, it being provided for by the above-quoted provisions.However, adopting an unorthodox measure unbounded and not canalized by the language of the Constitution is dangerous.It leaves the people at her mercy and that of the military, ignorant of their rights under the circumstances and wary of their settled expectations.One good illustration is precisely in the case of invasion or rebellion.Under such situation, the President has the power to suspend the privilege of the writ of habeas corpusor to declare martial law.Such power is not a plenary one, as shown by the numerous limitations imposed thereon by the Constitution, some of which are: (1) the public safety requires it; (2) it does not exceed sixty (60) days; (3) within forty-eight (48) hours, she shall submit a report, in writing or in person, to Congress; (4) The Congress, by a vote of at least a majority of all its members, may revoke such proclamation or suspension.All these limitations form part of the citizens settled expectations.If the President exceeds the set limitations, the citizens know that they may resort to this Court through appropriate proceeding to question the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ.In turn, this Court shall promulgate its Decision within thirty days from the filing of the proper pleading.All the foregoing guarantees and limitations are absent in the declaration of a state of rebellion.It is not subject to clear legal restraints.How then can the citizens determine the propriety of the Presidents acts committed pursuant to such declaration?How can excess of power be curtailed at its inception?

Indeed, I see 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.Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional.⁵ 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.⁶ ςrνll

I cannot simply close my eyes to the dangers that lurk behind the seemingly harmless declaration of a state of rebellion.Still fresh from my memory is the May 1, 2001 civil unrest.On such date, President Arroyo placed Metro Manila under a state of rebellion because of the violent street clashes involving the loyalists of former President Joseph Estrada and the police authorities.Presidential Spokesperson Rigoberto Tiglao told reporters, We are in a state of rebellion.This is not an ordinary demonstration.⁷ Immediately thereafter, there were threats of arrests against those suspected of instigating the march to Malacanang.At about 3:30 in the afternoon, Senator Juan Ponce Enrile was arrested in his house in Dasmarias Village, Makati City by a group led by Gen. Reynaldo Berroya, Chief of the Philippine National Police Intelligence Group.⁸ Thereafter, he and his men proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP Chief, now Senator Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the Peoples Movement Against Poverty (PMAP). ⁹ Former Justice Secretary Hernando Perez said that he was studying the possibility of placing Senator Miriam Defensor-Santiago under the Witness Protection Program.Director Victor Batac, former Chief of the PNP Directorate for Police Community Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to Gen. Berroya.Both denied having plotted the siege.On May 2, 2001, former Ambassador Ernesto Maceda was arrested.

On President Arroyos mere declaration of a state of rebellion, police authorities arrested without warrants the above-mentioned personalities.In effect, she placed the Philippines under martial law without a declaration to that effect and without observing the proper procedure.This is a very dangerous precedent.The Constitution provides that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure 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.¹⁰ Obviously, violation of this constitutional provision cannot be justified by reason of the declaration of a state of rebellion for such declaration, as earlier mentioned, is unconstitutional.

Even under Section 5, Rule 113 of the Revised Rules on Criminal Procedure¹¹ the warrantless arrests effected by President Arroyos men are not justified.The above-mentioned personalities cannot be considered to have committed, are actually committing, or are attempting to commit an offense at the time they were arrested without warrants.None of them participated in the riot which took place in the vicinity of the Malacanang Palace .Some of them were in their respective houses performing innocent acts.The sure fact is they were not in the presence of Gen. Berroya.Clearly, he did not see whether they had committed, were committing or were attempting to commit the crime of rebellion.¹² It bears mentioning that at the time some of the suspected instigators were arrested, a long interval of time already passed and hence, it cannot be legally said that they had just committed an offense.Neither can it be said that Gen. Berroya or any of his men had personal knowledge of facts or circumstances that the persons to be arrested have committed a crime.That would be far from reality.

The circumstances that arose from President Arroyos resort to the declaration of a state of rebellion to suppress what she perceived as the May 1, 2001 rebellion are the very evils that we should prevent from happening again.This can only be done if we strike such unusual measure as unconstitutional.

Significantly, while the Oakwood event ended peacefully on the night of July 27, 2003, President Arroyos declaration of a state of rebellion continued until the lifting thereof on August 1, 2003.This means that although the alleged rebellion had ceased, the Presidents declaration continued to be in effect.As it turned out, several searches and seizures took place during the extended period.

Generally, the power of the President in times of war, invasion or rebellion and during other emergency situations should be exercised jointly with Congress.This is to insure the correctness and propriety of authorizing our armed forces to quell such hostilities.Such collective judgment is to be effected by heightened consultation between the President and Congress.Thus, as can be gleaned from the provisions of the Constitution, when the President proclaims martial law or suspends the privilege of the writ, he 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.Not only that, Section 23, Article VI of the Constitution provides that: The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.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 powers necessary and proper to carry out a declared national policy.Clearly, the Constitution has not extended excessive authority in military, defense and emergency matters to the President.Though the President is designated as the Commander-in-Chief of all armed forces of the Philippines, the textual reed does not suffice to support limitless authority.Born by the nations past experiences, the concurrence of the Congress is required as a measure to ward-off totalitarian rule.By declaring a state of rebellion, President Arroyo effectively disregarded such concurrent power of Congress.At this point, let it be stressed that the accumulation of both the executive and legislative powers in the same hands constitutes the very definition of tyranny.

By sustaining the unusual course taken by President Arroyo, we are traversing a very dangerous path.We are opening the way to those who, in the end, would turn our democracy into a totalitarian rule.While it may not plunge us straightway into dictatorship, however, it is a step towards a wrong direction.History must not be allowed to repeat itself.Any act which gears towards possible dictatorship must be severed at its inception.As I have stated in my previous dissent, our nation had seen the rise of a dictator into power.As a matter of fact, the changes made by the 1986 Constitutional Commission in the martial law text of the Constitution were to a large extent a reaction against the direction which this Court took during the regime of President Marcos.¹³ In ruling that the declaration of a state of rebellion is a prerogative of the President, then, I say, our country is tracing the same dangerous road of the past.

IV

The majority cited U.S. cases in support of their stand that the Presidents proclamation of state of rebellion is in accordance with the Constitutional provisions granting her powers as chief executive.I find that In re Debs¹⁴ and Prize Cases¹⁵ illustrate an executive power much larger than is indicated by the rudimentary constitutional provisions.Clearly, these cases cannot support the majoritys conclusion that: The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office.Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State.

There are reasons why I find the above conclusion of the majority naccurate.From a survey of U.S. jurisprudence, the outstanding fact remains that every specific proposal to confer uncontrollable power upon the President is rejected.¹⁶ In re Debs,¹⁷ the U.S. Supreme Court Decision upheld the power of President Grover Cleveland to prevent the strike of railway workers on the ground that it threatened interference with interstate commerce and with the free flow of mail.The basic theory underlying this case that the President has inherent power to act for the nation in cases of major public need was eroded by the Youngstown Sheet & Tube Co. v. Sawyer, also known as the Steel Seizure Case.¹⁸ This case aroused great public interest, largely because of its important implications concerning the boundaries of presidential powers.The seven separate opinions consist of 128 pages in the Reports and contain a great deal of important date on the powers of the Chief Executive.The same case demonstrates well that executive powers, even during an alleged emergency, may still be subject to judicial control.The decision constitutes a dramatic vindication of the American constitutional government.¹⁹ Mr. Justice Andrew Jackson, concurring in the judgment and opinion of the Court, eloquently expounded on the executive and commander-in-chief powers, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The Solicitor general seeks the power of seizure in three clauses of the Executive Article, the first reading, The executive Power shall be vested in a President of the United States of America . Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.Continental European examples were no more appealing.And if we seek instruction from our own times, we can match it only from the executive powers in those governments were disparingly describe as totalitarian.I cannot accept the view that this clause is a grant in bulk of all conceivable executive powers but regard it as an allocation to the presidential office of the generic powers thereafter stated.

The clause on which the Government next relies is that The President shall be Commander in Chief of the Army and Navy of the United States These cryptic words have given rise to some of the most persistent controversies in our constitutional history.Of course, they imply something more than an empty title.But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by non-assertion yet cannot say where it begins or ends.

xxx xxx

The third clause in which the Solicitor General finds seizure powers is that he shall take care that the laws be faithfully executedThat authority must be matched against words of the Fifth Amendment that No person shall bedeprived of life, liberty or property, without due process of lawOne gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther.These signify about all there is of the principle that ours is a governmental of laws, not of men, and that we submit ourselves to rulers only if under rules.

Further, Mr. Justice Jackson referred to the discussion of inherent executive powers as loose and irresponsible use of adjectives.His wrath could be seen as reserved for those who use the word inherent to mean unlimited.²⁰ Thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations.The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.

Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers.Inherent powers, implied powers, incidental powers, plenary powers, war powers and emergency powers are used, often interchangeably and without fixed or ascertainable meanings.

The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court.The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy.While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test

In re Debs also received a serious blow in United States v. United States District Court.²¹ The Supreme Court Justices unanimously rejected the inherent executive authority to engage in warrantless electronic surveillance in domestic security cases.Thus, where a substantial personal interest in life, liberty or property is threatened by presidential action, In re Debs is regarded more as an anachronism than authority.

In Prizes Cases, by a vote of 5 to 4, the U.S. Supreme Court upheld President Abraham Lincolns authority to impose a blockade.Under the U.S. Constitution, only Congress, empowered to declare a war, could impose a blockade.It must be emphasized, however, that there is a distinction between the role of the U.S. President in domestic affairs and in foreign affairs.The patterns in the foreign and domestic realms are quite different.The federal regulation of domestic affairs has its constitutional origins in the people and the states, and its initiation is allocated primarily to Congress (not the Executive). The constitutional role for the executive in domestic matters is thus largely ancillary to that of Congress.²² Thus, while it is recognized that executive power is predominant in foreign affairs, it is not so in the domestic sphere.This distinction should be considered in invoking U.S. jurisprudence.

Clearly, the trail of U.S. jurisprudence does not support the view that the Executive and Commander-in-Chief clauses of the Constitution grant the President such broad power as to give her the option of disregarding the other restrictive provisions of the Constitution.The purpose of the Constitution is not only to grant power, but to keep it from getting out of hand.The policy should be where the Constitution has laid down specific procedures on how the President should deal with a crisis, it is imperative that he must follow those procedures in meeting the crisis.These procedures serve as limitations to what would otherwise be an unbounded exercise of power.

V

In fine, may I state that every presidential claim to a power must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.The powers of the President are not as particularized as are those of Congress.Enumerated powers do not include undefined powers, as what the majority would want to point out.I state once more that there is no provision in our Constitution authorizing the President to declare a state of rebellion.Not even the constitutional powers vested upon her include such power.

WHEREFORE, I vote to GRANT the petitions.Proclamation No. 427 and General Order No. 4 are declared UNCONSTITUTIONAL.

Endnotes:

¹ Salva v. Makalintal, G.R. No. 132603, September 18, 2000.

² G.R. No. 147780, May 10, 2001, 357 SCRA 757.

³ The Report of the Fact-Finding Commission at 1.

⁴ Section 18, Article VII of the 1987 Constitution.

⁵ Smith/Cotter, Powers of the President During Crises, 1972 at 13.

⁶ Freund, Sutherland, Howe, Brown, Constitutional Law, 4^th Ed. 1977 at 656.

⁷ inq7.net, May 2, 2001 at 1.

⁸ inq7.net, May 1, 2001.

⁹ Id.at 1.

¹⁰ Article III, Section 2, 1987 Constitution.

¹¹ Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person may, without a warrant, arrest a person:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

(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 and circumstances that the person to be arrested has committed it; x x x.

¹² But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyos declaration of a state of rebellion.Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime.Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered.In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil v. Ramos, 187 SCRA 311 (1990), quoted below must be given a second look.

I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense.That is a dangerous doctrine.A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the continuing offense of subversion.Libertarians were appalled when that doctrine was imposed during the Marcos regime.I am alarmed that even now this new Court is willing to sustain it.I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures.We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom.Even if it be argued that the military should be given every support in our fight against subversion, I maintain that that fight must be waged honorably, in accordance with the Bill of Rights.I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against.I submit that our more important motivation should be what are we fighting for.

¹³ Bernas, S.J., The 1987 Constitution of the Republic of the Philippines , 1996 Edition at 789.

¹⁴ 158 U.S. 1092 (1894).

¹⁵ 2 Black 635,17 L. 459 (1863).

¹⁶ Freund, Sutherland, Howe, Brown, Constitutional Law, 4^th Ed. 1977 at 656.

¹⁷ 158 U.S. 564 (1895).

¹⁸ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).

¹⁹ Tresolini, American Constitutional Law, 1959 at 251.

²⁰ Tribe, American Constitutional Law, 1978 at 183.

²¹ 407 U.S. 297 (1972).

²² Tribe, supra.