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SEPARATE OPINION

YNARES-SANTIAGO, J.:

The fundamental issue in the petitions is the legality of Proclamation No. 427 issued by the President on July 27, 2003 declaring a state of rebellion.

The majority affirmed the declaration is legal because the President was only exercising a wedding of the Chief Executive and Commander-in-Chief powers.U.S. jurisprudence and commentators are cited discussing the awesome powers exercised by the U.S. President during moments of crisis¹ and that these powers are also available to the Philippine President.² Although the limits cannot be precisely defined, the majority concluded that there are enough residual powers to serve as the basis to support the Presidential declaration of a state of rebellion.³ The majority, however, emphasized that the declaration cannot diminish or violate constitutionally protected rights.⁴ They affirmed the legality of warrantless arrests of persons who participated in the rebellion, if circumstances so warrant⁵ with this clarification:[i]n other words, a person may be subjected to a warrantless arrests for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present.⁶ ςrνll

If the requisites for a warrantless arrests must still be present for an arrest to be made, then the declaration is a superfluity.I therefore shudder when a blanket affirmation is given to the President to issue declarations of a state of rebellion which in fact may not be the truth or which may be in affect even after the rebellion has ended.

Proclamation No. 427 was issued at 1:00 p.m. on July 27, 2003, at the height of the occupation of the Oakwood Premier Apartments in Ayala Center, Makati City, by 323 junior officers and enlisted men (Oakwood Incident), ⁷ which began in the early morning of July 27, 2003.⁸ Shortly after, the President issued General Order No. 4, ordering the Armed Forces of the Philippines and the Philippine National Police to use reasonable force, and pay due regard to constitutional rights, in putting down the rebellion.⁹ The Oakwood incident ended peacefully that same evening when the militant soldiers surrendered after negotiations.

From July 27 to August 1, 2003, search and recovery operations were conducted.Throughout the Oakwood Incident, searches were conducted in the non-occupied areas,¹⁰ and, with the recovery of evidence, staging points for the Oakwood Incident were found in Cavite, Makati and Mandaluyong.¹¹ After the soldiers left at around 11:00 in the evening of July 27, a search was conducted around the Oakwood premises.¹² These searches expanded in scope on the basis of recovered evidence.¹³ ςrνll

Ramon Cardenas, Assistant Executive Secretary in the previous administration, was arrested, presented to the media in handcuffs and broughtfor inquest proceedings before the Department of Justice (DOJ) in the morning of July 28.¹⁴ He was initially detained at the Office of the Anti-Organized Crime Division of the Criminal Investigation and Detection Group (CIDG), and brought to the DOJ in the afternoon of July 28.¹⁵ Cardenas was later charged with the crime of rebellion,¹⁶ but as of this writing has been allowed bail.

On July 31, 2003, 4 days after the militant group had surrendered peacefully, an official spokesperson from the DOJ declared that the Presidents indefinite imposition of the state of rebellion would make warrantless arrests a valid exercise of executive power.

The Court can take judicial notice that the police authorities were releasing to media evidence found purporting to link personalities in the political opposition, the most prominent of whom was Senator Gringo Honasan.Even Senator Loi Ejercito and Mayor JV Ejercitos names were being linked to the attempted uprising.

On August 1, 2003, the President issued Proclamation No. 435, declaring that the Armed Forces of the Philippines and the Philippine National Police had effectively suppressed and quelled the rebellion, and, accordingly, that the state of rebellion had ceased on that date.

The majority discussed only the abstract nature of the powers exercised by the Chief Executive, without considering if there was sufficient factual basis for the Presidents declaration of a state of rebellion and when it ended.In taking this position, the majority is returning, if not expanding, the doctrine enunciated in Garcia-Padilla v. Enrile,¹⁷ which overturned the landmark doctrine in Lansang v. Garcia.¹⁸ In Lansang, the Supreme Court upheld its authority to inquire into the factual bases for the suspension of the privilege of the writ of habeas corpus, and held that thisinquiry raises a judicial rather than a political question.In Garcia-Padilla, on the other hand, the ponencia held that Lansang was no longer authoritative, and that the Presidents decision to suspend the privilege is final and conclusive upon the courts and all other persons.

These two cases were decided prior to the 1987 Constitution, which requires this Court not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.¹⁹ This provision in the 1987 Constitution was precisely meant to check abuses of executive power.Martial Law was still fresh in the minds of the delegates in 1987!

The majority ignored the fact that the state of rebellion declared by the President was in effect five days after the peaceful surrender of the militant group.

The Presidents proclamation cites Section 18, Article VII of the Constitution as the basis for the declaration of the state of rebellion..

Section 18 authorizes the President, as Commander-in-Chief, to call out the Armed Forces, in order to suppress one of three conditions:(1) lawless violence, (2) rebellion or (3) invasion.²⁰ In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (1) suspend the privilege of the writ of habeas corpus, or (2) place the Philippines or any part thereof under martial law.

The majority made it clear that exercise of the Presidents Commander-in-Chief powers does not require the declaration of a state of rebellion or a declaration of a state of lawless violence or a state of invasion.When any of these conditions exist, the President may call out the armed forces to suppress the danger.

Thus, the declaration of a state of rebellion does not have any legal meaning or consequence.This declaration does not give the President any extra powers.It does not have any good purpose.

If the declaration is used to justify warrantless arrests even after the rebellion has ended, as in the case of Cardenas, such declaration or, at the least, the warrantless arrests, must be struck down.

Clearly defined in Article 134 of the Revised Penal Code is the crime of rebellion or insurrection, to wit:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

ART. 134.Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed by rising publicly and taking up arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the legislature, wholly or partially, of any of their powers or prerogatives.

On the other hand, a coup d etat is defined as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

ART. 134-A. Coup d etat. How committed. The crime of coup d etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office or employment, with or without civilian support or participation, for the purpose of seizing or diminishing state power.

Under these provisions, the crime of rebellion or insurrection is committed only by rising publicly or taking up arms against the Government.A coup d etat, on the other hand, takes place only when there is a swift attack accompanied by violence. Once the act of rising publicly and taking up arms against the Government ceases, the commission of the crime of rebellion ceases.Similarly, when the swift attack ceases, the crime of coup d etat is no longer being committed.

Rebellion has been held to be a continuing crime,²¹ and the authorities may resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court.²² However, this doctrine should be applied to its proper context i.e., relating to subversive armed organizations, such as the New Peoples Army, the avowed purpose of which is the armed overthrow of the organized and established government.Only in such instance should rebellion be considered a continuing crime.

When the soldiers surrendered peacefully in the evening of July 27, the rebellion or the coup d etat ended.The President, however, did not lift the declaration of the state of rebellion until 5 days later, on August 1, 2003.

After the peaceful surrender, no person suspected of having conspired with the soldiers or participated in the Oakwood incident could be arrested without a warrant of arrest.Section 5, Rule 113 of the Revised Rules of Court, which governs arrest without warrant, provides as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

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;chanroblesvirtuallawlibrary

(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; andcralawlibrary

x x xx x xx x x

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 and shall be proceeded against in accordance with section 7 of Rule 112.

Rule 113, Section 5, pars. (a) and (b) of the Rules of Court are exceptions to the due process clause in the Constitution.Section 5, par. (a) relates to a situation where a crime is committed or attempted in the presence of the arresting officer.

Section 5, par. (b), on the other hand, presents the requirement of personal knowledge, on the part of the arresting officer, of facts indicating that an offense had just been committed, and that the person to be arrested had committed that offense.

After the peaceful surrender of the soldiers on July 27, 2003, there was no crime that was being attempted, being committed, or had just been committed. There should, therefore, be no occasion to effect a valid warrantless arrest in connection with the Oakwood Incident.

The purpose of the declaration and its duration as far as the overeager authorities were concerned was only to give legal cover to effect warrantless arrests even if the state of rebellion or the instances stated in Rule 113, Section 5 of the Rules are absent or no longer exist.

Our history had shown the dangers when too much power is concentrated in the hands of one person.Unless specifically defined, it is risky to concede and acknowledge the residual powers to justify the validity of the presidential issuances.This can serve as a blank check for other issuances and open the door to abuses.The majority cite the exercise of strong executive powers by U.S. President Andrew Jackson.Was it not President Jackson who is said to have cynically defied the U.S. Supreme Courts ruling (under Chief Justice Marshall) against the forcible removal of the American Indians from the tribal lands by saying: The Chief Justice has issued his Decision, now let him try to enforce it? Others quote Madison as having gone further with: With what army will the Chief Justice enforce his Decision?chanroblesvirtualawlibrary

WHEREFORE, I vote for Proclamation No. 427 and General Order No. 4, issued on July 27, 2003 by Respondent President Gloria Macapagal-Arroyo, to be declared NULL and VOID for having been issued with grave abuse of discretion amounting to lack of jurisdiction.All other orders issued and action taken based on those issuances, especially after the Oakwood incident ended in the evening of July 27, 2003, e.g., warrantless arrests, should also be declared null and void.

Endnotes:

¹ Majority Opinion, at pp. 14 et seq.

² Id., at pp. 20 to 21.

³ Id. , at p. 22.

⁴ Id., at p. 23.

⁵ Id. , at pp. 23 to 24.

⁶ Id. , at p. 24.

⁷ Report of the Fact Finding Commission created by Adm. Ord. No. 78 dated 30 July 2003 (hereafter, Feliciano Report), at p. 1.

⁸ Feliciano Report, at p. 1.

⁹ Id., at pp. 18-19.

¹⁰ Id., at p. 28.

¹¹ Id.

¹² Id., at pp. 28 to 30.

¹³ Id.

¹⁴ Id., at p. 31.

¹⁵ Id.

¹⁶ Id.

¹⁷ 206 Phil. 392 (1983).

¹⁸ 149 Phil. 547 (1971).

¹⁹ Const., art. VIII, sec. 1.

²⁰ Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, 15 August 2000, 338 SCRA 81.

²¹ See, e.g., Lansang v. Garcia, supra; Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251.

²² Lacson v. Perez, G.R. No. 147780, 10 May 2001, 357 SCRA 757.