Chapter 21

David v. Arroyo:
Constitutionality of Proclaiming
a State of National Emergency

The Courts Decision on this landmark case

started with a paean to our peoples liberty:

All powers need some restraint; practical adjustments rather

than rigid formula are necessary.[1] Superior strength the use of
force cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty

is thus most relevant. He said: In cases involving liberty, the
scales of justice should weigh heavily against government and
in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Laws and actions that restrict
fundamental rights come to the courts with a heavy presumption
against their constitutional validity.[2]

The Facts
 On February 24, 2006, as the country
celebrated the 20th Anniversary of EDSA People
Power I, President Gloria Macapagal-Arroyo issued
Presidential Proclamation No. 1017 (PP 1017)
declaring a state of national emergency. [3]
On the
same day, she also issued General Order No. 5 (GO
5), [4]
implementing the proclamation. A week later,
after these seven Petitions had been filed before the
Supreme Court, she lifted PP 1017 and declared that
the national emergency had ceased to exist. [5]

The factual bases [6]

of PP 1017 and GO 5,
according to respondents, comprised a conspiracy to
unseat or assassinate President Arroyo. It was
allegedly hatched by some military officers, leftist
insurgents, and members of the political opposition.
Respondents justified their moves by saying that the
aim to oust or assassinate the President and to take
over the reigns of government had posed a clear and
present danger.

Following the issuance of PP 1017 and GO 5,

the Office of the President announced the
cancellation of all programs and activities related to
the 20th anniversary celebration of EDSA People
Power I and revoked the permits to hold rallies
issued earlier by local governments. Presidential
Chief of Staff Michael Defensor further announced
that warrantless arrests and take-over of facilities,
including media, can already be implemented. [7]

Nevertheless, members of Kilusang Mayo Uno

(KMU) and the National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU) marched from
various parts of Metro Manila towards the EDSA
shrine in Mandaluyong. Several groups of
protesters at various sites were violently dispersed
by anti-riot police. Arrested without any warrant
were Petitioner Randolf S. David, a University of the
Philippines professor and newspaper columnist; and
Ronald Llamas, president of party-list Akbayan.

Early in the morning on February 25, 2006, on

the basis of PP 1017 and GO 5, operatives of the
PNP Criminal Investigation and Detection Group
(CIDG) raided the Daily Tribune offices in Manila
and confiscated news stories, documents, pictures,
and mock-ups of the Saturday issue. Police officers
were stationed inside and outside the offices of the
newspaper, as well as the premises of another pro-
opposition paper, Malaya; and its sister publication,
Abante.

The Issues

On March 7, 2006, the Court conducted Oral

Argument on the following issues raised in the
Petitions:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions

moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R.
Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual

bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
 c. As Applied Challenge

The Courts Ruling

Mootness. In a Decision written by Justice

Angelina Sandoval-Gutierrez, the Court, by a vote of
11-3-1, held that President Arroyos issuance of PP
[8]

1021 did not render the Petitions moot and

academic. During the eight (8) days that PP 1017
was operative, police officers committed illegal acts
in implementing it. Hence, there was a need to
determine whether PP 1017 and GO 5 were
constitutional and valid. The Court stressed that
an unconstitutional act is not a law, it confers
no rights, it imposes no duties, it affords no
protection; it is in legal contemplation,
inoperative. [9]

Courts will decide cases, which may otherwise

be moot and academic, if (1) there is a grave
violation of the Constitution; (2) the situation is of
exceptional character, and the paramount public
interest is involved; (3) the constitutional issue
raised requires the formulation of controlling
principles to guide the bench, the bar, and the
public; and (4) the case is capable of repetition yet
evading review.

All the foregoing exceptions were present in

the case and justified the Courts assumption of
jurisdiction over the Petitions. In addition, the Court
took into consideration my Separate Opinion in
Sanlakas v. Executive Secretary [10]
that an otherwise
moot case may still be decided provided the party
raising it in a proper case has been and/or continues
to be prejudiced or damaged as a direct result of its
issuance.

Legal Standing. Applying extant principles, [11]

the Court ruled that the locus standi of Petitioners

David, Llamas, Cacho-Olivares and the Tribune
Publishing Co. Inc. was beyond any doubt. They had
all alleged direct injury resulting from illegal
arrests and unlawful searches committed by police
operatives pursuant to PP 1017.
 The Court also upheld the legal standing of the
other petitioners on the ground that the subject of
the Petitions was of transcendental importance to
the nation. Indeed, the validity of PP 1017 and GO 5
was a judicial question of paramount importance to
the Filipino people.

Incidentally, the Court regarded as improper the

impleading of President Arroyo as a respondent.
Settled is the doctrine that the President, during her
tenure of office, may not be sued in any civil or
criminal case.

The Courts Review

of the Factual Bases

In Integrated Bar of the Philippines v. Zamora,

[12]
the Court considered the Presidents calling-out
power as a discretionary power solely vested in the
Chief Executives wisdom. Nonetheless, it stressed
that 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.

As to how the Court may inquire into the

Presidents exercise of power, the standard laid
down in Lansang v. Garcia [13]
was not correctness, but
arbitrariness. The Court further ruled in Integrated
Bar of the Philippines that the burden was upon the
petitioner to show that the Presidents decision is
totally bereft of factual basis, not upon the Court to
undertake an independent investigation beyond the
pleadings.

In the present case, petitioners failed to show

that President Arroyos exercise of the calling-out
power through PP 1017 was factually baseless. The
solicitor generals Consolidated Comment and
Memorandum made a detailed narration of the
events leading to the issuance of the proclamation. [14]

Petitioners presented no contrary allegations; thus,

the Court was convinced that the President was
justified in issuing PP 1017.
Constitutionality
of PP 1017

As a backdrop to the Courts disposition of the

issue, the erudite ponente, Justice Gutierrez, wrote a
brief exposition of the various political theories [15]

relating to the power of the President in times of

emergency. She concluded from the various
approaches of political theorists that the ultimate
aim was to solve one real problem: allotting
increasing areas of discretionary power to the
Chief Executive, while ensuring that those
powers would be exercised with a sense of
political responsibility and under effective
limitations and checks.

Facial Challenge to PP 1017

Overbreadth. On petitioners facial

challenge of PP 1017, the Court held that a review
of the issuance through the use of the overbreadth
doctrine was uncalled for. First, that doctrine was an
analytical tool developed for testing on their faces
statutes in free speech cases. A plain reading of
PP 1017 showed that it was not primarily directed to
speech or even speech-related conduct. It was
actually a call upon the AFP to prevent or suppress
all forms of lawless violence.

Second, the facial invalidation of laws was

considered a manifestly strong medicine to be
used sparingly and only as a last resort, and
was generally disfavored. [16]
A challenge using
the overbreadth doctrine would require the Court to
examine PP 1017 to pinpoint flaws or defects, not on
the basis of its actual effect upon petitioners, but on
the assumption or prediction that it might cause
others who are not before the Court to refrain
from exercising free speech or expression.

Third, in a facial challenge on the ground of

overbreadth, a petitioner is required to establish
that there can be no instance when the assailed law
might be valid. Petitioners did not even attempt to
show whether that situation existed.
 Void for Vagueness. The Court held that a
facial review on the ground of vagueness was
likewise unwarranted. The void for vagueness
doctrine holds that a law is facially invalid if men
of common intelligence must necessarily guess at its
meaning and differ as to its application. [17]
The
petitioner must show that the statute is vague in all
its possible applications. Again, petitioners did not
attempt to show that PP 1017 was vague in all its
applications, and that persons of common
intelligence could understand its meaning and
application.

Operative Portion of PP 1017

In establishing the constitutional basis of PP

1017, the ponencia divided the operative portion of
PP 1017 into these three important provisions:

First provision:

[B]y virtue of the power vested upon me by Section 18, Artilce VII
x x x [I] do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well any act of insurrection or rebellion
 Second provision:

and to enforce obedience to all the laws and to all decrees,

orders and regulations promulgated by me personally or upon my
direction;

Third provision:

as provided in Section 17, Article XII of the Constitution [ I ] do

hereby declare a State of National Emergency.

First Provision:
Calling-Out Power

The first provision pertains to the Presidents

calling-out power. In Sanlakas v. Executive
Secretary, [18]
the Court held that Section 18 [19]
of
Article VII of the Constitution granted the President,
as Commander-in-Chief, a sequence of graduated
powers. From the most to the least benign, these
were the calling-out power, the power to suspend
the privilege of the writ of habeas corpus, and the
power to declare martial law.
 Citing Integrated Bar of the Philippines v.
Zamora, [20]
the Court ruled that the only criterion for
the exercise of the calling-out power was whenever
it becomes necessary x x x to prevent or suppress
lawless violence, invasion or rebellion. Owing to
the vast intelligence network of her office, the
President was in the best position to determine the
actual condition of the country.

Under the calling-out power, the President

may summon the armed forces to aid her in
suppressing lawless violence, invasion and
rebellion through ordinary police action. But every
act beyond the Presidents calling-out power is
considered illegal or ultra vires.

There is a distinction between the authority to

declare a state of rebellion and the authority to
proclaim a state of national emergency. The first
emanates from the Presidents powers as Chief
Executive, as provided under Section 4, [21]
Chapter 2,
Book II of the Administrative Code of 1987.
President Arroyos declaration of a state of
rebellion was merely an act declaring a status or
condition of public moment or interest.

In declaring a state of national emergency, the

President did not rely only on Section 18 of Article
VII of the Constitution; but likewise on Section 17 of
Article XII, a provision on the States extraordinary
power to take over any privately owned public utility
or business affected with public interest. Certainly,
PP 1017 called for the exercise of an awesome
power; thus, it could not be deemed harmless,
without legal significance, or not written, as in the
case of Sanlakas.

Nonetheless, the Court stressed that PP 1017

was not a declaration of martial law. Hence, it could
not be used to justify acts that could be done only
under a valid declaration of martial law, such as (1)
arrests and seizures without judicial warrants, (2)
ban on public assemblies, (3) press censorship and
takeover of news media and agencies, and (4)
issuance of presidential decrees.
Second Provision:
Faithful Execution of Laws

The second provision pertained to the power

of the President to ensure that the laws be faithfully
executed, as provided in Section 17, [22]
Article VII of
the Constitution. The enabling clause, however,
provides that the President may enforce obedience
to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon
my direction.

The Court ruled that President Arroyo could

not issue decrees similar to those of former
President Ferdinand Marcos under martial law. Her
ordinance power was limited under Chapter 2, Book
III of Executive Order No. 292 (the Administrative
Code of 1987). [23]
On the other hand, presidential
decrees were laws that were of the same category
and binding force as statutes, because they were
issued in the exercise of the Presidents legislative
power during the period of martial law under the
1973 Constitution. Under our present Constitution,
legislative power specifically belongs to Congress. [24]

Neither martial law nor a state of rebellion or of

emergency could justify President Arroyos exercise
of legislative power through the issuance of decrees.

With respect to laws, the President could

order the military to enforce only laws pertinent to
its duty to suppress lawless violence, but not civil
laws, customs laws, and the like.

Third Provision:
State of National Emergency

No Takeover of Privately Owned Utilities.

Section 17 [25]
of Article XII of the Constitution
provides for the takeover or direction of the
operation of any privately owned public utility or
business affected with public interest. Section 23 of
Article VI, however, limits the exercise of those acts
thus:

SEC. 23. (1) 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.
 (2) 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. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next

adjournment thereof. (Emphasis supplied.)

Clearly, the exercise of emergency powers,

such as the takeover of any privately owned public
utility or business affected with public interest,
requires a delegation from Congress.

Section 17 of Article XII must be understood

as an aspect of the emergency powers clause
generally reposed upon Congress. Whether the
President may exercise this power is dependent on
whether Congress would delegate it to the Chief
Executive through a law prescribing reasonable
terms.

Emergency, as a generic term, connotes the

existence of conditions suddenly intensifying
existing danger to life or well-being beyond the
degree that is accepted as normal. As contemplated
in our Constitution, these conditions may include
rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of
nationwide proportions or effect. [26]

The Court emphasized that while the

President alone could declare a state of national
emergency without legislation, she had no power to
take over a privately owned public utility or business
affected with public interest. The Chief Executive
could not decide whether exceptional circumstances
existed that would warrant the takeover of private
facilities affected with public interest. Neither could
she determine when those exceptional
circumstances had ceased.

Likewise, without legislation, the President

had no power to determine what types of business
affected with public interest should be taken over.

Void-as-Applied Doctrine
 Finally, on the challenge that PP 1017 was
void as applied, [27]
the Court asked, Does the illegal
implementation of a law render it unconstitutional?

Settled is the rule that courts are not at

liberty to declare statutes invalid, although those
statutes may have been abused and misabused or
may have afforded an opportunity for abuse in the
manner of application. PP 1017 was merely an
invocation of the Presidents calling-out power. Its
general purpose was to command the AFP to
suppress all forms of lawless violence, invasion or
rebellion. But nothing in it allowed the police,
expressly or impliedly, to conduct an illegal arrest or
to search or violate the citizens constitutional
rights.

Constitutionality of GO 5
and Acts of Terrorism

President Arroyo issued GO 5 to carry into

effect the provisions of PP 1017. The order
mandated the AFP and the PNP to carry out
immediately the necessary and appropriate
actions and measures to suppress and prevent
acts of terrorism and lawless violence.

The term lawless violence is unarguably

extant in our statutes and Constitution. The term is
invariably associated with invasion, insurrection or
rebellion. On the other hand, Congress has yet to
enact a law defining and punishing acts of
terrorism. It must be remembered that an act can
only be considered a crime if there is a law defining
it as such and imposing the corresponding penalty.

Since there is no law defining acts of

terrorism, President Arroyo alone, under GO 5, has
the discretion to determine what acts constitute
terrorism. Her judgment on this aspect is absolute,
without restriction. Consequently, upon the
invocation of GO 5, there can be indiscriminate
arrests without warrant, incidents of breaking into
offices and residences, takeover of media
enterprises, and prohibition and dispersal of all
assemblies and gatherings unfriendly to the
administration. These acts go far beyond the
calling-out power of the President. Certainly, they
violate the due process clause of the Constitution.
Thus, the Court declared that the acts of terrorism
portion of GO 5 was unconstitutional.

Unconstitutional Actions

The warrantless arrest of Petitioner David

cannot be justified. During the inquest for the
charges against him (violation of Batas Pambansa
Bilang 880 [28]
and inciting to sedition), all that the
arresting officers could invoke was their
observation that some rallyists were wearing t-
shirts with the words Oust Gloria Now and their
erroneous assumption that he was the leader of the
rally. [29]
Consequently, the inquest prosecutor
ordered Davids immediate release (after his seven-
hour detention) on the ground of insufficiency of
evidence. It was noted that he was not wearing the
subject T-shirt and, even if he were, that fact would
have been an insufficient basis for charging him
with inciting to sedition. Further, it was not even
known whether he was the leader of the rally. [30]

The Court likewise considered the dispersal

and arrest of the members of KMU et al.
unwarranted. Apparently, the dispersal was done
merely on the basis of Malacaangs arbitrary
directive canceling all permits previously issued by
local governments. The wholesale cancellation of all
permits to rally was 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. [31]
Tolerance is the
rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and
present danger may the State deny the citizens
right to exercise it, a fact that respondents utterly
failed to show.

Moreover, under BP 880, the authority to

regulate assemblies and rallies is lodged with local
governments. They have the power to issue permits
and to revoke those permits after due notice and
hearing. In this case, petitioners were not even
notified of, much less heard on, the revocation of
their permits. [32]
The absence of notice was a fatal
defect.

Cacho-Olivares et al. presented another facet of

freedom of speech -- the freedom of the press. The
search without a warrant of The Daily Tribune
offices was illegal, because the act violated Rule 126
of the Rules of Court, which had laid down the steps
in the conduct of a valid search and seizure. [33]

Moreover, the search violated petitioners freedom

of the press. The search and seizure of materials for
publication, the stationing of policemen in the
vicinity of the Tribune offices, and the arrogant
warning of government officials to media, were plain
censorship. [34]

This Court cannot tolerate the blatant

disregard of a constitutional right, even if the act
involves the most defiant of our citizens. Freedom
to comment on public affairs is essential to the
vitality of a representative democracy. It is the duty
of the courts to be watchful of the constitutional
rights of the citizens and of any stealthy
encroachments on those rights. The motto should
always be Obsta principiis. [35]

To capture the essence of the Decision, I am

reproducing verbatim the Courts own summation:

In sum, the lifting of PP 1017 through the issuance of PP

1021 a supervening event would have normally rendered this
case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed if the May 1 rallies become unruly and violent.
Consequently, the transcendental issues raised by the parties
should not be evaded; they must now be resolved to prevent
future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional

insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1070s
extraneous provisions giving the President express or implied
power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on the press, are
ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public
utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an

Order issued by the President acting as Commander-in-Chief
addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard that the
military and the police should take only the necessary and
appropriate actions and measures to suppress and prevent
acts of lawless violence. But the words acts of terrorism
found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from
the said G.O. While terrorism has been denounced generally in
media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFPs authority
in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts

narrated earlier, it is also pristine clear that (1) the warrantless
arrest of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and
NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot

impose any civil, criminal, or administrative sanctions on the
individual police officers concerned. They have not been
individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal Information
have not been presented before this Court.

Elementary due process bars this Court from making any

specific pronouncement of civil, criminal, or administrative liabilities.

It is well to remember that military power is a means to

an end and substantive civil rights are ends in themselves.
How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is
one of the eternal balancing tasks of a democratic state.
During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to
unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the

theorists who studied the various competing political philosophies is
that, it is possible to grant government the authority to cope with
crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the
governed.
 The Separate Opinions

Concurring Opinion
of the Chief Justice

My brief Concurring Opinion was, in the

words of the ponente, Justice Gutierrez, considered
an integral part of this ponencia. I would like to
reproduce it in toto, as follows:

I was hoping until the last moment of our deliberations on

these consolidated cases that the Court would be unanimous in its
Decision. After all, during the last two weeks, it decided with one
voice two equally contentious and nationally significant
controversies involving Executive Order No. 464 [36] and the so-called
Calibrated Preemptive Response policy.[37]

However, the distinguished Mr. Justice Dante O. Tingas

Dissenting Opinion has made that hope an impossibility. I now
write, not only to express my full concurrence in the thorough and
elegantly written ponencia of the esteemed Mme. Justice Angelina
Sandoval-Gutierrez, but more urgently to express a little comment
on Justice Tingas Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to

petitioners, and finds nothing wrong with PP 1017. It labels the PP a
harmless pronouncement -- an utter superfluity -- and denounces the
ponencia as an immodest show of brawn that has imprudently
placed the Court in the business of defanging paper tigers.

Under this line of thinking, it would be perfectly legal for the

President to reissue PP 1017 under its present language and
nuance. I respectfully disagree.

Let us face it. Even Justice Tinga concedes that under PP

1017, the police to some minds may have flirted with power.
With due respect, this is a masterful understatement. PP 1017 may
be a paper tiger, but -- to borrow the colorful words of an erstwhile
Asian leader -- it has nuclear teeth that must indeed be defanged.

Some of those who drafted PP 1017 may be testing the

outer limits of presidential prerogatives and the perseverance of
this Court in safeguarding the peoples constitutionally enshrined
liberty. They are playing with fire, and unless prudently restrained,
they may one day wittingly or unwittingly burn down the country.
History will never forget, much less forgive, this Court if it allows
such misadventure and refuses to strike down abuse at its
inception. Worse, our people will surely condemn the misuse of
legal hocus pocus to justify this trifling with constitutional sanctities.

And even for those who deeply care for the President, it is
timely and wise for this Court to set down the parameters of power
and to make known, politely but firmly, its dogged determination to
perform its constitutional duty at all times and against all odds.
Perhaps this country would never have had to experience the
wrenching pain of dictatorship; and a past President would not have
fallen into the precipice of authoritarianism, if the Supreme Court then
had the moral courage to remind him steadfastly of his mortality and
 the inevitable historical damnation of despots and tyrants. Let not
this Court fall into that same rut.

Concurring Opinion
of J. Santiago

Justice Consuelo Ynares-Santiago shared the

majority view that PP 1017 and GO 5 were both
partly unconstitutional. PP 1017 was no more than
the exercise by the President, as the Commander-in-
Chief of all armed forces of the Philippines, of her
calling out power under Section 18, Article VII of
the Constitution. This power, however, did not
authorize her to direct the armed forces or the
police to enforce laws not related to lawless
violence, invasion or rebellion. Having been vested
by the Constitution in the legislature, that power did
not allow her to promulgate decrees with a force
and effect similar or equal to laws.

Neither was the calling out power a license to

conduct searches and seizures or arrests without
warrant, except in cases provided in the Rules of
Court. It was not a sanction to impose any form of
prior restraint on the freedom of the press or
expression, to curtail the freedom to assemble
peaceably, or to frustrate fundamental constitutional
rights.

Misplaced was the direct reference to Section

17, Article XII of the Constitution, as the
constitutional basis for the declaration of a state of
national emergency. The provision, which is found
under the article on National Economy and
Patrimony, presupposes that national emergency is
economic, not political, in nature.

Moreover, the provision refers to the

temporary takeover by the State of any privately
owned public utility or business affected with public
interest in times of national emergency, subject to
reasonable terms that only Congress may
prescribe. The President cannot arrogate unto
herself, without congressional authorization, the
power to take over or direct the operation of any
privately owned public utility or business affected
with public interest. To do so would constitute an
ultra vires act.

GO 5 is unconstitutional insofar as it
mandates the armed forces and the national police
to prevent and suppress acts of terrorism and
lawless violence in the country. No law has been
enacted by Congress defining terrorism or
determining which acts are punishable as such. The
lack of a clear definition of what constitutes it has
led law enforcement officers to guess at its meaning
and differ as to its application. This uncertainty has
given rise to unrestrained violations of the
fundamental guarantees of freedom of peaceable
assembly and freedom of the press.

Government action to stifle constitutional

liberties cannot be preemptive in meeting any and
all perceived or potential threats to the life of the
nation. To warrant proper action to be taken by the
government, those threats must be actual, or at
least gravely imminent or constitutive of a clear and
present danger of a substantive evil. In a
democracy, constitutional liberties must always be
accorded supreme importance in the conduct of
daily life. At the heart of these liberties lies the
freedom of speech and thought not merely in the
propagation of ideas we love, but, more important,
in the advocacy of ideas we may oftentimes loathe.

Dissent of J. Tinga, Joined by

Justices Corona and Velasco

According to Justice Dante O. Tinga, the Court,

in taking cognizance of the Petitions, had
imprudently placed itself in the business of
defanging paper tigers. It had supposedly made an
immodest show of brawn at the expense of a
fundamental but sophisticated understanding of the
extent and limits of the powers and prerogatives of
the executive as well as of the judicial branch.

His Dissent proceeded essentially from

Sanlakas v. Executive Secretary, [38]
which he had
written for the Court. At issue in that case was
Presidential Proclamation No. 427 (PP 427), which
had declared a state of rebellion in 2003. The
Court concluded that the proclamation, while
constitutional, should be regarded as an utter
superfluity that only gives notice to the nation that
such a state exists and that the armed forces may be
called to prevent or suppress it. Being devoid of
any legal significance, it could not diminish or
violate constitutionally protected rights. Justice
Tinga opined that the same conclusions should be
reached as to the proclamation under consideration.

Involved in PP 1017 is the exercise by the

President of the calling-out power under the
Commander-in-Chief clause of the Constitution. But
to the extent that it also directs the police -- which is
civilian in character -- to suppress all forms of
lawless violence, this provision is also sourced from
the power of the President as Chief Executive under
Section 1, Article VII; and from the power of
executive control under Section 17 of the same
article.
 PP 1017 is unlike PP 1081, which placed the
entire Philippines under martial law. While both PP
Nos. 1081 and 1017 expressly invoke the calling-
out power, their contexts are wildly disparate in the
light of PP 1081s accompanying declaration of
martial law.

Unlike our present Constitution, the 1935

Constitution under which PP 1081 was issued left no
intervening safeguards that tempered or limited the
declaration of martial law. PP 1081 had intended a
wholesale suspension of civil liberties in a manner
that PP 1017 did not even ponder. The earlier
proclamation had authorized the detention of
persons for a plethora of crimes not only directly
related to rebellion or lawless violence, but also
those against national security or public order.
To the ones who suffered or who stood by those
oppressed under that proclamation, it would be a
rank insult even to suggest that the innocuous PP
1017 is of equivalent import.
 There is one seeming similarity, though, in the
language of both proclamations: a command to the
armed forces to enforce obedience to all the laws
and to all decrees, orders and regulations by [the
President]. The Chief Executive currently has no
power to issue decrees, much less has PP 1017
sought to restore that power. The Marcos decrees,
however, still remain valid, unless specifically
stricken down or repealed by subsequent
enactments. Thus, when the President calls upon
the armed forces to enforce the laws, the subsisting
presidential decrees are included in the equation.

The particular passage in PP 1017 separates

by a comma the phrases to all the laws and to all
decrees and orders and regulations promulgated
by me. Inherently, the laws and decrees issued by
President Marcos, as well as the issuances of
President Aquino -- both in the exercise of their
legislative powers -- belong to the same class and
are superior to orders and regulations. The use of
the conjunction and denotes a joinder or union
relating the one to the other. [39]
The word
establishes an association between laws and decrees
distinct from orders and regulations.

The qualifying phrase promulgated by me

refers only to orders and regulations. Otherwise, PP
1017 would be ridiculous, in the sense that the
obedience to be enforced would relate only to laws
promulgated by President Arroyo. Laws and
decrees relate also to other laws enacted by past
sovereigns. Again, the fact that laws and decrees
are grouped separately from orders and
regulations signifies that the President has not
arrogated unto herself the power to issue decrees.

PP 1017 strikes a balance between the

Constitution, the calling-out power, and the
inherent function of the Presidency as defender of
the democratic Constitution. The declaration asserts
the primacy of the democratic order and of civilian
control over the armed forces, yet respects the
peoples constitutional and statutory guarantees.
 Justice Tinga, however, agreed with the
majority that there was a distinction between the
power of the President to declare a state of
emergency; and the exercise of emergency powers
under Section 17 of Article XII. According to him,
this provision referred to the twofold power of the
State to declare a national emergency and to take
over public utilities or businesses impressed with
public interest.

Reference to Section 17 of Article XII, in

relation to the power to declare a state of national
emergency, is ultimately superfluous. A different
situation would have obtained if PP 1017 were
invoked in the actual takeover of a utility or
business. But, on its face and as applied, the
proclamation did not involve the actual takeover of
any utility or enterprise. Thus, any discussion
relating to the power of the State under Section 17,
Article XII, would be obiter dictum.

Nonetheless, as a general rule, the President

may exercise the powers under Section 17, Article
XII, only upon congressional approval. But it
appears constitutionally permissible to recognize
exceptions, like extreme situations. Obtaining
congressional authority would be impossible or
inexpedient, considering the emergency. In extreme
situations, the President may exercise the said
authority, subject to judicial review.

Terrorism has a widely accepted meaning that

encompasses many acts already punishable by our
general penal laws. There are also several United
Nations (UN) and multilateral conventions on
terrorism, [40]
as well as declarations of the UN
General Assembly denouncing and seeking to
combat it. [41]

Even without an operative law specifically

defining the term, the President already has a
sufficient mandate to order the armed forces to
combat acts of terrorism, such as rebellion, coup
detat, murder, homicide, arson, physical injuries,
grave threats, and the like, which are already
punishable in our extant penal laws. As long as
those acts encompass only those that are already
punishable under our laws, the reference is not
constitutionally infirm.

Justice Tinga agreed that PP 1017 did not

expand the grounds for arrests, searches and
seizures without warrant; or for the dispersal of
rallies. The proclamation could not be invoked
before any court to assert the validity of those
unauthorized actions. He, however, disagreed with
the majority in indirectly adjudicating the injuries
inflicted on David et al. as illegal. He believed that
the adjudication had been done with undue haste,
through an improper legal avenue, without the
appropriate trial of facts, and without even
impleading the particular officers who had effected
the arrests, searches and seizures. Deciding non-
justiciable issues and prejudging cases and
controversies without a proper trial on the merits
diminished the potency of the Courts constitutional
power in favor of rhetorical statements that afforded
no quantifiable relief.
 PP 1017 and GO 5 might have warranted
circumspect scrutiny from those interested in and
tasked with preserving civil liberties. Nonetheless,
the plain fact remained that, under legal
contemplation, each of those issuances was valid on
its face and, if applied according to its letter, should
not result in any constitutional or statutory breach.

Thus, Justice Tinga ended with this reminder:

It is for the poet and the politician to pen beautiful
paeans to the peoples rights and liberties, it is for
the Court to provide for viable legal means to
enforce and safeguard these rights and liberties.
When the passions of these times die down, and
sober retrospect accedes, the decision of this Court
in these cases will be looked upon as an extended
advisory opinion.

[1]
Justice Tom C. Clark (Lecturer), Law and Disorder XIX
THE FRANKLIN MEMORIAL LECTURES 29 (1971).
[2]
Chief Justice Artemio V. Panganiban, Liberty and
Prosperity, February 15, 2006.
[3]
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists the historical enemies of the democratic Philippine
State who are now in a tactical alliance and engaged in a concerted and
 systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by
obstructing governance including hindering the growth of the economy and
sabotaging the peoples confidence in government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to the
safety and the integrity of the Philippine State and of the Filipino people;
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the
Philippine Constitution which states that: The President x x x whenever it becomes
necessary, x x x may call out (the) armed forces to prevent or suppress x x x rebellion
x x x, and in my capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
[4]
The resolutory clause of GO 5 reads:
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 the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions and
 measures to suppress and prevent acts of terrorism and lawless
violence.
[5]
Proclamation No. 1021, issued on March 3, 2006.
[6]
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the
Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in
Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to show and
proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not
only by going to the streets in protest, but also by wearing red bands on our left
arms.
On February 17, 2006, the authorities got hold of a document entitled
Oplan Hackle I which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The plot was
to assassinate selected targets including some cabinet members and President
Arroyo herself. x x x. The next day, at the height of the celebration, a bomb was
found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National Peoples Army (NPA), x x x, and copies of subversive
documents. Prior to his arrest, Lt. San Juan announced through DZRH that the
Magdalos D-Day would be on February 24, 2006, the 20 th Anniversary of Edsa
I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were planning to
defect. x x x.
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo
Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems
go for the planned movement against Arroyo.
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to provide
a critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. x x x.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in order to
forge alliances with its members and key officials. NPA spokesman Gregorio
Ka Roger Rosal declared: The Communist Party and revolutionary movement
 and the entire people look forward to the possibility in the coming year of
accomplishing its immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take much longer to end
it.
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced: Anti-
Arroyo groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field. He claimed
that with the forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing its
concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication
towers and cell sites in Bulacan and Bataan was also considered as additional
factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests. (Decision, pp. 8-11).
[7]
Petition in GR No. 171396, p. 5.
[8]
The Courts Decision was written by Justice Angelina Sandoval-Gutierrez and
concurred in by Chief Justice Artemio V. Panganiban; and Justices Leonardo A.
Quisumbing, Consuelo Ynares-Santiago, Antonio T. Carpio, Ma. Alicia Austria-
Martinez, Conchita Carpio Morales, Romeo J. Callejo Sr., Adolfo S. Azcuna,
Minita V. Chico-Nazario, and Cancio C. Garcia. Dissenting were Justices Dante
O. Tinga, Renato C. Corona, and Presbitero J. Velasco Jr. Justice Reynato S.
Puno was on leave.
[9]
I. CRUZ, PHILIPPINE POLITICAL LAW 268 (2002); citing Norton v. Shelby,
118 US 425.
10
GR No. 159085, 421 SCRA 656, February 3, 2004.
[11]
Taxpayers, voters, concerned citizens, and legislators may be accorded
the standing to sue, provided that the following requirements are met:
1. The case must involve constitutional issues.
2. For taxpayers, there must be a claim of illegal disbursement of public
funds, or that the tax measure is unconstitutional.
3. For voters, there must be a showing of obvious interest in the validity
of the election law in question.
4. For concerned citizens, there must be a showing that the issues raised
are of transcendental importance and must be settled early.
5. For legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators. Decision, p. 25.
[12]
GR No. 141284, August 15, 2000, 392 SCRA 618, 619.
[13]
No. L-33964, December 11, 1971, 42 SCRA 448, 481-482.
[14]
See footnote 4.
[15]
From John Locke to Jean-Jacques Rousseau, John Stuart Mill, Nicollo
Machiavelli to contemporary political theorists. Decision, pp. 33-39.
[16]
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
[17]
Ermita-Malate Hotel and Motel Operators Association v. City Mayor of Manila,
No. L-24693, July 31, 1967, 20 SCRA 849.
[18]
GR No. 159085, February 3, 2004, 421 SCRA 656, in which the Court sustained
President Arroyos declaration of a state of rebellion pursuant to her calling-out
power.
[19]
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, 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.
[20]
Supra.
[21]
SEC. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
[22]
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed.
[23]
The President may issue only executive orders, administrative orders,
proclamations, memorandum orders, memorandum circulars, and general or
special orders.
[24]
CONSTITUTION, Art. VI, Sec.1.
[25]
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-
owned public utility or business affected with public interest.
[26]
I. CRUZ, PHILIPPINE POLITICAL LAW 95 (1998). Record of the
Constitutional Commission, Vol. III, pp. 266-267.
[27]
Of the seven (7) petitions, three (3) indicated direct injury -- in GR No.
171396, petitioners David and Llamas alleged that on February 24, 2006, they
were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I; in GR No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
 operatives raided and ransacked without warrant their office; and in GR No.
171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were dispersed when they went to EDSA and later, to Ayala Avenue, also to
celebrate the 20th Anniversary of People Power I. In all these incidents, the
police cited PP 1017 as basis of their action. Decision, p. 59.
[28]
An Act Ensuring the Free Exercise by the People of their Right Peaceably to
Assemble and Petition the Government for Other Purposes.
[29]
Annex A of the Memorandum in GR No. 171396, pp. 271-273.
[30]
Id.
[31]
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553, 561.
[32]
Section 5. Application requirements - All applications for a permit shall
comply with the following guidelines:

x x x x x x x x x

(c) If the mayor is of the view that there is imminent and grave danger of
a substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
[33]
Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce. Section 8 mandates that the search of a house, room, or any
other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality. And
Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or
night.
[34]
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the offices of the Tribune and the seizure of its materials for publication
and other papers were illegal and inadmissible for any purpose. See Decision,
pp. 71-73.
[35]
Boyd v. United States, 116 U.S. 616 (1886).
[36]
Senate v. Ermita, GR No. 169777, April 20, 2006.
[37]
Bayan v. Ermita, GR No. 169838, April 25, 2006.
[38]
GR Nos. 159085, 159103, 159185, 159196, 421 SCRA 656, February 3, 2004.
[39]
Supra.
[40]
To name a few, the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents (1973);
 International Convention for the Suppression of Terrorist Bombings (1997);
International Convention for the Suppression of the Financing of Terrorism
(1999); the International Convention for the Suppression of Acts of Nuclear
Terrorism (2005). See United Nations Treaty Collection Conventions on
Terrorism, http://untreaty.un.org/English/Terrorism.asp (visited, 30 April 2006).
[41]
See e.g. Resolution No. 49/60, adopted by the United Nations General Assembly
on February 17, 1995.

Chapter 4

Twin Beacons for the Judiciary *

Upon assuming the chief justiceship of the

Philippines on December 21, 2005, I immediately
vowed to lead a judiciary characterized by four Ins:
independence, integrity, industry and intelligence;
one that would be morally courageous to stand its
ground against the onslaughts of influence,
interference, indifference and insolence; and that is
impervious to the plague of ships -- kinship,
relationship, friendship and fellowship.

Jurisdiction Over
Judges and Lawyers

The Supreme Court is mandated to watch over

not only the entire judiciary, but also the Philippine
bar -- the vineyard from which our judges take root.
Accordingly, I look for legal professionals who
courageously uphold truth and justice above
everything else, above even their own and their
clients interests and causes. The renaissance of the
legal profession should see the emergence of
competent and ethical lawyers who would be
willing and able to stand for their convictions
against all odds; to carry on in spite of seemingly
insurmountable opposition; and to be beacons for
the weak, the oppressed and the marginalized.

At the same time, I also pledged to continue

and revitalize the Supreme Courts ongoing Action
Program for Judicial Reform (APJR), with special
focus on what I call the four ACID problems that
corrode justice in our country; namely, (1) limited
access to justice by the poor; (2) corruption; (3)
incompetence; and (4) delay in the delivery of
quality judgments.

Internally, to the 26,000 judicial employees

nationwide, I laid down a firm policy of granting
maximum financial and fringe benefits allowed
by law and within my discretion to give as the
overall head of the Judicial Department of our
government. In turn, I asked the employees for
three things encapsulated by the code DHL:
dedication to duty, honesty in every way, and full
loyalty to the judiciary and to the Supreme Court.

Philosophical Foundations
of Liberty and Prosperity

To my mind, what have been outlined so far

are just means to an end. This is because I believe
that we must aspire to attain two loftier end goals:
(1) safeguarding the liberty and (2) nurturing
the prosperity of our people. These twin beacons
of LIBERTY and PROSPERITY constitute my core
judicial philosophy.

The problem with a proposition such as this is

that it lends itself to debate along areas that are
often unintended. For instance, the first time this
philosophy was broached before constitutionalists, I
was deluged with questions on which should take
precedence -- liberty or prosperity -- as though the
two goals were mutually exclusive; hence, as if one
had to choose one or the other. At another time, I
was speaking before businessmen. Predictably, they
were wont to place prosperity on a higher pedestal
than liberty. I have also had initial discussions with
academics, whose skills in dissecting issues and
events have led me to believe, rightly or wrongly,
that the philosophy was too complex and intriguing
to be capable of being laid on solid jurisprudential
grounds.

I have mentioned these differing views from

diverse audiences, if only to acknowledge three
streams of thought that surfaced. There were
discussions on whether or not courts do, can and
should contribute not just to safeguard liberty, but
also to nurture prosperity. For want of better terms,
the first scheme that expresses the relation between
liberty and prosperity I shall call disjunctive; the
second, causal; and the third, mutually
inclusive.
 The disjunctive scheme would have us
embrace the view that for prosperity to be achieved,
the peoples freedom must be curtailed in some
respects. This position is not new at all. Shades of
this standpoint are strikingly extant in social-
contract theories. These theories postulate the
surrender of individual freedoms and liberties to the
State or the collectivity, as a precondition for the
protection and prosperity promised by life in an
ordered society. We in the Philippines, for example,
have been advised -- no doubt by well-meaning
friends -- not to take our liberty too seriously, if we
want to see the economy take off.

On the other hand, the second position sees a

causal relationship between liberty and prosperity;
it sees that fostering liberty is a precondition for the
advent of prosperity. The fundamental idea is that
persons are entitled to have certain wants satisfied
and certain existing needs filled by the government,
without any direct charge other than their payment
of general taxes.
 The third position, with which my philosophy
is aligned, regards liberty and prosperity as
mutually inclusive. It advances the view that
liberty must include the freedoms that prosperity
allows. In the same manner, prosperity must include
liberty, especially the liberty to strive for the good
life according to a persons conception. Liberty
becomes the guarantee that, free from all undue
interference and suppression, we all can conceive of
the good life and act according to those
conceptions! I venture the proposition that a society
marked by such liberty is prosperous.

Liberty and Prosperity,

Not Liberty or Prosperity

By situating this belief in our courts, I

have taken it a notch higher. I believe that the
judiciary can contribute to the advancement of
liberty and prosperity by adopting two standards of
judicial review, as follows:
 1. In litigations involving civil liberties, the
scales should weigh heavily against the government
and in favor of the people -- particularly the poor,
the oppressed, the marginalized, the dispossessed,
and the weak. Laws and actions that restrict
fundamental rights, like freedom of expression and
of the press, come to courts with a heavy
presumption against their validity. This policy is
commonly referred to as heightened or strict
scrutiny.

2. In conflicts affecting prosperity,

development and the economy, deference must be
accorded to the political branches of the
government. This approach is more widely known
as deferential interpretation of laws and executive
actions.

Let me stress that the above standards do not

intend a separatist or disjunctive approach like that
which recognizes liberty or prosperity, or which
requires a choice of one or the other only. Rather,
this position espouses a fundamentally coexistent
scheme, in which liberty and prosperity can live and
blossom side by side, hand in hand.

In short, it is not liberty or prosperity but liberty

and prosperity.

Let me explain further.

Safeguarding Liberty

Safeguarding liberty has long been a traditional

expectation from our courts. Their role is to be the
great equalizers when individual freedoms --
whether civil, political or economic [1]
-- are buffeted
by the awesome powers of the State and
governmental institutions. These epic constitutional
struggles between the government and its citizens
are written in the annals of our nations history,
there to be invoked over and over, as often as
challenges to individual liberty persist to this day.
 Indeed, an individual becomes a majority of one
when courts uphold that persons freedom, which
may have been transgressed by an unconstitutional
law passed by the peoples representatives and
approved by a President elected by a majority of the
voters.

From the Magna Carta of the British to the

Declaration of Independence of the Americans, to
the struggle for nationhood of the Filipinos as
codified in the Malolos Constitution, history rings for
the peoples right to participate in the political
processes, including the freedom to vote and be
voted for; as well as the freedoms of expression, of
assembly and of religion.

A never-ending saga of trials and triumphs for

the judiciary and for our people is the battle for civil
liberties, especially the inviolability of our persons
and our homes from arbitrary searches and seizures,
those guaranteeing our freedoms of abode and
travel, and the so-called Miranda rights of persons
accused of crimes.
Emergence of New Rights

As technology advances and civilization

prospers, new rights emerge. An example of a new
freedom that has arisen from a new technology is
the right to conduct public opinion polls and to
publish their results. I am pleased to inform you
that our Supreme Court has become a world leader
in upholding this new norm as an essential part of
the traditional freedom of speech and expression.

In ABS-CBN Broadcasting Corporation v.

Commission on Elections, [2]
a Decision I had the
honor of writing in the year 2000, the Court
emphatically explained that, when faced with
borderline situations in which the freedom of a
candidate or a party to speak and the freedom of the
electorate to know is invoked against actions
allegedly made to assure clean and free elections,
this Court shall lean in favor of freedom. [3]
This
new ruling recognizing public opinion polls as a
species of the freedom of expression was echoed one
year later in Social Weather Stations v. Comelec, [4]

and was thus ensconced as a judicial doctrine.

Rights of the Accused

Indeed, our Supreme Court is ever vigilant in

safeguarding new rights. Just recently, it condemned
the [v]exatious, oppressive, unjustified and
capricious delays in the arraignment of the
accused. The Court ruled that his detention for
almost two years without having been arraigned,
despite 14 attempts to do so, violated his
constitutional right to speedy trial and speedy case
disposition. [5]
This Decision, which I penned,
stressed that the Court safeguards liberty and will
therefore always uphold the basic constitutional
rights of the people, especially the weak and the
marginalized. For the transgression of his
constitutional right to speedy trial, the accused was
ordered freed and the criminal indictment against
him dismissed.

Right to Life and to Liberty

 Thus, the Philippine Supreme Court has
invariably looked, with heightened scrutiny, at cases
evincing restrictions of fundamental rights. As
mentioned earlier, any law restricting these rights
comes to the courts with a heavy presumption
against its constitutional validity. [6]

Very recently, our Supreme Court promulgated

three landmark decisions involving (1) the right of
Congress to summon executive officials for
investigations in aid of legislation, in conjunction
with the peoples right to information on matters of
public concern; [7]
(2) the right of the people to
peaceful assembly for redress of grievances; [8]
and
(2) the rights of the people under a state of national
emergency. [9]
In all these cases, the Supreme Court
upheld the primacy of civil liberties over
governmental actions.

The struggle for civil liberties by other countries

like the United States, France, Spain and the United
Kingdom are, of course, just as long and difficult.
The freedoms that they have won with so much
sacrifice and suffering have become the bedrock of
their democratic system and economic progress.
Indeed, they have become so inextricably linked
with each other that it seems unthinkable to
conceive of liberty without prosperity, or prosperity
without liberty.

Nurturing Prosperity

While safeguarding liberty is a fairly common

task for the judiciary, nurturing prosperity is
something even seasoned jurists and lawyers may
not all readily understand and agree with. Some
jurisdictions may even disagree with the position
that the judiciary should exert conscious thought
and effort to nurture progress. Nonetheless, I
maintain that whatever the measure of a countrys
economic progress, courts contribute to the
achievement or nurturance of prosperity.
 Recent events impel me to advocate a necessary
-- nay, indispensable -- nexus between political
liberty and economic prosperity. Some of these
developments are as follows:

Constitutional Mandate
to Distribute Income and Wealth

First. Our 1987 Constitution [10]

commands the
State to promote a just and dynamic social order
that will ensure the prosperity and independence of
the nation and free the people from poverty x x x.

Equally significant is Article XII, which is

devoted in its entirety to National Economy and
Patrimony, the goals of which are set forth without
equivocation: a more equitable distribution of
opportunities, income and wealth; a sustained
increase in the amount of goods and services
produced by the nation for the benefit of the people;
and an expanding productivity as the key to raising
the quality of life for all, especially the
underprivileged. [11]
We can truly say that in our
country, Franklin Delano Roosevelts famous
freedom from want [12]
has been constitutionalized.
What we need is a responsive government to
implement it and a prudent judiciary to enforce it.

That these provisions are not self-executory

does not in any way diminish their legal
significance. They nevertheless direct the
legislature and provide the courts with a juridical
context within which to interpret other
constitutional provisions and laws.

It is also clear that the Constitution does not

contemplate palliatives as the solution to our
economic woes. Donations and dole-outs, while
welcome, cannot constitute the promise of
prosperity that the fundamental law holds out. What
the spirit and the letter of the Constitution demand
is the institutionalization of social justice. Thus, the
Constitution expressly ordains as follows:

The Congress shall give highest priority to the enactment of

measures that protect and enhance the right of all the people to
human dignity, reduce social, economic and political inequalities,
 and remove cultural inequities by equitably diffusing wealth and
political power for the common good.

To this end, the State shall regulate the acquisition,

ownership, use and disposition of property and its increments. [13]

But the Constitution does not end by merely

directing that priority be given to social justice. It
further decrees that the promotion of social justice
shall include the commitment to create economic
opportunities based on freedom of initiative and self-
reliance. [14]
In so doing, it subscribes to the
classical thought that social justice is a matter of
distributive justice; that is, all social groups
participate equitably in the resources, the patrimony
and the progress of the nation. Hence, the
systematic and systemic exclusion of any social
group from the blessings of prosperity constitutes
social injustice.

It is well to note that from the Universal

Declaration of Human Rights, two solemn
agreements emerged: (1) the Covenant on Civil and
Political Rights; and (2) the Covenant on Economic,
Social and Cultural Rights. Commentators on
international law are wont to distinguish the two in
terms of the executory character of civil and
political rights as against the ideal or developmental
character of economic and social rights.

In the Philippines, the same distinction has been

applied by some authorities to the rights
enumerated in Article III of the Constitution in
relation to the economic and social rights found
elsewhere in the Charter. Largely self-executory,
civil and political liberties -- particularly those
enshrined in Article III of the Constitution -- can
normally be applied by the courts without difficulty.
As a rule, however, the courts have applied and
given effect to rights pertaining to social justice and
economic prosperity only within the context of
appropriate or enabling legislation or of policy
determinations made by the executive department
as directed by the Constitution.

By no means am I suggesting that economic

rights are inferior to civil and political rights. My
point is that civil and political rights not only
presuppose economic means and well-being, but
also include political and economic freedom in equal
measure. The distinction thus provides the judiciary
with policy guidance. It is one basis for my dual
approach in respect of liberty and prosperity.

Moreover, availability and access to

information, which have traditionally been regarded
as matters of liberty, have by now acquired
economic value as commodities of power. Thus, it
has been theorized that (1) the governments
withholding of information, knowledge and data
constitutes an infringement of a basic liberty; and
that (2) prosperity is a matter of processing,
acquiring, storing and using such information,
knowledge and data.

As mentioned earlier, the right to conduct

public opinion polls and to publish their results has
also been debated fairly recently. On this issue, our
Supreme Court upheld this relatively new right as
an essential part of the traditional freedom of
speech and expression.
Lasting Solutions
to Economic Deprivation

Second. Some of the most learned minds in the

world today have called attention to the abysmal gap
between the haves and the have-nots. Thus, they
propose ingenious solutions to economic deprivation
and want. In his new book, The End of Poverty, [15]

Jeffrey D. Sachs holds that freedom and equality are

meaningless to people who wallow in grinding
poverty, debilitating disease and inexplicable
hunger.

He argues that the United States spent $450

billion in 2005 to sustain its military superiority, but
would never buy peace if it continues to spend only
around one thirtieth of that [sum], just $15 billion, to
address the plight of the worlds poorest of the poor,
whose societies are destabilized by extreme poverty
and thereby become havens of unrest, violence, and
even global terrorism. [16]
 With the same fervor, Time magazines
Persons of the Year for 2005 -- the worlds richest
multi-billionaire couple, Bill and Melinda Gates; and
rock star Bono -- have come down from their
fabulous nests of luxurious living to save 700,000
lives through vaccinations and public health care.

The Gateses, having built the worlds biggest

charity with a $29 billion endowment [an amount
equal to what the World Health Organization
disburses], spent the year [2005] giving more money
away faster than anyone ever has, including nearly
half a billion dollars for the Grand Challenges, in
which they asked the very best brains in the world
how they would solve a huge problem, like inventing
a vaccine that needs no needles and no
refrigeration, if they had the money to do it. [17]
It
seems to me that Bill Gates now devotes more of his
time and genius to prudently spending his fortune
than to feverishly earning it. [18]

In turn, Bono, reports Time, charmed and

bullied and morally blackmailed the leaders of the
worlds richest countries into forgiving $40 billion in
debt owed by the poorest. Now these countries can
spend the money on health and schools rather than
interest payments, and have no more excuse for not
doing so. [19]

The Gateses and Bonos redefinition of

generosity is not about pity. It is more about
passion. Pity sees the suffering and wants to ease
the pain; passion sees injustice and wants to settle
the score. Pity implores the powerful to pay
attention; passion warns about what will happen if
they dont. The risk of pity is that it kills with
kindness; the promise of passion is that it builds on
the hope that the poor are fully capable of helping
themselves if given the chance. [20]

The Gateses passion for philanthropy in

alleviating the worlds poverty and diseases drew a
mind-boggling $30 billion worth of stocks in blue-
chip Berkshire Hathaway, given by investment guru
Warren Buffett. [21]
Alleviation of Poverty
Requires a Stable Judiciary

Third. The worlds most important

developmental institutions, like the United Nations
Development Program (UNDP), the World Bank
(WB) and the Asian Development Bank (ADB) have
learned over the years that their goals of alleviating
poverty and propelling economic growth cannot be
attained, unless there is a well-functioning judicial
system [that] enables the State to regulate the
economy and empower private individuals to
contribute to economic development by confidently
engaging in business, investments and other
transactions.

This stance explains why the UNDP is

passionate about broadening the poors access to
justice; why the WB wants an effective and efficient
judicial system that protects citizens from the
abuses of government and safeguards the rights of
the poor; [22]
and why the ADB desires to enhance
the effectiveness and the accountability of the
judiciary. [23]

Social Responsibility
of Philippine Business

Fourth. In our country, the imperatives of

social responsibility in the systematic dispersal of
private wealth to alleviate poverty has been
pioneered by the Philippine Business for Social
Progress (PBSP). Member-companies of PBSP
contribute a fixed percentage of their net incomes to
a common fund to pursue humanitarian causes.

Along the same line, the big business

conglomerates -- like Ayala, Metrobank, YGC, and
those of Taipans Henry Sy, Lucio Tan, John
Gokongwei, [24]
and Emilio Yap -- have formed their
own philanthropic foundations to pursue
educational, livelihood, and other social causes
designed to minimize poverty and to help the people
help themselves. As I speak, I know that more
conglomerates are likewise realizing the need to
spend their wealth prudently. [25]
I daresay to you,
ladies and gentlemen of big business, that the only
justification for accumulating enormous wealth
is the zeal and the ability to distribute it wisely
to the needy and the hungry.

These four developments among the many

others convince me that political liberty, the clarion
call of the past, must continuously be safeguarded in
the present and in the future, if we must be true to
Wendell Phillips reminder that eternal vigilance is
the price of liberty. [26]
However, I am equally
persuaded that the prosperity of our people requires
as much nurturing in the present century as that
accorded to liberty in the past. To be relevant,
courts must be constantly attuned to the needs of
the present and the vagaries of the future, so that
they can respond timely and prudently to the
peoples ever-expanding well-being.

Ladies and gentlemen, how we cope with the

stark realities of poverty -- the antithesis of
prosperity -- has become the litmus test for the
mandate of the courts to weigh the scales of justice
in favor of the downtrodden and the neglected. [27]

Amid the paradigm shift in the role of the courts in

economic development are welcome moves to
redefine poverty as a deprivation of essential assets
and opportunities to which every human is
entitled. [28]
Under this new definition, the right to
prosperity is elevated to the level of a universal
human right. Hence, it definitely needs attention,
cultivation and protection by the courts and by
everyone.

Courts and Progress

Perhaps, it is because of my background in both

law and business that I have developed a philosophy
of combining law and economics as the enduring
bases of an egalitarian society. Indeed, the
fortunate combination of these two disciplines has
instilled my advocacy of justice and jobs, freedom
and food, integrity and investments, ethics and
economics, democracy and development; in short,
liberty and prosperity.
 Of course, recognizing that courts play a role in
pushing progress forward is not enough. Equally
essential is knowing how that role should be played,
if courts are truly to contribute to economic growth.

I believe that as a rule courts should not pass

upon the merits or wisdom of economic policies, for
these matters have been left by the people to the
President and Congress to evaluate and decide. [29]

An example of this deference to economic policies is

heralded in Taada v. Angara, [30]
a Decision I had the
honor to write for the Court. In upholding the
Senates consent to the Philippines ratification of
the World Trade Organization (WTO) Agreement, the
High Court ruled as follows:

It is not impossible to surmise that this Court, or at least some of

its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution
No. 97 [which embodied the Upper Houses consent to the ratification of
the WTO Treaty]. But that is not a legal reason to attribute grave abuse
of discretion to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is
 outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the
nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in
electing their policy makers. Let the people, through their duly elected
officials, make their free choice.

A recent reiteration of this laissez-faire judicial

policy on economic issues is La Bugal-Blaan Tribal
Association v. Ramos, [31]
which I also wrote. In
affirming the constitutionality of the Mining Law
allowing 100-percent foreign investments in
large-scale mining, the Court held thus:

x x x. The Constitution should be read in broad, life-giving

strokes. It should not be used to strangulate economic growth or to serve
narrow, parochial interest. Rather, it should be construed to grant the
President and Congress sufficient discretion and reasonable leeway to
enable them to attract foreign investments and expertise, as well as to
secure for our people and our posterity the blessings of prosperity and
peace.

La Bugals doctrinal pronouncements were very

recently reiterated this year in Didipio Earth Savers
Multi-Purpose Association v. Gozun. [32]

Issue of Justiciability
 Am I saying that economic and business
questions are not to be reviewed by our courts for
being political or non-justiciable? No, it is not my
intention in the least to advocate abandonment of
this salutary doctrine of justiciability. I submit,
though, that only on the clearest of grounds must
judicial review result in a reversal of legislative or
executive action in commercial and business
matters. Any doubt must be resolved in favor of the
political branches of government.

Although separation of powers is definitely also

at work, it is more than separation of powers that
supports my proposition. Insofar as rights
guaranteeing civil and political liberties are phrased
as executory, they are susceptible of direct
application by the courts. But basically, economic,
industrial and business policies are considerations of
what is beneficial, advantageous, feasible and
practicable. As such, they are policy considerations
best left to politicians and economic managers. [33]
 One of the esteemed former members of the
Court espouses a view similar to mine. Amidst the
dilemma posed by the constitutional obligation of
judicial review and the counter-majoritarian
objections to it, Justice Vicente V. Mendoza proposes
a double standard of review: stringency in laws
affecting civil liberty, on the one hand; and, on the
other, benignity and deference in regard to laws on
economic and social ventures or experiments. [34]

This double standard of review runs along the same

lines as my own judicial philosophy of Liberty and
Prosperity.

Grave Abuse of Discretion

This judicial no-interference rule on economic

policy does not mean, though, that the courts will
abdicate their duty of striking down (1) gravely
abusive legislative or executive acts that clearly
violate the Constitution, the laws, or settled
jurisprudence; [35]
or (2) those that have been issued
with arbitrariness, whim, caprice, bias or personal
hostility. [36]
 Consistent with this exception to the no-
interference rule, the Supreme Court has nullified
contracts entered into by the government, like those
for the reclamation of portions of Manila Bay, [37]
the
construction and operation of the new Manila
International Airport Terminal, [38]
and the automation
of the 2004 national elections. [39]

The courts have been chided for what

businessmen and economists claim to be unwanted
incursions upon the spheres of trade and
investments. What these commentaries suggest is
that economists and entrepreneurs insist on playing
by their very own rules without interference from
anyone, let alone the courts. But even the ways of
the market and of merchants must adhere to
societys rules on fairness, equity and reasonability.
In short, it is the function of law and of the courts to
put these fundamental convictions in legal form and
to make them direct economics. Not liberty or
prosperity, then, but liberty and prosperity.
 The fact is that the courts are the guardians not
merely of civil and political liberties. They are
protectors also of economic rights, including
freedom from unwarranted impositions, from
anomalous and disadvantageous arrangements, and
from unconscionable contracts. These critics also
disregard the fact that, under our Constitution, the
courts have the duty not merely to settle actual
controversies involving legally demandable and
enforceable rights, but also to strike down contracts
that violate our Constitution and laws or have
otherwise been entered into with grave abuse of
discretion.

While on this subject, may I point out that the

foregoing voided contracts were entered into by the
government in contravention of law. I should
emphasize that the judiciary takes a more liberal
view of private agreements, in which the subject
matter is a strictly commercial transaction. In these
agreements, neither the law nor the courts will
extricate a party from an unwise or undesirable
contract he or she entered into with all the required
formalities and with full awareness of its
consequences. [40]

Search for a Model

for Economic Development

On January 16, 2006, I had an interesting

round-table discussion with Professor William
Easterly, who had recently published a much-
acclaimed book entitled Elusive Quest for Growth. [41]

Among the discussants were Finance Secretary

Margarito Teves, former Prime Minister Cesar
Virata, former National Economic and Development
Authority Director-General Felipe Medalla, Senator
(and Senate Ways and Means Committee Chair)
Ralph Recto, Banker Vitaliano Naagas, Economist
Romeo Bernardo, business leader Jaime Augusto
Zobel de Ayala II, Professor Alex Magno, IMF
Resident Representative Reza Baqir, and World Bank
Country Director Joaquim von Amsberg (the dinner
host).
 Professor Easterly opined that most
economically advanced countries -- like the United
States [42]
and many states comprising the European
Union -- had adopted liberal democracy, in which
human rights were zealously protected. [43]
He added
that under these benign regimes, entrepreneurs felt
comfortable and thus invested their money for the
long term.

When confronted with other models of

economic prosperity like China, [44]
Singapore, [45]
and
Chile, Professor Easterly conceded that there was no
single formula for rapid economic growth. He
theorized, though, that for the long term, liberty
must still stand side by side with prosperity as the
durable formula for lasting economic success.

To my mind, the peculiar facts and distinct

circumstances of the Philippines make the formula
Liberty and Prosperity still the most viable
economic and judicial philosophy here. After all,
during the years of Martial Law, authoritarian rule
was proven to be incapable of producing meaningful
long-term economic progress. Even more important,
our people value their freedoms very dearly and will
not exchange them for food. Indeed, the Filipinos
may endure occasional hunger, but they will never
tolerate injustice and indignity for long.

Closing

I have attempted, as best as I could, to (1)

demonstrate that just as there is an emerging
catharsis over the role of private wealth in
alleviating poverty, disease and hunger in the world,
there is also an ongoing renewal of the role that
courts play in instilling both economic and political
justice; and (2) present the twin beacons of my
judicial philosophy of Liberty and Prosperity in the
context of our history, as well as of existing and
emerging realities.

By no means is my philosophy of Liberty and

Prosperity meant to be an absolute prescription that
other jurisdictions must also espouse. They each
have their own history, experience, economics,
culture and politics, which should dictate whether
this philosophy would be viable in their respective
jurisdictions.

Nonetheless, I present liberty and prosperity

as a possible framework within which judiciaries
may define their missions and visions for the
future.

*
This article is a composite of six speeches I delivered to
explain my judicial philosophy of Liberty and Prosperity to
various audiences, including business leaders, jurists,
lawyers, and members of the academe and private sector
groups. Comprising this compendium are my speeches
entitled (1) Liberty and Prosperity, which was delivered
before the Joint Meeting of the Financial Executives
Institute of the Philippines (FINEX), the Makati Business
Club (MBC), the Management Association of the
Philippines (MAP), the Philippine Chamber of Commerce
and Industry (PCCI), the Federation of Filipino-Chinese
Chambers of Commerce, and the Japanese and European
Chambers of Commerce on February 15, 2006, at the
Grand Ballroom of the Hotel Intercontinental in Makati
City; (2) Liberty and Prosperity: A Program for the
Philippine Judiciary, delivered during the round-table
discussion on April 12, 2006, at the Plantation Bay Resort
Hotel, Marigondon, Mactan Island, Cebu; (3) An Enduring
Egalitarian Society, delivered before the World Presidents
Organization on March 18, 2006, at the Red Restaurant,
Shangri-la Makati; (4) The Academic Foundations of
 Liberty and Prosperity, which I delivered during the
National Academic Forum on Liberty and Prosperity
organized by the Philippine Judicial Academy on July 20,
2006, at the Abbot Lopez Hall, San Beda College,
Mendiola, Manila; (5) Economic Prosperity: A New Norm
for the Philippine Judiciary; and (6) Twin Beacons for the
Judiciary. The last two speeches were delivered from May
10-28, 2006, before business leaders, the Filipino
communities, lawyers, and members of the academe in
New York and Washington DC in the United States of
America, Spain, France and London, during my knowledge-
sharing/lecture circuit on my judicial philosophy of Liberty
and Prosperity.
[1]
Fr. Joaquin Bernas elucidated on the current Bill of Rights of our Constitution, as
follows:
It is customary to distinguish three concepts: civil liberties,
political freedoms and economic freedoms. x x x.
To civil liberties belong freedom from arbitrary
confinement, inviolability of the domicile, freedom from arbitrary
searches and seizures, privacy of correspondence, freedom of
movement, free exercise of religion and free choices involving
family relations.
Political freedoms include the freedoms involving
participation in the political process -- freedom of assembly and
association, the right to vote, the right of equal access to office,
the freedom to participate in the formation of public opinion, and
also non-establishment of religion or what is popularly called
separation of church and state.
Economic freedom covers everything that comes under
the heading of economic self-determination, free pursuit of
economic activity; in general, free choice of profession, free
competition and free disposal of property. J. BERNAS, THE
INTENT OF THE 1986 CONSTITUTION WRITERS 164
(1995).
[2]
380 Phil. 780, January 28, 2000, per Panganiban, J.
[3]
Id., pp. 795-796. Emphasis supplied.
[4]
357 SCRA 496, 501, May 5, 2001, per Mendoza, J. In this case, the Court
stressed that because of the preferred status of the constitutional rights of speech,
expression, and the press, a law prohibiting the publication of pre-election surveys
is vitiated by a weighty presumption of invalidity.
[5]
Lumanlaw v. Peralta, GR No. 164963, February 13,
2006.
[6]
Ayer Productions v. Capulong, 160 SCRA 861, April 29,
1988.
[7]
Senate v. Ermita, GR No. 169777, April 20, 2006. More
accurately, the Court invalidated the major provisions of
 Executive Order No. 464. In its simplest terms, the
Decision held that Congress had the right to compel the
appearance of executive officials in congressional
investigations, because the power of legislative inquiry was
as broad as the power to legislate. Hence, held to be
unconstitutional were the provisions of EO 464, which
allowed the executive branch to evade congressional
requests for information without properly invoking
executive privilege in recognized instances. Nonetheless,
the Court directed Congress to indicate, in its invitation to
executive officials, the subject matter of the inquiry and of
related questions, so that the President or the Executive
Secretary could properly invoke executive privilege, if
warranted.
To the extent that investigations in aid of legislation
were to be generally conducted in public, the Court held
that any executive issuance tending to unduly limit
disclosures of information in such investigations
necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a
matter of public concern. The citizens are thereby denied
access to information which they can use in formulating
their own opinions on the matter before Congress
--opinions which they can communicate to their
representatives and other government officials through the
various legal means allowed by their freedom of
expression. x x x.

[8]
Bayan v. Ermita, GR No. 169838, April 25, 2006. This
ponencia, penned by Justice Adolfo S. Azcuna, stated thus:
x x x[T]his Court reiterates its basic policy of upholding the
fundamental rights of our people, especially freedom of expresin
and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold
the liberty of our people and to nurture their prosperity. He said
that in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak.
Indeed, laws and actiions that restrict fundamental rights come to
the courts with a heavy presumption against their validity. These
laws and actions are subjected to heightened scrutiny.
[9]
David v. Arroyo, GR No. 171396, May 3, 2006. Writing
for the majority in this case, Justice Angelina Sandoval-
Gutierrez ruled as follows:
 All powers need some restraint; practical adjustments
rather than rigid formula are necessary. Superior strength the
use of force cannot make wrongs into rights. In this regard, the
courts should be vigilant in safeguarding the constitutional rights
of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of
liberty is thus most relevant. He said: In cases involving involving
liberty, the scales of justice should weigh heavily against the
government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Laws and actions
that restrict fundamental rights come to the courts with a heavy
presumption against their constitutional validity.

[10]
The following provisions of the Constitution, among
others, mandate the State to promote economic prosperity:

Article II (Declaration of Principles and State Policies)

Sec. 9. The State shall promote a just and dynamic social order
that will ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.
Sec. 17. The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and
development.

Article XII (National Economy and Patrimony)

Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase in
the amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising the
quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets.
However, the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to develop.
Private enterprises, including corporations, cooperatives, and similar
collective organizations, shall be encouraged to broaden the base of their
ownership.
Sec. 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.
Sec. 13. The State shall pursue a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on
the basis of equality and reciprocity.
[11]
Art. XII, Sec. 1.
[12]
During his annual message to the US Congress on
January 6, 1941, Roosevelt outlined, as his vision for the
world, four freedoms: freedom of speech and expression,
freedom of every person to worship God, freedom from
want, and freedom from fear.
[13]
Art. XIII, Sec. 1.
[14]
Art. XIII, Sec. 2
[15]
Penguin Press, New York, 2005. See also J. STIGLITZ
AND A. CHARLTON, FAIR TRADE FOR ALL (2005). This
book exhorts developed countries to modify World Trade
Organization (WTO) rules to enable developing countries to
cope with globalization as a means to reduce poverty.
[16]
Id. at 1.
[17]
Time, December 26, 2005/January 2, 2006, p. 26.
[18]
Indeed, at 50, Bill Gates is relinquishing his day-to-day
business responsibilities as Microsoft chair as of July 2008,
in order to focus more on philanthropic work. Time, June
26, 2006, p. 14.
[19]
Id.
[20]
Id. at 27.
[21]
This sum will be given gradually beginning in July this
year and continuing every year, for as long as one of the
couple -- Bill, 50; or Melinda, 42 -- is active in the Bill and
Melinda Gates Foundation. But each installment must be
spent in the year it is given. For 2006, Buffett has donated
602,500 Berkshire B shares valued at about $1.5 billion,
which must be spent by the Gates Foundation within the
year. Time, July 10, 2006, p. 13.
[22]
LEGAL AND JUDICIAL SECTOR MANUAL (2002), a World Bank
publication.
[23]
Law and Policy Reform, ADB Report, January 2005, pp. 26-28.
[24]
To celebrate his 80th birthday on August 11, 2006, John
Gokongwei donated all his personal holdings, amounting to
P10.25 billion, in JG Summit to the Gokongwei Brothers
Foundation, which in turn donated P50 million to the
University of San Carlos in Cebu City. (Philippine Daily
Inquirer, August 13, 2006, p. A1)
[25]
Some noteworthy causes include media outreaches like
Bantay Bata of ABS-CBN and the Kapuso Foundation of
GMA 7; pro-poor programs of religious groups like Catholic
Charities and Pondong Pinoy; and civil society groups like
 Gawad Kalinga, led by Antonio Meloto who recently
merited a Ramon Magsaysay Award.
[26]
This statement was made by Phillips (1811-1884) --
abolitionist, orator and columnist for The Liberator -- in a
speech before the Massachusetts Antislavery Society in
1852 <http:www.freedomkeys.com/vigil.htm> (visited
February 13, 2006).
[27]
The pro-poor bias of the Constitution is evident in these
provisions, among others:
Article II (Declaration of Principles and State Polices)
Sec. 9. The State shall promote a just and dynamic social order
that will ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.

Article XII (National Economy and Patrimony)

Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase in
the amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising the
quality of life for all, especially the underprivileged.
xxx xxx xxx
Sec. 5. The State, subject to the provisions of this Constitution
and national development policies and programs, shall protect the rights
of indigenous cultural communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
xxx xxx xxx

Article XIII (Social Justice and Human Rights)

Sec. 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth
and political power for the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its increments.
Sec. 4. The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular farm workers, who
are landless, to own directly or collectively the lands they till or, in the
case of other farm workers, to receive a just share of the fruits thereof.
x x x.
Sec. 9. The State shall, by law, and for the common
good, undertake, in cooperation with the private sector, a continuing
program of urban land reform and housing which will make available at
affordable cost decent housing and basic services to underprivileged and
homeless citizens in urban centers and resettlement areas. It shall also
promote adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of
small property owners.
 Sec. 10. Urban or rural poor dwellers shall not be evicted nor
their dwellings demolished, except in accordance with law and in a just
and humane manner.
No resettlement of urban and rural dwellers shall be
undertaken without adequate consultation with them and the
communities where they are to be relocated. x x x.
Sec. 12. The State shall establish and maintain an
effective food and drug regulatory system and undertake appropriate
health manpower development and research, responsive to the country's
health needs and problems. x x x.
Sec. 14. The State shall protect working women by
providing safe and healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities that will enhance
their welfare and enable them to realize their full potential in the service
of the nation.
[28]
Office of the ADB General Counsel, Report on the ADBs
Law and Policy Reform Activities in Support of Poverty
Reduction, ADB Report, February 2004, 18 pp.
[29]
In my book LEVELING THE PLAYING FIELD (2004), I
underscored the balancing role of the judiciary in our
government. I said that [t]he Supreme Court safeguards
not only food, but also freedom; not only jobs, but also
justice; not only indulgences, but also integrity; not only
development, but also democracy; not only prosperity, but
also peace.
[30]
338 Phil. 546, 604-605, May 2, 1997, per Panganiban, J.
[31]
445 SCRA 1, December 1, 2004, per Panganiban, J.
[32]
GR No. 157882, March 30, 2006. per Nazario, J. The constitutionality of the
Mining Law was raised anew in this case, insofar as this law allegedly ceded
beneficial ownership of the mineral resources to a foreign contractor. Holding
that this matter had already been settled in La Bugal, the Court emphasized that
the FTAA contractor was not free to do whatever it pleased and get away with it;
on the contrary, it would have to follow the government line if it wanted to stay in
the enterprise. The law and its Implementing Rules and Regulations vest in the
government more than a sufficient degree of control and supervision over the
conduct of mining operations.
[33]
John Rawls, undoubtedly one of the most influential
theorists of justice in the latter part of the 20 th century,
proposes the reform of institutions. His theory is briefly
presented here to fuel further discussions by the
participants.

In his original volume [A THEORY OF JUSTICE

(1971)], Rawls believes that when rational persons decide
on the principles by which society is to be organized, they
will, of their own, choose the principles of justice that will
regulate all subsequent criticism and reform of institutions.
 He elucidated those principles in his re-statement of his
theory [JUSTICE AS FAIRNESS: A RESTATEMENT (2000)],
as follows:

(a) Each person has the same indefeasible claim to a fully

adequate scheme of equal basic liberties, a scheme that is compatible
with that of liberties for all.

(b) Social and economic inequalities are to satisfy two

conditions: first, they are to be attached to offices and positions open to
all under conditions of fair equality of opportunity; and second, they are
to be of the greatest benefit to the least-advantaged members of society.

As to what equal basic liberties that each person

must enjoy to the maximum, and that is compatible with a
similar maximum for all others, Rawls writes:

A second way of drawing up a list of basic rights and liberties is

analytical: we consider what liberties provide the political and social
conditions essential for the adequate development and full exercise of
the two moral powers of free and equal persons. Following this, we say:
first, that the equal political liberties and freedom of thought enable
citizens to develop and to exercise these powers in judging the justice of
the basic structure of society and its social policies; and second, that
liberty of conscience and freedom of association enable citizens to
develop and exercise their moral powers in forming and revising and in
rationally pursuing (individually, or more often, in association with
others) their conception of the good. (Emphasis supplied)

[34]
The Nature and Function of Judicial Review, IBP Journal
31:1, 1st and 2nd Quarters (2005).
[35]
Republic v. COCOFED, 423 Phil. 735, December 14,
2001.
[36]
Benito v. Comelec, 349 SCRA 705, January 19, 2001;
Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November
18, 1998; and Philippine Airlines, Inc. v. Confesor, 231
SCRA 41, March 10, 1994.
[37]
Chavez v. Public Estates Authority, GR No. 133250, 384
SCRA 152, July 9, 2002; 451 Phil. 1, May 6, 2003; and 415
SCRA 403, November 11, 2003; per Carpio, J.
[38]
Agan v. PIATCO, GR No. 155001, May 5, 2003 and
January 21, 2004, per Puno, J.
[39]
Information Technology Foundation of the Philippines v.
Commission on Elections, GR No. 159139, 419 SCRA 141,
January 13, 2004, per Panganiban, J.
[40]
Opulencia v. Court of Appeals, 355 Phil. 124, 136, July
30, 1998, per Panganiban, J. (citing Esguerra v. Court of
Appeals, 335 Phil. 58, 69, February 3, 1997).
[41]
MIT Press, Cambridge and London. Romain Wacziarg of
Stanford University describes Easterlys work as a superb
book [that] draws on what we have learned from almost
two decades of cross-country growth comparisons about
supposedly miracle growth policies [that] have proven
disastrous or ineffective, but wisely avoids proposing a
new panacea x x x. Wacziarg, Review of Easterlys THE
ELUSIVE QUEST FOR GROWTH, XL JOURNAL OF
ECONOMIC LITERATURE 907-918, September 2002.
[42]
The United States, with a per capita income of $41,800 is considered the worlds
richest economy. It did not achieve this status overnight,
however. The key to its economic success is consistency.
Compared with Chinas staggering 9.6% growth per year
from 1990 to 2003, US growth rates have been relatively
modest at 3.3%. But, in a span of two centuries (1820-
1998), the US has maintained a steady average growth rate
of 1.7% per year of per capita GNP. Its sustained growth is
attributed to a stable, transparent and independent
government with credible and consistent economic
policies. (Figures taken from CIA World Factbook 2005
<http://www.cia.gov/cia/publications/factbook/rankorder/2004rank.ht
ml> (visited January 10, 2006; and Recent Economic
Performance, WORLD DEVELOPMENT INDICATORS
(2005), an annual publication of the World Bank
<http://devdata.worldbank.org/wdi2005/Section4.htm>
(visited January 31, 2006).
[43]
The discussion was summarized by Prof. Alex Magno, also a participant,
in his column in the Philippine Star on January 19, 2006.
[44]
The rapid growth of China has been unprecedented. Its average annual growth
rate of 9.3% from 1990 to 2003 has been nothing short of phenomenal, and it
shows no signs of slowing down in the near future. With a growth rate of 9.5%
in 2004 and after the government announced robust economic growth of 9.9% in
2005, China has overtaken France and Britain to become fourth on the list of the
worlds biggest economies.
What makes the case of China more inspiring is the fact that in 1981, it
was among the poorest countries with more than 60% of the population living on
less than $1 a day. This poverty level was cut in half by 1990 and again by 2001.
And China was able to achieve all of this under a one-party rule. (Data from
Recent Economic Performance, WORLD DEVELOPMENT INDICATORS
(2005), id.; Channel News Asia, International Business News
<http://www.channelnewsasia.com/stories/afp_world_business/view/190006/1/.h
 tml> (visited January 31, 2006); and CIA World Factbook (2005)
<http://www.cia.gov/cia/publications/factbook/rankorder/2004rank.
html > (visited January 10, 2006).
[45]
Singapore is yet another success story. With average annual growth rates
of 6.7% from 1980 to 1990 and 6.3% from 1990 to 2003, it has grown -- in
a short span of three decades -- from being among the worlds poorest
countries to one having per-capita income levels that match those of highly
industrialized nations. The Singaporean government maintains a significant
amount of control over the economy. Even then, Singapore has become a
haven for international investors. [Figures culled from Recent Economic
Performance, WORLD DEVELOPMENT INDICATORS (2005), an annual
publication of the World Bank < http://devdata.worldbank.org/wdi2005/Section4.htm>
(visited January 31, 2006); and the CIAWORLD FACTBOOK (2005),
<http://www.cia.gov/cia/publications/factbook/rankorder/2004rank.html> (visited January
10, 2006)].

Preface

The year 2006 is my last as a member of the

Philippine judiciary. On December 7, 2006, I shall
turn 70 years old. At midnight of the day before,
December 6, I shall compulsorily retire as Chief
Justice, pursuant to the constitutional provision [1]

that magistrates of all levels shall hold office during

good behavior until they reach the age of seventy
years x x x.

Liberty and Prosperity is also the last book I

will author as a sitting justice of the highest court of
the land. As my faithful readers know, I write one
volume annually as my way of reporting on my
activities as a magistrate. Because I took my oath as
a member of the Supreme Court on October 10,
1995, all my past books were current as of October
10 of their year of publication, and their printing
deadline had to fall on that same date.

The present volume, however, is current only

as of July 31, 2006. I wanted it to be printed by the
first week of October 2006 and circulated in time for
the Global Forum on Liberty and Prosperity, to be
held in Makati City on October 18-20, 2006. Should
it become necessary, I may write a separate update
to make the book current as of October 10, 2006,
which is my normal printing deadline.

Part I. Like many of my previous books, this

volume is divided into two main parts. Part I,
entitled A Judicial Philosophy and Program,
presents the various facets of my one-year stint [2]
as
Chief Justice. My judicial philosophy and program
may be summarized in six separate items, culled
from my pronouncements reported in this book, as
follows:

1. I vow to lead a judiciary characterized by

four Ins: independence, integrity, industry and
intelligence; one that is morally courageous to stand
its ground against the onslaughts of influence,
interference, indifference and insolence; and that is
impervious to the plague of ships -- kinship,
relationship, friendship and fellowship.

Parenthetically, when I first announced this vow

a few days after my oath-taking, several well-
meaning people expressed some doubt about how a
Court dominated by appointees of the current
President [3]
could decide critical cases against her.
Typical of those apprehensions was the remark of
then Senate President Franklin M. Drilon, quoted in
Philippine Star: Chief Justice Panganiban certainly
[4]

has an unblemished record. He has integrity. He

has industry. He has the intellect that certainly
makes him extremely qualified as a Chief Justice.
The nation, however, will be watching the fourth in
that Justice Panganiban mentioned -- that is the
independence of the Panganiban Court.

I hope, however, that by its Decisions on the

three so-called litmus-test cases involving
Executive Order 464, the Calibrated Preemptive
Response (CPR) Policy, and Presidential
Proclamation 1017, [5]
this question has already been
more than sufficiently answered.

In the ultimate, the Court is not interested in

who, but in what, wins. It is keen only to make the
law and the Constitution prevail and truth and
justice victorious.

2. I also pledge to continue and revitalize

the Supreme Courts ongoing Action Program for
Judicial Reform (APJR) initiated by my illustrious
predecessor, Chief Justice Hilario G. Davide Jr., with
special focus on the four ACID [6]
problems that
corrode justice in our country; namely, (a) limited
access to justice by the poor, (b) corruption, (c)
incompetence, and (d) delay in the delivery of
quality judgments. These ACID problems (and what
I have done to solve them) are discussed in Chapter
10.

I am particularly glad to note that our efforts

to eradicate corruption have been appreciated by
the business community. In the 2006 Social Weather
Stations Survey on corruption, the respondents gave
the Supreme Court the second highest rating for
sincerity in fighting corruption, next only to local
church leaders. [7]
The results indicate that among
government institutions, the Supreme Court was
perceived as the most sincere in tackling corruption.

May I add that I considered delay so

important that I created a Committee on Zero
Backlog [8]
to immediately monitor the flow of cases
and to resolve old ones as soon as possible.

3. I also envision a revitalized legal

profession that is responsible, dependable and
morally upright; one that courageously upholds
truth and justice above everything else; and from
whose ranks shall emerge competent and ethical
lawyers. These are lawyers who shall be willing and
able to stand for their convictions against all odds;
to carry on in spite of seemingly insurmountable
opposition; and to be fearless advocates for the
weak, the oppressed and the marginalized. This
topic is elucidated in Chapter 6, A Revitalized
Legal Profession.

4. Internally, to the 26,000 judicial

employees nationwide, I lay down a firm policy of
granting maximum financial and fringe benefits
allowed by law and within my discretion to give. In
turn, I ask the employees for three things
encapsulated by the code DHL: dedication to duty,
honesty in every way, and full loyalty to the
judiciary and to the Supreme Court. How I have
implemented this policy is discussed in Chapter 16
entitled Maximum Benefits for All Judicial
Employees.

5. I look forward to a school par excellence

for judges, one that will be a center for judicial
education not only for the Philippines, but also for
the whole ASEAN region. I am particularly elated
at the Japanese governments no-strings grant of
P300 million given on January 26, 2006, through
Ambassador Ryuichiro Yamazaki, for the
construction of the Philippine Judicial Academy
(PhilJA) Development Center in Tagaytay. Of great
value to judicial education also is the Cooperation
Agreement we concluded with the General Council
for the Judiciary of the Kingdom of Spain on June 30,
2006. For details, please see Chapter 7.

6. All the foregoing five programs should

converge [upon] two loftier end goals: (a)
safeguarding the liberty and (b) nurturing the
prosperity of our people. These twin beacons of
LIBERTY and PROSPERITY constitute my core
judicial philosophy. During the Courts recess on
May 10-28, 2006, I discussed these twin beacons
before various audiences -- judicial, bar, academe,
business, civil society, and even the local Filipino
communities -- in major cities of the world: New
York, Washington, Madrid, Paris and London.
 I was very much elated at the favorable
responses I received. So I invited many Chief
Justices, bar leaders (including the incoming
president of the International Law Association,
Fernando Pombo), law deans, civil society heads,
and business vanguards to come to our country and
attend the Global Forum on Liberty and Prosperity
on October 18-20, 2006.

May I just stress that my philosophy of Liberty

and Prosperity may be new to some, but not to me. I
have espoused it for a long time as a practising
lawyer and have written/spoken on it even during
my early years in the Court. The liberty portion is
evident in my many ponencias, too numerous to
cite. I am especially pleased that during my term as
Chief Justice, my philosophy was expressly cited
with approval in two important Decisions: on the
Calibrated Preemptive Response policy [9]
and on
Presidential Proclamation 1017. [10]
 On the other hand, the prosperity portion is
gleaned from many Supreme Court Decisions,
particularly from two ponencias I wrote: one on the
validity of the Philippine ratification of the World
Trade Organization Treaty [11]
and another on the
constitutionality of the Philippine Mining Law of
1995. [12]
Significantly, the doctrines in La Bugal were
unanimously reiterated very recently in Didipio
Earth-Savers Multi-Purpose Association v. Gozun. [13]

The final chapter (Chapter 18) of Part 1 is a

kind of Epilogue. Here, I foresee the ultimate role of
the Supreme Court not only as the last bulwark of
democracy and guardian of the rule of law, but as
the anchor of the ship of state during political
turbulence and social storms in the country.

Part II. In all my past books, I discussed only

the significant Decisions of the Court in which I had
written an Opinion, whether majority or dissenting
or concurring. For the present volume, however, I
have included all significant Decisions promulgated
by the Court during my first seven months in office
as Chief Justice (a period that ended on the printing
deadline of this book, July 31, 2006, my seventh
month in office). I have done so because as Chief
Justice I feel that, whether I wrote them or not, all
those significant Decisions issued from the
Panganiban Court.

The cases summarized in Part II include not

only those I concurred in, but also one that I
dissented from (Estrada v. Escritor, summarized in
Chapter 25). May I just add that this Decision was
the continuation of an earlier one of the same title,
promulgated on August 4, 2003, before I became
Chief Justice. On these two connected cases, I voted
consistently in the negative.

Functions of the Chief Justice. In an

earlier volume, Leadership by Example, [14]
I wrote
that [n]o university on earth teaches a course on
how to be a Supreme Court justice. True, our
Philippine Judicial Academy and similar judicial
schools abroad have programs for continuing
judicial education, as well as some courses to
orient/educate lower court judges. But there is none
that I know of specifically for Supreme Court
justices. And now, I daresay there is no curriculum,
either, on how to be a Philippine Chief Justice. But I
hope that this book will give my readers an idea of
the nature and extent of the responsibilities and
duties of the head of our Judicial Department.

To sum up, the Chief Justice (also called

President of the Supreme Court in many
European, Asian, African and Latin American
countries) has the following roles:

1. As primus inter pares. Among the 15

members of our Supreme Court, the Chief Justice
(CJ) is the first among equals who, in presiding over
the sessions, is able to control the flow of
proceedings, shape the Courts agenda, summarize
discussions, and influence the direction and pace of
the Courts work. (On my part, I have tried to steer
the direction and pace towards the safeguarding of
liberty and the nurturing of prosperity.)
Nonetheless, the CJ has only one vote. Thus, Chief
Justices have sometimes found themselves voting
with the minority in important litigations.

2. As leader of the entire judiciary. The

2,000 judges and 26,000 employees of the judiciary
hold the Chief Justice up for inspiration and
example. The CJ is looked up to as the leader who
inspires, motivates and leads other officials to work
unceasingly, to rise above their puny limitations, to
excel beyond themselves and to achieve collectively
their loftiest dreams and highest aspirations. While
the judge in him impels him to follow tradition, to
uphold precedents and stabilize judicial thought, the
leader in him requires him to innovate, to re-
engineer, to invent new and better ways of moving
forward. [15]
As a testament to the CJs headship of
the third branch of government, new ambassadors
routinely make courtesy calls on the Chief Justice
upon the latters assumption of office. [16]

3. As passionate reformer and action

person. Because the judiciary, like the other
branches of government, must cope with the fast-
changing judicial, social, economic and
technological environment brought about by new
sciences and economic paradigms, the Chief Justice
has to institute reforms. [17]

This mission requires not only knowledge of law

and related fields of endeavor, but also interaction
with other offices, agencies, persons -- both public
and private and even with foreign governments
and international aid institutions. Indeed, to keep
up with the Information Age, the judiciary must
automate and computerize. It needs also to relate
better with its various publics. Without
surrendering or compromising judicial
independence and integrity, the CJ must have
rapport with other officials, local and foreign, as
well as with the judiciarys various publics.

4. As uncrowned leader of the bar.

Because supervision over admission to the practice
of law and the integrated bar itself is vested in the
Supreme Court by the Constitution, all lawyers look
up to the Chief Justice for guidance in their
practice. This is the reason why all bar associations
want to listen to the CJ, especially a new one, for
direction and inspiration.

5. As a person of the academe, being an

ex-officio chair of the Philippine Judicial
Academy. Thus, the Chief Justice must be a scholar,
guru and teacher, who is expected to make the
education of judges a necessary component of the
judiciary. For this reason and because of lack of
government resources, the CJ is constrained to turn
to outside assistance, again without compromising
judicial independence and integrity.

6. As chairperson of the Judicial and Bar

Council (JBC). The Chief Justice is expected to
find new and better ways of searching for, screening
and selecting applicants for judgeships. This job is
critical. The need for quality judgments begin with
quality judges. This imperative impels the CJ to
wade into nonjudicial endeavors, like working for
better compensation, better security for judges
especially those assigned to remote areas, and
better working conditions and facilities. Only by
securing better pay, better security and better
facilities will it be possible for the JBC to entice the
best and the brightest attorneys to join the judiciary.

In the past many years, the vacancy rate was

30 to 40 percent in the trial courts. When I took
over, the vacancy rate was about 30 percent. This
figure translates to vacancies in about 600 courts
nationwide. I have made it my self-imposed duty to
get the JBC to select nominees for about 300 vacant
courts, which will mean a drastic reduction of the
vacancy rate to 15 percent. This is a monumental
task. At an average of 10 applicants per position,
the JBC will have to process, interview, screen and
select from 3,000 applicants (300 x 10). Should the
CJ fail to lead the JBC in its functions of searching,
screening and selecting new judges, the judicial
reform program cannot result in any major
breakthrough. The problem of delay in the trial
courts cannot be solved.
 In anticipation of these appointments, I have
set aside a sufficient amount from the Judiciary
Development Fund to procure facilities and
equipment for these 300 new judgeships.

7. As administrator, manager and

financial wizard, all rolled into one. The
Constitution vests in the Supreme Court
administrative supervision over all courts and the
personnel thereof, as well as the appointment of its
officials and employees. In actual practice, however,
it is really the Chief Justice who discharges these
administrative functions. In fact, several laws -- like
the Administrative Code and the General
Appropriations Act -- recognize the CJ as the
administrative head of the Judicial Department.
More pointedly, the Judiciary Development Fund
Law (PD 1949) and the Special Allowance for the
Judiciary (SAJ) Law (RA 9227) specifically place
exclusive sole power upon the CJ to disburse the
JDF and the excess SAJ funds.
 When I assumed the chief justiceship of our
country, I was aghast to learn that the CJ had
literally been given menial administrative functions,
like the approval of leaves of absence and the
acceptance of the resignations of all 26,000
employees nationwide. Thus, pursuant to
elementary management principles, I had to
decentralize these functions to give time to more
important endeavors.

8. As role model and exemplar of public

service. The Chief Justice is looked up to by our
people, especially by the young, as a model of a life
worth emulating. Because of our inquisitive media
and open society, about every public official
(sometimes including the CJ) is subjected to minute
scrutiny and oftentimes vilified unreasonably. Our
people therefore need exemplars and role models.
In their search for heroes, they often look up to the
CJ as their choice of an ideal public servant.

A good example is my esteemed predecessor,

Chief Justice Hilario G. Davide Jr. He was named,
among others, Person of the Year by the Philippine
Daily Inquirer and hailed as a Ramon Magsaysay
Awardee, as well as a Rule of Law Awardee by the
American Bar Association. All the successors of
Chief Justice Davide, not just I, will carry this heavy
responsibility to measure up to that level of public
esteem.

All the foregoing roles take a lot of time from

the basic work of decision-making. Indeed, these
multifarious functions no longer allow the Chief
Justice to savor the old-time luxury of total judicial
seclusion that CJs had enjoyed under our previous
Constitutions. Indeed, these functions no longer
allow the Chief Justice to shun public appearances
and speaking engagements, which require
reasonable visibility in many functions and
receptions.

Judicial work load. In recognition of these

leadership, administrative, managerial, financial and
other functions, only one third of the new cases
given to associate justices are raffled to the Chief
Justice. Thus, for my part, I am expected to produce
only one third of my usual ponencias. I have tried,
however, to write one half of my usual 50 (which
means that I wrote about 25) ponencias for the first
half of the year. I expect to write another 25 before
I retire. Most of these were old ones that had been
re-raffled to me as a result of our effort to resolve
such cases. [18]
My own docket had no backlog; that
is, none of my cases had reached the 24-month
constitutional limit.

By the time I retire, I shall have written a total

of about 1,200 full blown, signed ponencias during
my over eleven-year service in the High Court. Of
course, this count does not include the many
thousand extended and minute Resolutions I wrote,
Resolutions that gave short shrift to patently
unmeritorious Petitions. May I say that I feel
personally fulfilled with this production total. If I
may say so myself, I have written a number of trail-
blazing, even if sometimes controversial, Decisions.
I shall make no attempt to comment on each of them
and instead leave that task to posterity.
 Seating protocol. When I was promoted
Chief Justice, a vacancy in the associate justiceships
was created. Justice Presbitero J. Velasco Jr., our
former court administrator, was named to take my
seat. As a result, the seating protocol around the
Courts horseshoe-shaped conference table is now
as follows:

Supreme Court of the Philippines

En Banc

Seating Protocol
as of July 31, 2006

(The retirement dates are in parenthesis.)

 One of the first things I did upon assuming
office was to reorganize the composition of the three
Divisions to conform to the seniority tradition in
arranging perks and procedures inside the Supreme
Court. Thus, as Chief Justice, I chair the Banc and
the First Division. As the most senior member,
Justice Reynato S. Puno heads the Second Division;
the next most senior, Justice Leonardo A.
Quisumbing, chairs the Third Division. Then, the
justices are distributed to the First, the Second or
the Third Division, according to their seniority
(dates of appointment to the Court), as follows:

FIRST DIVISION

SECOND DIVISION

THIRD DIVISION
 High tech. This book is also available in
digital form. A CD version, which is placed inside a
special pocket attached to the inside front cover, is
fully searchable. As a publication of the Supreme
Court (SC), it bears the same search engine that is
used for the SC e-library.

Appreciation. May I acknowledge the

Foreword generously written by my lifetime guru,
former Senate President Jovito R. Salonga, who at
86 is still as mentally prodigious as when he was
46. It is amazing how he has kept himself mentally
alert and physically fit, notwithstanding the many
bits of shrapnel still lodged in his frail body as a
result of that grenade explosion on August 21, 1971,
at Plaza Miranda, Manila.
 Even if I know I can never equal or even
approximate his achievements, I look up to him as
my role model. He has a habit of excelling in
whatever he does: Bachelor of Laws at the
University of the Philippines, Master of Laws at
Harvard, Doctor of Science in Jurisprudence at Yale;
No. 1 in the bar examinations of 1944 (tied with Jose
W. Diokno); No. 1 in three senatorial elections, in
1965, 1971 and 1987. Indeed, he is the best
President this country never had. He wrote the
Preface of my first book, Love God, Serve Man. I
thought it fitting that he should also write the
Foreword of my last book as a sitting jurist.

I also express my deep gratitude to my

esteemed colleagues in the Court, who have helped
enrich my own perceptions through by their own
writings (Decisions and Opinions) and verbal
argumentations. I have always looked forward to
our collegial deliberations, which are constant
sources of delight and enlightenment. Our debates
have been intense, sometimes even passionate, but
our personal relations and friendships have always
remained cordial.

May I also thank several SC officials [19]

and my
legal staff [20]
for their research and help in producing
this book.

July 31, 2006.

ARTEMIO V.
PANGANIBAN

[1]
Sec. 11, Art. VIII.

[2]
My term is exactly 11 months and 16 days (December
21, 2005, to December 6, 2006), fourteen days short of
365. Please note again, though, that this book reports my
activities only as of July 31, 2006.

[3]
Apart from me, the appointees of President Gloria
Macapagal-Arroyo are Justices Antonio T. Carpio, Ma.
Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio
Morales, Romeo J. Callejo Sr., Adolfo S. Azcuna, Dante O.
Tinga, Minita V. Chico-Nazario, Cancio C. Garcia and
Presbitero J. Velasco Jr.

[4]
December 22, 2005.

[5]
These three cases are summarized in Chapters 19, 20,
and 21 of this book.
[6]
I originally code-named these CIDA, but upon the
suggestion of the Philippine Daily Inquirer editorial of
December 26, 2005, I changed the abbreviation to the
more descriptive ACID.
[7]
SWS media release dated July 6, 2006 (downloaded from
the SWS website on August 9, 2006).
[8]
This committee is composed of Justice Reynato S. Puno
(chairperson); and the following members: Justice Antonio
T. Carpio, Justice Minita V.Chico-Nazario, Justice Cancio C.
Garcia, Hon. Christopher O. Lock (Court Administrator),
Hon. Ma. Luisa D. Villarama (Clerk of Court), Atty. Edna
Dio (chief attorney), Atty. Teresita Dimaisip (chief, Judicial
Records Office), Petrita Arguelles (OIC, Management
Information Systems Office).
[9]
In Bayan v. Ermita, GR No. 169838, April 25, 2006, a
unanimous Supreme Court -- speaking through Justice
Adolfo S. Azcuna -- said:

In sum, this Court reiterates its

basic policy of upholding the fundamental
rights of our people, especially freedom of
expression and freedom of assembly. In
several policy addresses, Chief Justice
Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people
and to nurture their prosperity. He said
that in cases involving liberty, the scales of
justice should weigh heavily against the
government and in favor of the poor, the
oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws
and actions that restrict fundamental
rights come to the courts with a heavy
presumption against their validity. These
laws and actions are subjected to
heightened scrutiny.

[10]
In David v. Arroyo, GR No. 171396, May 3, 2006, the
Court -- voting 11-4 -- said through Justice Angelina
Sandoval-Gutierrez:
 All powers need some restraint;
practical adjustments rather than rigid
formula are necessary. Superior strength
the use of force cannot make wrong into
right. In this regard, the courts should be
vigilant in safeguarding the constitutional
rights of the citizens, specifically their
liberty.

Chief Justice Artemio V.

Panganibans philosophy of liberty is thus
most relevant. He said: In cases involving
liberty, the scales of justice should weigh
heavily against government and in favor of
the people, especially the poor, the
oppressed, the marginalized, the
dispossessed and the weak. Laws and
actions that restrict fundamental rights
come to the courts with a heavy
presumption against their constitutional
validity.

[11]
In Taada v. Angara, 338 Phil. 546, May 2, 1997, a
unanimous Court ruled:

It is not impossible to surmise that

this Court, or at least some of its members,
may even agree with petitioners that it is
more advantageous to the national interest
to strike down Senate Resolution No. 97
[which embodied the Upper Houses
consent to the ratification of the WTO
treaty]. But that is not a legal reason to
attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so
would constitute grave abuse in the
exercise of our own judicial power and
duty. Ineludibly, what the Senate did was a
valid exercise of its authority. As to
whether such exercise was wise, beneficial
or viable is outside the realm of judicial
inquiry and review. That is a matter
 between the elected policy makers and the
people. As to whether the nation
should join the worldwide march
toward the liberalization and economic
globalization is a mater that our
people should determine in electing
their policy makers. Let the people,
through their duly-elected officials,
make their free choice.

[12]
In La Bugal Blaan Tribal Assn. V. Ramos, 445 SCRA 1,
December 1, 2004, the Court -- voting 10-4 -- held:
x x x. The Constitution should be
read in broad, life-giving strokes. It
should not be used to strangulate
economic growth or to serve narrow,
parochial interest. Rather, it should be
construed to grant the President and
Congress sufficient discretion and
reasonable leeway to enable them to
attract foreign investments and expertise,
as well as to secure for our people and
our posterity the blessings of prosperity
and peace.

[13]
GR 157882, March 30, 2006, per Nazario, J.
[14]
November 1999, p.3.
[15]
See Chapter 3, Jurist and Leader.
[16]
During the period January to July 2006, the new envoys
of the following countries have paid courtesy calls on the
Chief Justice: United States, United Kingdom, France,
Japan, the Vatican, South Korea, Saudi Arabia, Australia,
and New Zealand. So has the Attorney General of
Australia, Hon. Philip Ruddock, MP.
[17]
Our wide-ranging, internationally acclaimed Action
Program for Judicial Reform (APJR) was initiated in 2000
by Chief Justice Hilario G. Davide Jr.
[18]
In my ponencias, I identify these old, re-raffled cases by
a footnote, usually in the clause Hence, the present
Petition.
[19]
Atty. Ismael G. Khan Jr., chief of the Supreme Court
Public Information Office (PIO), for his usual inputs and
 suggestions; as well as Jose Emmanuel David M. Eva III for
the cover design and Francisco S. Gutierrez for the photos
(both also with the PIO); Milagros S. Ong, Supreme Court
chief librarian, for preparing the Index; and Edmundo M.
Moredo, chief of the Supreme Court Printing Services, and
his industrious staff for printing this book in time for
distribution during the Global Forum on Liberty and
Prosperity on October 18-20, 2006.

[20]
As of July 31, 2006, my legal staff was composed of Atty.
Emma C. Matammu, the Chief Justices staff head; Atty.
Rommel M. Salvador, judicial staff head; and Attys.
Millicent N. Reyes, Sheryl Fortune Supapo-Sandigan,
Jennifer J. Manalili, Joel Emerson J. Gregorio, Ma. Lourdes
C. San Pablo, Cristina Regina N. Bonoan, Anna Nerissa Paz-
Perez, and Anna Liza L. Su. I also thank Ms N. R.
Evangelista, my editor; Vilma M. Tamoria, secretary; Ma.
Roquiza Heraldo-Reyes and Karen V. Mara, executive
assistants.