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REPUBLIC OF THE PHILIPPINES SUPREME COURT

MANILA JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, SPO1 SATTAL H. JADJULI, Petitioners,

- versus - SC G.R. No. ____________

GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIIM KASIM and P/SSUPT BEINVENIDO G. LATAG, in their capacities as officers of the Philippine Marines and Philippine National Police, respectively, Respondents. x - - - - - - - - - - - - - - - - - - - - x

PETITION FOR CERTIORARI AND PROHIBITION With Urgent Application for the Issuance of a Temporary Restraining Order

(TRO) and/or Writ of Preliminary Injunction

COME NOW, the above-named Petitioners, by counsel, respectfully

state:

I. NATURE OF THE PETITION

1. This is an original special civil action for certiorari and prohibition

under Rule 65 of the 1997 Rules of Civil Procedure, with an urgent prayer

for the issuance of a temporary restraining order (“TRO”) and/or writ of

preliminary injunction. This petition prays that this Honorable Court issue:

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a. A judgment declaring null and void, for being ultra-vires,

unconstitutional and contrary to law, Proclamation No. 1, Series of 2009,

dated 31 March 2009, entitled DECLARING A STATE OF EMERGENCY IN

THE PROVINCE OF SULU.

b) A judgment declaring as null and void, for being ultra-vires,

unconstitutional and contrary to law, the Guidelines on the Implementation

of Proclamation No. 01, Series of 2009 Declaring a State of Emergency in

the Province of Sulu.

(c) A judgment declaring as unconstitutional Section 465, 2 (vi) of

Republic No. 7160 and Section 459 of Muslim Mindanao Autonomy Act No.

25, otherwise known as the Local Government Code of the Autonomous

Region in Muslim Mindanao.

d) A judgment commanding the respondents, their subordinates and

all persons acting on the basis of Proclamation No. 1 and its implementing

Guidelines to cease and desist from implementing the same.

(e) A Temporary Restraining Order and/or Writ of Preliminary

Injunction enjoining the respondents and their subordinates from

implementing the said Proclamation and its implementing Guidelines.

Attachments

1.1. A certified true copy of Proclamation No. 1, Series of 2009,

dated 31 March 2009 is attached hereto as Annex “A”, while

photocopies of the same are attached to the other copies of

this Petition.

1.2. A certified true copy of the Guidelines on the

Implementation of Proclamation No.1, Series of 2009 dated

March 31, 2009 is attached as Annex “B”, while the

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photocopies thereof are attached to the other copies of this

Petition.

II

Timeliness of the Petit ion

2.1. It is respectfully submitted that this petition is filed well within

the 60-day reglamentary period prescribed under Rule 65 of the 1997

Rules of Civil Procedure, as the subject Proclamation was issued and

publicly announced over radio and television on 31 March 2009, while its’

implementing Guidelines, although promulgated and approved later on

April 4, 2009, is also dated March 31, 2009.

III JURISDICTION AND BASIS OF THE PETITION

3.1. The Petition is filed as there is no remedy of appeal and neither

is there available to petitioners any other plain, speedy and adequate

remedy, administrative or otherwise, in the ordinary course of law.

3.2. This Petition is timely filed to question the validity of the said

Proclamation No. 1 and its’ implementing Guidelines on constitutional and

statutory grounds. This Petition requires urgent resolution as the issues

involved pertain to fundamental freedoms guaranteed under the

Constitution and the very foundations of our democratic system of

government. They also threaten the primacy of the rule of law.

3.3. The principle of exhaustion of administrative remedies does not

apply to this case since the issues involved are purely legal or

constitutional. The principle of hierarchy of courts likewise does not apply

since it generally applies to cases involving factual questions. The instant

case raises constitutional issues of transcendental importance to the public.

The petitioners respectfully submit that the Honorable Court can resolve to

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exercise primary jurisdiction over the instant case to determine whether or

not there was grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of the government.

(Art. VII, Sec. 1) and, whether the local government unit had acted within

the limits of its delegated authority.

3.4. The Petition seeks the issuance of the writ of certiorari,

prohibition and mandamus, on the basis of the following:

IV

PARTIES

4.1. Petitioner Jamar M. Kulayan is of legal age, Filipino, a resident

and registered voter of Barangay Tampakan, Laminusa Island, Siasi, Sulu.

He is also a taxpayer. He may be served with notices and other processes

of this Honorable Court at Unit 1, 2nd Floor, J. Atilano Bld’g., I. Magno

Street, Zamboanga City.

4.2. Petitioner TEMOGEN S. TULAWIE is of legal age, Filipino and a

resident of No. 366, Scott Road, Jolo, Sulu, where he may be served with

summons and other processes of this Honorable Court. He is the Provincial

Chairman of the Consortium of Bangsamoro Civil Societies, a consortium of

human rights organizations in Sulu. He is a taxpayer.

4.3. Petitioner HJI. MOHAMMAD YUSOP ISMI is a Filipino, of legal

age and the president of Southern Mindanao Islamic Institute located at

Serantes Street, Jolo, Sulu, where he resides and where he may be served

with summons and other processes of this Honorable Court. He is a

taxpayer and a holder of a Permit to Carry Firearms Outside of Residence

validly issued by the Chief PNP.

4.4. Petitioner AHAJAN AWADI is also a Filipino, of legal age and

former Punong Barangay of Barangay Sawaki, Municipality of Indanan,

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Sulu, where he is a resident and where he can be served with summons

and other processes of this Honorable Court. He is also a holder of a Permit

to Carry Firearms Outside of Residence issued by the Chief PNP.

4.5. Petitioner SPO1 SATTAL H. JADJULI is a Filipino, of legal age and

resident of Patikul, Sulu. He can be served with summons and other

processes of this Honorable Court at Patikul Police Station, Taglibi,

Patikul,Sulu.

4.6. Petitioners may also be served with notices and other processes

of this Honorable Court through the undersigned counsel at the address

given on paragraph 1 hereof.

4.7. Respondent ABDUSAKUR M. TAN is a public officer, of legal age

and the Provincial Governor of Sulu. He signed, issued and proclaimed

Proclamation No. 1, Series of 2009, Declaring a State of Emergency in the

Province of Sulu and he caused the preparation and he approved the

Guidelines on the Implementation of Proclamation No. 1, Series of 2009.

He can be served with notices and other processes of this Honorable Court

at the Office of the Provincial Governor, Capitol Site, Bangkal, Patikul, Sulu.

4.8. Respondents GEN. JUANCHO SABAN and COL. EUGENIO

CLEMEN are both public officers and of legal ages. Respondent Saban is

the Chief of Task Force COMET, while respondent Clemen is the Brigade

Commander of the Third Marine Brigade and Deputy Chief of Task Force

COMET. They are impleaded in their official capacity and can be served

with summons and other processes of this Honorable Court at Camp Gen.

Bautista, Kasulutan, Jolo, Sulu.

4.9. Respondent PSUPT JULASIRIM KASIM is also a Filipino, of legal

age and is impleaded in his official capacity as Police Director of the

Philippine National Police in the Province of Sulu and is the officer charged

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with the enforcement of the said Proclamation. He can be served with

summons and other processes at Camp Asturias, PC Compound, Jolo, Sulu.

4.10. Respondent PSSUPT BIENVENIDO G. LATAG is also a Filipino,

of legal age and is impleaded in his official capacity as the Deputy Director

for Operations of Philippine National Police-Autonomous Region in Muslim

Mindanao and the Commander of the PNP Component of Task Force ICRC.

He can be served with summons and other processes at Peacekeepers INN

at PC Compound, Jolo, Sulu or at Camp. Saripada Pendatun, Parang,

Maguindanao. He recommended the approval of the herein assailed

implementing Guidelines of Proclamation No.1, Series of 2009.

V STATEMENT OF FACTS

5.1. Last January 15, 2009, three (3) ICRC workers were kidnapped

in the vicinity of the Provincial Capitol of the Province of Sulu. The

kidnappers were said to have been lead by Raden Abu, a former jail guard

of the Province. Later, news reports linked Raden Abu to Albader Parad,

one of the alleged leaders of the Abu Sayyaf.

5.2. The Philippine Marines later declared that they had already

cordoned off the kidnappers inside a Four (4) Kilometer radius area in the

jungle of Indanan and their mobility effectively restricted.

5.3. On January 21, 2009, the Philippine National Police announced

that it had just created Task Force ICRC that will explore the possibility of

rescuing the three Red Cross workers. A parallel task force dubbed as Local

Crisis Committee was also created and headed by respondent Governor

Tan. This was later renamed as Sulu Crisis Management Committee. The

Task Force ICRC is headed by respondent Tan. The armed forces

component is headed by Gen. Juancho Saban and his deputy, respondent

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Gen. Clemen. The PNP component is headed by the Police Deputy Director

for Operations-ARMM, respondent PSSUPT Latag.

5.4. Thereafter, respondent Provincial Governor organized, created,

and deployed armed men coming from certain municipalities identified to

be politically allied to him as Civilian Emergency Force which he funded

from the public funds of the provincial government.

5.5. Meanwhile, the Abu Sayyaf demanded for the military pull-out of

the Armed Forces from Sulu or they will execute one of the hostages. A

deadline was set on 2:00 in the afternoon of March 31, 2009. The following

day, one of the kidnapped victims, Mary Jane Lacaba was release.

5.6. Just after the deadline, and on March 31, 2009, citing the said

incident of kidnapping, the definition of terrorism under the Human

Securities Act and invoking Section 465 of the Local Government Code, the

respondent Provincial Governor, on his own and without authority from the

Sangguniang Panlalawigan, issued Proclamation No. 1, Series of 2009,

“Declaring a State of Emergency in the Province of Sulu”, which is hereby

quoted in full as follows:

“PROCLAMATION NO. 01, Series 2009 Declaring a State of Emergency in the Province of Sulu

WHEREAS, the Abu Sayyaf bandits led by Commander Albader

Parad have kidnapped three (3) ICRC workers in Sulu last January 15, 2009;

WHEREAS, this is a terroristic act which is a heinous crime that

deserves to be punished to the fullest extent of the law; WHEREAS, under the provisions of the Human Security Act (RA

9372), terrorism is defined as an act whereby any person who commits Kidnapping and Serious Illegal Detention, among others, to sow and create a condition of widespread and extraordinary fear and panic among the populace and coerce the government to give to an unlawful demand;

WHEREAS, this dastardly act as well as other kidnapping cases perpetrated by the group, if not properly addresses, may inspire and

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embolden other lawless elements in the province to commit similar acts of terrorism;

WHEREAS, under Section 465 of the Local Government Code of

1991 (RA 7160), the Chief Executive of the province may carry out such emergency measures as may bee necessary during and in the aftermath of man-made and natural disaster and calamities;

WHEREAS, under the same section, the Provincial Governor may

call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law when public interest so requires and the police forces of the component city or municipality where the disorder or violation is happening are inadequate to cope with the situation or the violators; and

WHEREAS, as an offshoot of the kidnapping, a joint Task Force

was formed wherein the incumbent Governor of Sulu as Chairman of the Provincial Crisis Management Committee, may order the deployment of military and police personnel;

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED

IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure public safety.”

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31ST DAY OF MARCH 2009. Sgd: Abdusakur M. Tan Governor

5.7. Because of the said Proclamation, warrantless arrests were

made, among them are as follows:

5.7.1. On April 1, 2009 at about 3:00 o’clock in the afternoon,

petitioner SPO1 Sattal Jadjuli received a phone call from his immediate

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superior officer, SPO1 Julkiram Badang, telling him to immediately

report to respondent Kasim. When he arrived at the headquarter, he

was told to proceed to the conference room where he was book and

asked about his relationship to Musin, Jaiton and Julamin, who are all

related to him but who are now all dead. After admitting their

relationship, he was immediately detain.

5.7.2. On April 2, 2009, at about 12:00 o’clock noon time, a group of

about Twelve (12) members of the Philippine Marines, under the

command of respondent Saban and Clemen went to Serantes Street,

at Jolo, Sulu. The marines almost arrested Hji. Hadjirul Bambra and

his son, Abdugajir Hadjirul, had the civilians failed to assist them

prompting the marines to fire their weapons into the air. However, the

father and son were later arrested by the Philippine National Police

under the command of respondent Kasim and were ordered detain by

respondents Latag.

5.7.3. On the same day at about 4:00 o’clock in the afternoon,

Julhajan Awadi, former Punong Barangay of Sawaki, Municipality of

Indanan, Sulu, was told by PINSP BAGADI, his cousin, that he was

being invited by respondents Kasim and Tan. Mr. Awadi was at that

time supervising the road construction project of the USAID in his

Barangay. Once in Jolo, he was told to see respondent Latag, who

later directed him to the Police Headquarter, where petitioner Awadi

was book, asked some personal questions and detained. Later, he was

transferred together with the other detainees to the Provincial Jail.

5.7.4. On the same day, PO2 Marcial Ahajan, brother of the Acting

Mayor of Indanan, was also invited by respondent Kasim to their

headquarters. He was later on asked to see respondent Latag, who

instructed him to proceed to the conference room of the PC

Headquarters where he met the others already under detention. He

was book and later on transferred to the Provincial Jail.

5.7.5. Also on April 2, 2009, SPO3 Muhilmi Ismula, who was assigned

at the Intelligence Division of the Sulu Police Provincial Office was told

by respondent Latag to proceed to the Headquarters, where he was

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guided to the Conference Room. There he saw the petitioners and he

was book just like the others; brought to the Provincial Jail.

5.7.6. Also on April 2, 2009, Alano Mohammad, Punong Barangay of

Kannaway, Parang, Sulu, was at his residence in Barangay Kannaway

when two marines and two civilian volunteers came to him. The

following day, he was told that respondent Kasim desired to see him in

Jolo. When he arrived in Jolo, he was asked to see respondent Latag

who then directed him to the Headquarters where he was book and

asked of his relationship to Raden Abu, who happens to be his son-in-

law. He was later on transferred to the Provincial Jail.

5.7.7. Also on April 2, 2009, Public Utility Jeep driver ABDUHADI

SABDANI was onboard his vehicle waiting for his passenger along

Asturias Street, Jolo, Sulu, when he arrested by the marines and

brought to Camp Gen. Bautista. While in the custody of the Marines

inside their camp, he was repeatedly asked to admit he was Isnilun.

5.7.8. All of them were transferred Regional Office of the CIDG in

Zamboanga City. Petitioners Jadjuli and Awadi were transfered to

Zamboanga City Central Police Station together and were release only

on April 6, 2009.

5.8. Prior to their release, the Secretary of Justice in an interview on

national television opined that the declaration of state of emergency by the

governor was unconstitutional since only the President can make that

declaration.

5.9. In just two (2) days after the Proclamation, more than forty (40)

people were reportedly arrested. Checkpoints manned either by the

Philippine National Police, the Philippine Marines, the Civilian Emergency

Forces or a composite thereof, were established and unreasonable

searches and seizures were made. A curfew has already been put in place

in the entire Province of Sulu hindering their movement and livelihood.

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5.10. These prejudiced herein petitioners Julhajan Awadi and Jadjuli,

who were all arrested on the basis of the said declaration of emergency.

The constitutional, civil and political rights of the people of Sulu have been

arbitrarily curtailed and continue to be in peril.

5.11. The money and resources utilized for the mobilization of these

armed men, particularly those belonging to the Civilian Emergency Force,

could be the public funds of the provincial government or that of the

component municipalities, the disbursement of which are hereby questined

by the petitioners, as taxpayers.

5.12. During the visit of petitioner Kulayan to the CIDG office, he was

told that more people are due for arrest. This was separately confirmed by

respondent Tan during the visit of the relative of SPO1 Jadjuli, who tried to

ask for his help.

5.13. On April 4, 2009, the office of the respondent Provincial

Governor distributed to civic organizations copies of the Guidelines for the

Implementation of the Proclamation No.1, Series of 2009 Declaring a State

of Emergency in the Province of Sulu, which aside from declaring the

admissibility of evidence acquired during illegal searches and seizures also

suspends all issued Permit to Carry Firearms Outside of Residence except

those to be issued by the respondent governor by way of an identification

card.

5.14. The herein assailed Proclamation is ultra-vires, unconstitutional

and contrary to law. The same can be said of its implementing Guidelines.

Unless respondent are restrained and both the Proclamation and the

Guidelines declared null and void, petitioners and the people of Sulu will

continue to suffer the curtailment of their Constitutionally guaranteed

liberties.

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5.15. Unless the assailed fiats of respondent Tan are nullified by this

Honorable Court, other governors may duplicate or imitate the respondent

putting the entire republic under the mercy of the local chief executives

and a state of emergency in place without the President having declared it.

5.18. HENCE, THIS PETITION.

VI

GROUNDS FOR GRANTING THE PETITION

PROCLAMATION NO. 1, SERIES OF 2009 AND ITS IMPLEMENTING GUIDELINES ARE NULL AND VOID FOR BEING ULTRA-VIRES AND UNCONSTITUTIONAL AS THEY VIOLATE THE FOLLOWING PROVISIONS OF THE 1987 CONSTITUTION:

SECTION 1, ARTICLE VII OF THE CONSTITUTION, WHICH DECLARES THAT THE PRESIDENT IS THE CHIEF EXECUTIVE SECTION 18, ARTICLE VII OF THE CONSTITUTION, MAKING THE PRESIDENT THE COMMANDER-IN-CHIEF OF THE ARMED FORCES AND AUTHORIZING HIM, WHENEVER NECESSARY, TO CALL UPON THE ARMED FORCES TO SUPPRESS LAWLESS VIOLENCE, REBELLION AND SEDITION SECTION 1, ARTICLE III OF THE CONSTITUTION THAT GUARANTEES “DUE PROCESS” AND “EQUAL PROECTION” SECTION 2, ARTICLE III OF THE CONSTITUTION WHICH GUARANTEES THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES. SECTION 3, ARTICLE III OF THE BILL OF RIGHTS DECLARING AS INADMISSIBLE ANY EVIDENCE ILLEGALLY OBTAINED SECTION 6, ARTICLE III OF THE CONSTITUTION WHICH GUARANTEES THE LIBERTY OF ABODE AND

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OF CHANGING THE SAME, INCLUDING THE FREEDOM OF LOCOMOTION

PROCLAMATION NO. 1, SERIES OF 2009 AND ITS IMPLEMENTING GUIDELINES ARE INVALID AS THEY VIOLATE THE FOLLOWING STATUTORY PROVISIONS, NAMELY:

SECTION 4, CHAPTER 2, BOOK III OF THE REVISED ADMINISTRATIVE CODE EMPOWERING THE PRESIDENT TO ISSUE PROCLAMATIONS REPUBLIC ACT 6975, AUTHORIZING THE CHIEF PNP TO ISSUE FIREARM’S LICENSE AND PERMIT TO CARRY FIREARMS OUTSIDE OF RESIDENCE PD 1866, AS AMENDED BY REPUBLIC ACT NO. 8294, EXEMPTING FROM CRIMINAL LIABILITY FOR ILLEGAL POSSESSION OF FIREARMS THOSE PERSONS WITH PERMIT TO CARRY FIREARMS OUTSIDE OF RESIDENCE SECTION 98 OF REPUBLIC ACT NO. 7160 OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991 OR SECTION 439 OF THE MUSLIM MINDANAO AUTONOMY ACT NO. 25, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF THE ARMM SECTION 465 OF REPUBLIC ACT NO. 7160, OR SECTION 43 OF MUSLIM MINDANAO AUTONOMY ACT NO. 25

SECTION 465 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE, IS UNCONSTITUTIONAL FOR BEING AN UNLAWFUL DELEGATION BY CONGRESS TO THE LOCAL GOVERNMENT UNIT OF A SOLELY EXECUTIVE POWER; AND, IN ISSUING THE ASSAILED PROCLAMATION AND IT’S IMPLEMENTING GUIDELINES, THE RESPONDENT GOVERNOR OF SULU AND THOSE ACTING UNDER THE AUTHORITY OF THE SAID PROCLAMATION AND ITS GUIDELINE, ACTED WITHOUT AUTHORITY AND/OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION TRANSGRESSING CLEAR CONSTITUTIONAL GUARANTEES AND PARAMETERS OF GOVERNMENTAL POWERS.

VIII ISSUES

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THE MAIN ISSUE IN THIS PETITION IS WHETHER OR NOT A PROVINCIAL GOVERNOR CAN PLACE HIS PROVINCE UNDER A STATE OF EMERGENCY.

SECOND ISSUE: CAN A PROVINCIAL

GOVERNOR ISSUE A PROCLAMATION? THIRD ISSUE: CAN THE GOVERNOR CALL-OUT

THE ARMED FORCES INCLUDING THE CIVILIAN EMERGENCY FORCES AND ORDER THEM TO CONDUCT POLICE ACTIONS OR OPERATIONS.

FOURTH ISSUE: WHETHER OR NOT THE

GOVERNOR CAN ORDER THE SETTING-UP OF CHECKPOINTS AND CHOKEPOINTS; IMPOSITION OF A CURFEW; CONDUCT GENERAL SEARCH, SEIZURE AND ARREST.

FIFTH ISSUE: CAN THE PROVINCIAL

GOVERNOR, THE MARINE COMMANDER AND THE DEPUTY DIRECTOR FOR OPERATIONS OF THE PNP-ARMM SUSPEND PERMIT TO CARRY FIREARMS OUTSIDE OF RESIDENCE?

SIXTH ISSUE: CAN THE PROVINCIAL

GOVERNOR THE MARINE COMMANDER AND THE DEPUTY DIRECTOR FOR OPERATIONS OF PNP-ARMM GRANT AUTHORITY TO CARRY PERMIT TO CARRY FIREARMS OUTSIDE OF RESIDENCE IN THE PROVINCE OF SULU

SEVENTH ISSUE: IS PROCLAMATION NO. 1

AND IT’S IMPLEMENTING GUIDELINES VALID DESPITE LACK OF PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION AS REQUIRED BY LAW.

IX.

DISCUSSION

To paraphrase Chief Justice Artemio Panganiban in his concurring

opinion in David vs. Arroyo1

1 G.R. No. 171396, May 3, 2006

: Proclamation No.1 Series of 2009 and its

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implementing Guideline “may be paper tigers, but xxx they have nuclear

teeth that must indeed be defanged.”

Before the discussion of the constitutional issues, it is important to

establish the petitioner’s legal personality to impugn the validity of

Proclamation No. 1 and its implementing Guideline; and, the propriety of

this Petition.

A. PETITIONERS HAVE THE REQUISITE STANDING TO INSTITUTE THE PRESENT ACTION.

Petit ioners have sustained direct injury as a consequence of the herein assailed Proclamation No. 1 and it ’s implementing Guidelines. They have personal and substantial interest in the outcome of the case as taxpayers and residents of the Province of Sulu. They are enforcing a constitutional right and this is a case of “transcendental importance.”

The Rules of Civil Procedure requires that a case is instituted by a

real party in interest, which is defined as “the party who stands to be

benefited or injured by the judgment in the suit or the party entitled to the

avails of the suit.” In a public suit seeking the nullification of an illegal

official action, the plaintiff must “make out a sufficient interest in the

vindication of the public order and the securing of relief as a “citizen” or

“taxpayer”.

Subsequently, however, the more stringent “direct injury test” was

adopted. According to this test, “for a private individual to invoke the

judicial power to determine the validity of an executive or legislative action,

he must show that he has sustained a direct injury as a result of the

action, and it is not sufficient that he has a general interest common to all

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members of the public.” This test was adopted in People vs. Vera2

, where

the Court held that “the person who impugns the validity of a statute must

have a personal and substantial interest in the case such that he has

sustained, or will sustained a direct injury as a result of that action, and it

is not sufficient that he has a general interest common to all members of

the public.”

This case passes the direct injury test. Petit ioners Awadi and

SPO1 Jadjuli sustained direct injury, when they were both arrested

upon the invitation of respondent Kasim and detained upon the orders of

respondent Latag. They were illegally arrested and detained beyond the

allowable period without charges, on the strength of the assailed

Proclamation No.1 and its implementing Guidelines and their immediate

and drastic implementations by the respondents.

Petitioners Kulayan, Tulawie and Ismi have personal interest in

the case such that they w ill sustain direct injury as a result of the

assailed Proclamation No.1 and its’ implementing Guidelines. The CIDG

investigator revealed the existence of a list of names of persons to be

arrested, which statement or facts was confirmed by the respondent

governor in a separate meeting with some relatives of petitioner Jadjuli.

Petitioners or any people of Sulu may be any of the Dick and Harry on such

list or suspected Abu Sayyaf. The organization of the Civilian Emergency

Forces, their deployment and provisions by respondent Tan are hereby

question as it involves the illegal disbursement of public funds, which is of

genuine interest to the petit ioners, who are all taxpayers.

Petitioner Awadi and Ismi are holders of Permit to Carry Firearms

Outside of Residence (PTCFOR) validly issued by the Chief of the Philippine

National Police in accordance with law. This right is being suspended by

2 G. R. No. 45685, November 16, 1937

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the respondents and its mere possession made sufficient for arrest,

seizure, confiscation and prosecution.

Moreover, the instant suit is a matter of transcendental

importance to the people of Sulu and the public. The rule on standing has

been repeatedly relaxed in cases involving matter of transcendental

importance. In the early Emergency Power Cases, this Honorable Court

allowed suits where serious constitutional issues are involved,

notwithstanding the absence of direct interest. The Court held:

“Nevertheless, where a most compelling reason exists,

such as when the matter is of transcendental importance and paramount interest to the nation, the Court must take the liberal approach that recognizes the legal standing of non traditional plaintiffs, such as citizens and taxpayers, to raise constitutional issues that affect them. This Court thus did so in a case that involves the conservation of our forests for ecological needs. Until an exact balance is struck, the Court must accept an eclectic notion that can free itself from the bondage of legal nicety and hold trenchant technicalities subordinate to what may be considered to be of overriding concern.”

The right of the taxpayer and a citizen to initiate suits before this

Court was affirmed in Chavez vs. PEA-Amari3

, where this Court this

Honorable Court categorically stated:

“The petit ioner has standing to bring this taxpayer's suit because the petit ion seeks to compel PEA to comply w ith its constitutional duties. There are two constitutional issues involved here. First is the right of cit izens to information on matters of public concern. x x x Moreover, the petit ion raises matters of transcendental importance to the public. In Chavez v. PCGG, the Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental importance to the public, thus —"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of

3 G. R. No. 133250, July 9, 2002

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'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of 'paramount public interest,' and if they 'immediately affect the social, economic and moral well being of the people.'

Moreover, the mere fact that he is a cit izen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest. xxx xxx xxx”

Paraphrasing this Honorable Court in David vs. Arroyo:”It must

always be borne in mind that the question of locus standi is but corollary to

the bigger question of proper exercise of judicial power. This is the

underlying legal tenet of the “liberality doctrine” on legal standing.4

It

cannot be doubted that the validity of the governor’s declaration on state

of emergency in the entire province of Sulu “is a judicial question which is

of paramount importance to the Filipino people. To paraphrase Justice

Laurel, the whole of Philippine society now waits with bated breath the

ruling of this Court on this critical matter. The petition thus calls for the

application of the “transcendental importance” doctrine, a relaxation of the

standing requirements for the petitioners in this case.

Considering the importance to the public interest of the case at bar,

and in keeping with the Court’s duty under the Constitution to determine

whether or not the other branches of government have kept themselves

within the limits of the Constitution and the laws and that they have not

abused the discretion given to them, the Court must take cognizance of

this case and rule upon the arguments put forward in this petition.

Otherwise, there is no prevention for the other governors similarly minded

as the respondent who might as well declare a state of emergency in their

4 David vs. Arroyo,

19

own province that will eventually result in chaos and into a constitutional

crisis, that of a presidential sole executive prerogative being usurped by a

local chief executive of a local government unit and majority of the

provinces in the country will be under states of emergency without the

President declaring it.

THE PETITION POSES AN ACTUAL CONTROVERSY

Among the requirements for the exercise of judicial review is that

there must be an actual case or controversy, one which involves a conflict

of legal rights, an assertion of opposite legal claims susceptible of judicial

resolution, and that the question before it must be ripe for adjudication,

that is, the governmental act being challenged has had a direct adverse

effect on the individual challenging it.

In Angara vs. Electoral Commission5

, the Court ruled that when the

actions of one branch of the government conflicts with that of another,

there is an actual case that is ripe for judicial review.

When the judiciary mediates to allocate constitutional boundaries, it

does not assert any superiority over the other departments; it does not in

reality nullify or invalidate an act of legislature, but only asserts the solemn

and sacred obligation assigned to it by the Constitution to determine

conflicting claims of authority the rights which that instrument secures and

guarantees to them. This is in truth all that is involved in what is termed

“judicial supremacy” which properly is the power of judicial review under

the Constitution.

The present and actual controversy in this case is constitutional in

nature as it involves the powers of the Executive Department, the Congress

and the Local Government Unit, more particularly the governor of Sulu.

5 G. R. No. L-45081, July 15, 1936

20

The consequent ill effects of the illegal action of the respondent governor

upon the people of Sulu are unimaginable. Thus, unless this Court

immediately exercises its supreme duty of ensuring that the local

government units are acting within their limits of power, the petitioners

and the entire people of Sulu will continue to suffer injury. And the action

herein question maybe repeated by the other provincial governors.

It is true that the power of the courts to declare a law

unconstitutional arises only when the interests of litigants require the use

of that judicial authority for their protection against actual interference, a

hypothetical threat being insufficient. Proclamation No. 1 has already been

implemented resulting in the unlawful arrest of petitioners Awadi and

Jadjuli and several others. Thus, there is no longer a hypothetical threat

against the constitutional rights of the petitioners. An injury had already

been sustained.

The validity of a declaration of emergency by a legislative body of a

local government unit was brought before this Court in Homeowners

Association of the Philippines, Inc. vs. The Municipal Board of the City of

Manila6

. But the Court deemed it not proper to pass on this question and

decided the case on other questions. Had there been a resolution of such

issue, perhaps there would have been no need for this petition for the

respondent may have been already well inform of the maximum limits of

his power. That case has been repeated, this time by a local chief

executive.

Thus, unless this issue is resolve now, it is very likely that the issue

will resurface and history will repeat itself. This brought the instant case

within the purview of the exemption to the rule on mootness: “the case is

capable of repetit ion yet evading review .”

6 G.R. No. L-23979, August 30, 1968

21

PETITIONER MAY SEEK RECOURSE DIRECTLY WITH THIS HONORABLE COURT

It is not denied that the Supreme Court is a court of last resort.

However, cases involving compelling issues and those which are of

paramount interest and importance may be directly filed with this

Honorable Court. Thus, in Kilosbayan vs. Guingona7

, this Honorable Court

brushed aside the hierarchy of courts due to the importance of the issues

therein “to determine whether or not the branches have kept themselves

within the limits of the Constitution and the laws and that they have not

abused the discretion given to them”.

In Chavez vs. PEA-Amari8

, this Honorable Court had occasion to

state: “PEA and AMARI claim petitioner ignored the judicial hierarchy by

seeking relief directly from the Court. The principle of hierarchy of courts

applies generally to cases involving factual questions. As it is not a trier of

facts, the Court cannot entertain cases involving factual issues. The instant

case, however, raises constitutional issues of transcendental importance to

the public. The Court can resolve this case without determining any factual

issue related to the case. Also, the instant case is a petition for mandamus

which falls under the original jurisdiction of the Court under Section 5,

Article VIII of the Constitution. We resolve to exercise primary jurisdiction

over the instant case.”

Moreover, in Santiago vs. Vasquez9

, this Honorable Court ruled that

petitions for certiorari, prohibition, or mandamus, though cognizable by

other courts, may directly be filed with the Supreme Court “if the redress

desired cannot be obtained in the appropriate courts or where exceptional

compelling circumstances justify availment of a remedy within and calling

for the exercise of our primary jurisdiction.”

7 232 SCRA 110 8 Supra 9 217 SCRA 633

22

As earlier alleged, petitioners are raising the constitutionality and

validity of Proclamation No. 1 and it’s implementing Guidelines. That issue

affects public interest, involving as they are the right of the people of Sulu

against unreasonable search and seizure, their liberty of abode and their

right to life, liberty and property. While these affect the people of Sulu

only, there is no guarantee that other similarly opined local chief executives

will not follow. It is for this reason that this Honorable Court must now

entertain this case, in order to teach the others. Paraphrasing this

Honorable Court’s declaration in David vs. Arroyo: “Moreover, the Court

has the duty to formulate guiding and controlling constitutional precepts,

doctrines or rules. It has the symbolic function of educating the bench and

the Bar, and in the present petitions, the military, the police and the local

chief executives of the different local government units across the country,

[supplied] on the extent of the protection given by constitutional

guarantees. And, lastly, respondent’s contested actions are capable of

repetition. Certainly, the petitions are subject to judicial review.”10

Additionally, there is only one presiding judge over the three regional

courts in Sulu and he also presides over the Shariah District Court. The

political climate in Sulu as well as the storm brought about by the herein

questioned actions makes the filing of this petition before that court

impractical and would be a useless exercise, subject to delay.

Having said that, we shall now proceed to discuss the issues at bar:

PROCLAMATION NO. 1, SERIES OF 2009

AND ITS IMPLEMENTING GUIDELINES ARE UNCONSTITUTIONAL AND CONTRARY TO LAW, DUE TO THE FOLLOWING:

1. THEY VIOLATE SECTIONS 1 AND 18 OF ARTICLE VII OF THE CONSTITUTION, VESTING THE PRESIDENT WITH EXECUTIVE POWER AND COMMANDER-IN-CHIEF POWER 10 Supra

23

Section 1, Article VII of the 1987 Constitution provides:

Section 1. The executive power shall be vested in the

President of the Phil ippines.

First paragraph of Section 18 thereof provides:

Section 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 law less 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. [emphasis supplied]

In Sanlakas vs. Executive Secretary11

, the Court held: “[Thus], the

President’s authority to declare a state of rebellion springs in the

main from her powers as chief executive and, at the same time draws

strength from her commander-in-chief powers. Indeed, as the Solicitor

general accurately points out, statutory authority for such declaration may

be found in Section 4, Chapter 2, Book III of the Revised Administrative

Code of 1987, xxx.” It proceeds by saying that “in declaring a state of

rebellion and in calling out the armed forces, the President, was merely

exercising a wedding of her Chief Executive and Commander-in-Chief

Powers. These are purely executive powers, vested on the President by

Sections 1 and 18, Article VII, as opposed to the delegated legislative

powers contemplated by Section 23 (2), Article VI.”

11 G.R. No. 159085, February 3, 2004

24

The declaration of a state of emergency by the respondent governor

exceeded the proclamations of the President that were challenged in

Lacson vs. Perez12

, Sanlakas vs. Executive Secretary and the latest case of

David vs. Arroyo.

On its face, the proclamation of state of emergency in the entire

Province of Sulu by respondent governor is ultra-vires, because there is no

law that grants him the authority or power to make such a declaration.

Neither the Human Security Act (RA 9372) nor the Local Government Code

of 1991 (RA 7160) grants the provincial governor the authority to declare a

state of emergency. On the contrary, the power to declare a state of

emergency or a state of rebellion is exclusively with the president as the

chief executive and as the commander-in-chief.

Respondent governor, although a local chief executive is not the

Chief Executive mentioned in Section 1 of Article VII and neither is he the

Commander-in-Chief referred to in Section 18 thereof. The respondent

governor arrogated unto himself and usurped the exclusive power of the

chief executive. This is a culpable violation of the Constitution.

2. ONLY THE PRESIDENT CAN CALL UPON THE ARMED FORCES TO SUPPRESS LAWLESS VIOLENCE, REBELLION OR SEDITION

As held in Sanlakas, the calling out power is executive power granted

the President, as Commander-in-Chief by Section 18, Article VII of the

Constitution. This Court, in that case, held:

“The above provision grants the President, as

Commander-in-Chief, a “sequence” of “graduated power[s].” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of

12 357 SCRA 756

25

the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines vs. Zamora, “[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that “whenever it becomes necessary,” the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.”13

Premises considered, it is respectfully submitted that the

Proclamation No. 1 and its implementing Guidelines are unconstitutional,

since it encroached upon clearly exclusive powers of the President to

declare a state of emergency and to call out the armed forces.

An encroachment is merely an oversimplification of the

unconstitutionality of the action of the respondent because the truth is, it

even exceeded the authority granted the President under Section 18

because the respondent governor called out the armed forces and made

them parallel and on equal footing with his own army of Civilian Emergency

Forces to set-up checkpoints, impose curfew, conduct search, seizure and

arrest, and, conduct other actions or police operations. Respondent had

called on the armed forces to perform a civilian function of government,

which is law enforcement – a task clearly beyond suppressing or

preventing lawless violence, insurrection or rebellion.

3. IT IS THE PRESIDENT ALONE WHO HAS THE AUTHORITY TO ISSUE A PROCLAMATION

Furthermore, in sustaining the declaration of a state of rebellion by

the President, this Court in Sanlakas vs. Executive Secretary, finds support

in the provision of the Administrative Code. It said:

“the President’s authority to declare a state of rebellion

springs in the main from her powers as chief executive and, at the same time draws strength from her Commander-in-Chief

13 Supra

26

Powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987, which states:

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. [Underline supplied]

Under the foregoing provision of law, only the President can issue a

proclamation declaring a status or condition of public moment or interest.

The legislative authority of the provincial governor is limited only to the

issuance of “executive orders for the faithful and appropriate enforcement

and execution of laws and ordinances”14

.

4. THE DECLARATION OF THE RESPONDENT GOVERNOR IS AN INVALID AND UNJUSTIFIED EXERCISE OF POLICE POWER

Neither can the challenged acts be justified under the exercise of

police power which is lodged primarily in the national legislature. By virtue

of a valid delegation of legislative power, it may also be exercised by the

President and administrative boards as well as the lawmaking bodies on all

municipal levels15

. In the provinces, it is the Sangguniang Panlalawigan

that is vested with police powers and not the provincial governor. Thus,

only the actions of the Sangguniang Panlalawigan may be defended on the

ground of a valid exercise of police power.

But even the invocation of police power by the legislature in cases of

emergency is not without limitations. In Homeowners Association of the

14 Section 465, 2 (iii), R. A. 7160 15 Cruz, Constitutional Law, P. 46, 2003 Edition

27

Philippines vs. The Municipal Board of the City of Manila16

, the Court had

the opportunity to discuss the nature of police power in times of

emergency. It ruled:

“xxx. The police power measure must be “reasonable”. In other words, individual rights may be adversely affected by the exercise of police power to the extent only, and only to the extent, that may fairly be required by the legitimate demands of public interest or public welfare. If such demands are brought about by a state of emergency, the interference upon individual rights, resulting from the regulations adopted to meet the situation, must be, by and large, co-extensive, co-equal or co-terminus with the existence thereof. And, since an emergency is by nature temporary in character, so must the regulations promulgated therefore be. In the language of Justice Holmes, “circumstances may so change in time or differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely public concern.” Or, as the American Jurisprudence puts it, “a limit in time to tide over passing trouble may justify a law that could not be upheld as a permanent change.”

As a consequence a law or ordinance affecting the rights of

individuals, as a means to tide over a critical condition, to be valid and legal, must be for a “definite” period of time, the length of which must be “reasonable”, in relation to the nature and duration of the crisis it seeks to overcome or surmount. xxx. xxx. xxx.

The practical reason for the requirement that statute passed to

meet a given emergency, should limit the period of its effectivity, is that, otherwise, a new and different law would be necessary to repeal it, and said period would, accordingly, be “unlimited, indefinite, negative and uncertain”, so “that which was intended to meet a temporary emergency may become a permanent law”, because “Congress might not enact or repeal, and, even if it would, the repeal might not meet the approval of the President, and the Congress might not be able to override the veto”. In line with the basic philosophy underlying the authority to affect individual rights, this Court felt that Commonwealth Act No. 671, otherwise known as the Emergency Powers Act, was meant to be and “become inoperative when Congress met in regular session on May 25, 1946,” and that Executive Orders Nos. 62, 192, 225 and 226 promulgated subsequently thereto, were issued without authority of law”, because, otherwise, said emergency regulations would purport to be in force for an indefinite and unlimited period of time, and, hence, would be unconstitutional.”

The same considerations impelled the Court to invalidate Executive

Order Nos. 545 and 546, issued on November 10, 1952. Indeed, otherwise “the result would be obvious unconstitutionality”, by making permanent a law intended to afford a relief for a temporary emergency,

16 G.R. No. L-23979, August 30, 1968

28

the length of which should be “fixed in the law itself and not dependent upon the arbitrary or elastic will of either Congress or the President.”

Thus, official actions taken in times of emergency under the police

power of the legislature must be impermanent, co-extensive, co-equal or

co-terminus with the existence thereof and that regulations promulgated

pursuant thereto must similarly be temporary. Thus, the assailed

Declaration of a State of Emergency is invalid because the duration which it

is effective is not fixed in the law itself and is made dependent upon the

arbitrary or elastic will of the respondents.

Finally, the powers of local government unit are not absolute. They

are subject to limitations laid down by the Constitution and the laws. And,

that the local government unit should refrain from acting towards that

which prejudice or adversely affect the general welfare.17

Certainly,

Proclamation No. 1 and its Guideline prejudice and adversely affect the

people’s welfare and right to security and safety. It may have the noblest

of intent, but the means employed to accomplish the desired objective is

not reasonable; it is arbitrary.

6. THE GOVERNOR CANNOT ORDER A GENERAL SEARCH, SEIZURE AND ARREST. HE ALSO CANNOT ORDER THE SETTING-UP OF CHECK POINTS.

The first order of the assailed Proclamation is the “setting-up of

check-points and chokepoints in the province.” It provides:

“1. The setting-up of checkpoints and chokepoints in the

province. 3. The conduct of General Search and Seizure including

arrests in the pursuit of the kidnappers and their supporters;”

The assailed Guideline provides:

17 Makasiano vs. Diokno, 212 SCRA 464

29

“Section 2 - Checkpoints shall be established in locations to be determined by the appropriate PNP/AFP authorities and for a 24/7 duration and of such composition and number as the said official deems necessary. There shall be at least one female member of the group.

Section 3 – Visits, Boards, Searches, and Seizure shall be

conducted in the vessels in the waters surrounding the province in accordance with the SOP observed by the Philippine Navy;

3.1. The Team of Officers and Enlisted Personnel of

the apprehending vessel must be in complete and presentable uniform; Utmost courtesy must be accorded to the crew and passengers of the suspected vessel being inspected paying particular attention to the safety and comfort of the elderly, women and children passengers;

3.2. Members of the Boarding Team shall ensure that

their firearms are secured. Guns aboard the apprehending vessel must be ready to fire if and when needed.

3.3. If after inspection all papers appear to be in

order and no violations are noted, the apprehending vessel shall issue a Boarding Certificate to the suspected vessel and allow the latter to resume its voyage.

3.4. In the event that violations are noted, the

apprehending vessel shall initiate apprehension of the suspected vessel and/or seizure of its cargo. The Boarding Team shall accomplish an Inspection/Apprehension Report (IAR) and issue a copy of the same to the Captain/Chief Mate of the apprehended vessel.

3.5. The apprehending vessel shall then tow or escort

the apprehended vessel to the nearest naval base/station/port. If it is not practicable under the circumstances and with clearance from the task Force/Group Commander, an apprehended vessel may be brought to another port.

3.6. Upon reaching port, the apprehending vessel

shall communicate with and turn-over the apprehended vessel and its cargo to the concerned/appropriate government agency.[underlining supplied] Section 4. Searches and seizures done in the said choke and

checkpoints or during visits, board, search , and seizure and in accordance with the applicable laws shall be used in evidence in any court of law.

Other objectionable provisions of the implementing Guidelines are as

follows:

30

A. Art. 2, Section 3 – Violators may be subjected to search and seizure as an incident to a lawful arrest. They shall be prosecuted pursuant to applicable laws.

B. Art. 3, Section 1 – Searches and seizures are to be

properly effected in the designated checkpoints and chokepoints.

C. Art. 3, Section 2 – Arrests without warrant may be

affected against persons suspected to be engaged in kidnapping activities; or against persons giving aid or comfort to kidnappers.

These provisions violate the constitutional right against unreasonable

search and seizure provided under Section 2, Article III of the Constitution,

thus:

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

6.a. Only a judge can issue warrants or order searches and

seizures

The assailed Proclamation is an order of the respondent governor to

conduct general search, seizure and arrest addressed to the police, the

armed forces and his civilian emergency forces. This is contrary to the

above provision in the Constitution that a warrant, which is either an order

to search or to arrest, must be sign by a judge.

In Salazar vs. Achacoso18

, this Honorable Court declared as

unconstitutional Article 38 of the Labor Code authorizing the Secretary of

Labor to “cause the arrest and detention” and “order the search” of the

office and the “seizure of documents” of any unlicensed recruiter for

overseas employment. It declared:

18 183 SCRA 145

31

“The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge,

may no longer issue search or arrest warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraphs (c), of the Labor Code, unconstitutional and of no force and effect.”

In Alih vs. Castro19

, the Court acquitted petitioner Alih because the

order to search the house of Alih was admitted by the military to have

come from the Commander of the Southern Command and not from a

judge. The Court said:

“When the respondents could have easily obtained a search warrant from any of the TEN civil courts open and functioning in Zamboanga City, they instead simply barged into the beleaguered premises on the verbal order of their superior officers. One cannot just force his way into any man’s house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all free regimes, that a man’s house is his castle.”

6.b. General warrant is prohibited by the Constitution

A general warrant or a “scatter-shot warrant” is a search warrant

which vaguely describes and does not particularize the personal properties

to be seized without a definite guideline to the searching team as to what

items might be lawfully seized, thus giving the officers discretion regarding

what articles they should seize20

.

The order to conduct general search and seizure resurrects the

vestige of authoritarian rule which is precisely the object sought to be

prevented by the constitutional requirement that the warrant must not only

refer to one specific offence but must also described the place to be

searched or the persons or things to be seized. General warrants as

contemplated by the assailed promulgation have been repeatedly nullified

by this Honorable Court. 19 151 SCRA 279 20 Nolasco v. Pano, G.R. No. 69803, October 8, 1985

32

In Stonehill vs. Diokno21

, the Court nullified the warrant charging a

person with violation of several laws and authorizing the seizure of

documents relating to all business transactions by saying, that:

“Thus, the warrants authorized the search for the seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights – that the things to be seized be particularly described – as well as tending to defeat its major objective: the elimination of general warrants.” [emphasis supplied]

In Burgos vs. Chief of Staff22, this Court nullified as general warrant

the search warrant authorizing the seizure of almost all properties in the

office of a newspaper publisher. Another general warrant was nullified in

Nolasco vs. Pańo23

, because:

“There is absent a definite guideline to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general.”

The assailed Proclamation and its implementing Guidelines grants the

police and the military, worst even more the civilian emergency forces, the

unbridled discretion of what to search and seize.

6.c. Searches and arrests cannot be based on suspicion but on probable cause

The above-mentioned Article 1, Section 3 of the implementing

Guidelines authorized the warrantless search, seizure and arrest on board

of a vessel, be it motorized or otherwise. It also dispensed with the

requirement that the apprehending officer must act based on probable 21 54 SCRA 312/ 22 133 SCRA 800 23 139 SCRA 152

33

cause. Although a warrantless search and seizure on board of vessels is

considered a traditional exception to the constitutional requirement of a

warrant because the vessel can be quickly moved out of the locality or

jurisdiction in which the search must be sought before the warrant could

be secured24, subsequent cases like that of Papa vs. Mago25

still requires

that there should be probable cause for the arrest and the search.

However, Section 1 of Article 3 of the implementing Guidelines makes

searches and seizures mandatory in checkpoints and chokepoints as

evident from the used of present tense “are” in the phrase “are to be

properly effected” even without the required probable cause. As can be

recalled, searches in checkpoints can only be made if there is probable

cause or waiver on the part of the person to be searched. Otherwise, the

officers manning the checkpoints must limit themselves to visual search.26

This rule was explained fully in Cabales vs. Court of Appeals27

“The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches w ithout warrants if made w ithin the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case.

, thus:

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.

One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been

24 Roldan vs. Arca, 65 SCRA 336 25 22 SCRA 857 26 Valmonte vs. De Villa, 27 G.R. No.136292, January 15, 2002

34

declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an extensive search.

Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area.

In this case of Cabales, the Court in acquitting the accused based on

the illegality of the searched ruled, that: “the fact that the vehicle looked

suspicious simply because it is not common for such to be covered with

kakawati leaves does not constitute "probable cause" as would justify the

conduct of a search without a warrant”.

The Court also related the case of People vs. Chua Ho San28

“In People vs. Chua Ho San, we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled w ith the suspicious behavior of the accused when he attempted to flee from the police authorit ies do not sufficiently establish probable cause. Thus:

, thus:

“xxx”

“xxx The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied)

6.d. Law ful arrest must precede the warrantless search

Section 3.4 of the Guidelines authorizes “fishing expedition”. This

provision when read together with the rest of the provisions on Section 3

provides a clearer picture that a search of a vessel within the seas

surrounding the province is a must even without “probable cause”. Thus, 28 People vs. Chua Ho San, 308 SCRA 432

35

any vessel within the Sulu Sea can be boarded upon and search by the

police, the military and the civilian emergency forces. Should a violation is

noted; a seizure and arrest will then be made. This runs counter to the

repeated doctrine that “there must first be a lawful arrest before a search

can be made-the process cannot be reversed.”29

In his dissent in People vs. Malmstedt30

, Justice Narvasa said:

“The search was, therefore, il legal since the law requires that there first be a law ful arrest of an individual before a search of his body and his belongings may licit ly be made. The process cannot be reversed, i.e. a search be first undertaken, and then an arrest effected, on the strength of the evidence yielded by the search. An arrest made in that case would be unlaw ful, and the search undertaken as an incident of such unlaw ful arrest, also unlaw ful.”

The same can be said of the provision allowing the search and

seizure for violation of the curfew under Section 3 of Article 2 of the

Guidelines. It has to be remembered as stated herein that the imposition of

the curfew is not by an act of legislature in the exercise of police power,

but by executive fiat. Thus, the violation of the curfew cannot be

considered a crime and the person the same is not a criminal that can be

lawfully arrested without warrant and thereafter searched, for the simple

reason that only those committing a crime in one’s presence, or is

attempting to commit a crime in one’s presence and the one who had just

committed a crime in one’s presence can be arrested without warrant by

the person arresting him.

6.e. Only evidence obtain legally may be used against the accused

Section 4, Article 1 of the Guideline sanctions the non-exclusionary

rule, which is considered contrary to both the letter and the spirit of the

constitutional injunction against unreasonable searches and seizures.31

29 Ibid.

30 198 SCRA 401

36

Ordinarily, only the articles validly seized during a lawful search is

usable in evidence, not the fact of search and seizure. Otherwise, the

constitution proscribes their presentation as evidence.

Paragraph 2, Section 3 of Article III of the Constitution provides:

“Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

Without this rule, the right to privacy would be a form of words,

valueless and undeserving of mention in a perpetual charter of inestimable

human liberties; so too, without this rule, the freedom from state invasions

of privacy would be so ephemeral and so neatly severed from its

conceptual nexus with the freedom from all brutish means of coercing

evidence as not to merit this Court's high regard as a freedom implicit in

the concept of ordered liberty32

.

6.f. Mere suspicion of being a kidnapper or giving aid or comfort to kidnappers is not a valid cause for a warrantless arrest

Section 2, Article 3 of the Guideline authorizes arrest on the basis of

being a “suspected” kidnapper or giving aid or comfort to kidnappers. This

violates the constitutional right against unreasonable search and seizure

guaranteed by Section 2 of the Bill of Rights.

It is true that arrest can be made without warrant, but only in

instances mentioned in the Rules of Criminal Procedure, particularly where

the accused is arrested in flagrante delicto. In People v. Chua Ho San,29 the

Court held that in cases of in flagrante delicto arrests, a peace officer or a

private person may, without a warrant, arrest a person when, in his

presence, the person to be arrested has committed, is actually committing,

or is attempting to commit an offense. The arresting officer, therefore,

31 Stonehill vs. Diokno, 20 SCRA 383 32 People vs. Molina, G.R. 133917,February 19, 2001

37

must have personal knowledge of such fact or, as recent case law adverts

to, personal knowledge of facts or circumstances convincingly indicative or

constitutive of probable cause. As discussed in People vs. Doria33

It is settled that "reliable information" alone, absent any overt act

indicative of a felonious enterprise in the presence and within the view of

the arresting officers, are not sufficient to constitute probable cause that

would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,

, probable

cause means an actual belief or reasonable grounds of suspicion. The

grounds of suspicion are reasonable when, in the absence of actual belief

of the arresting officers, the suspicion that the person to be arrested is

probably guilty of committing the offense, is based on actual facts, i.e.,

supported by circumstances sufficiently strong in themselves to create the

probable cause of guilt of the person to be arrested. A reasonable

suspicion therefore must be founded on probable cause, coupled with good

faith on the part of the peace officers making the arrest.

34

Membership alone or mere suspicion of being a member of the Abu

Sayyaf, no matter how notorious it may be, does not by itself justify an

arrest without warrant. Should the police and the military have reasonable

belief in their suspicion, they should apply for a search warrant or warrant

of arrest. The police and the military should not be too eager in their

approach just to render their efforts useless if their actions are nullified.

it was held that "the accused-appellant was not, at the moment of his

arrest, committing a crime nor was it shown that he was about to do so or

that he had just done so. What he was doing was descending the

gangplank of the MN Wilcon 9 and there was no outward indication that

called for his arrest. To all appearances, he was like any of the other

passengers innocently disembarking from the vessel. It was only when the

informer pointed to him as the carrier of the marijuana that he suddenly

became suspect and so subject to apprehension."

33 301 SCRA 668 34 163 SCRA 402

38

The ponencia of Justice Cruz, in People vs. Mengote finds its

relevance. He said:

“It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.” [emphasis supplied]

7. THE CURFEW IMPOSED BY PROCLAMATION NO. 1 AND ITS IMPLEMENTING GUIDELINES VIOLATES THE COSTITUTIONAL LIBERTY OF ABODE, THE RIGHT TO TRAVEL AND RIGHT OF MOVEMENT

Section 2 of the assailed Proclamation No. 1, Series of 2009,

provides:

“The imposition of curfew for the entire province subject to

such Guidelines as may be issued by proper authorities.” Article II of the assailed implementing Guidelines, provides:

“Section 1 – Curfew shall be enforced from ten o’clock in the evening up to three o’clock in the morning of the day following. Violators shall be held under custody of the apprehending officer to be turned-over to the nearest PNP station as soon as practicable.

Section 2 – In the determination as to the infraction of the

curfew, circumstances surrounding such violations as nature of employment and the like that may justify why the person is outside of his residence at the period when curfew is in effect shall be considered.

Section 3 – Violators may be subjected to search and

seizure as an incident to a lawful arrest. They shall be prosecuted pursuant to applicable laws and ordinances.” The foregoing provisions are unconstitutional as they infringe upon

the right of the people to freely roam around the locality which is

guaranteed by Section 6 of the Constitution, which reads:

39

“The liberty of the abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.”

The curfew also violates the Universal Declaration of Human Rights

which provides:

Article 13. (1) Everyone has the right to freedom of movement and residence w ithin the borders of each state.

Likewise, the International Covenant on Civil and Political Rights,

which had been ratified by the Philippines, provides:

Article 12

1) Everyone law fully w ithin the territory of a State shall, w ithin that territory, have the right to liberty of movement and freedom to choose his residence.

The above constitutional provision guarantees what is described as

rights of locomotion and freedom of movement, described in Qutb v.

Strauss35

"The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values 'implicit in the concept of ordered liberty' protected by the due process clause of the fourteenth amendment."

, as follows:

Freedom of movement is a fundamental right and is also basic in our

conception of personal liberty and instrumental to the exercise of the

fundamental rights of expression. This personal liberty consists in the

power of locomotion, of changing situation, or removing one’s person to

whatsoever place one’s own inclination may direct36

. In American

Jurisprudence, the right of free of movement is a “carefully described”

right.

35 11 F.3d 488, 492 (5th Cir. 1993) 36 William Blackstone, 1 Commentaries 34.

40

The right to move freely is of “tremendous practical significance of …

[this] everyday right, a right we depend on to carry out our daily life

activities”37. It is also implicit in the concept of ordered liberty because it is

instrumental to the exercise of other rights. It is impossible to imagine a

right of association or expression in public fora without an implicit

protection for the right to move freely. “[Freedom of movement] often

makes all other rights meaningful …. Once the right to travel is curtailed,

all other rights suffer, just as when [a] curfew or home detention is placed

on a person.”38

Under the Constitution, the liberty of abode and of changing the

same is limited only by “prescribed laws” and can be impaired only “upon

lawful order of the court. Proclamation No. 1 and its implementing

Guidelines is neither a law nor a court order. It is an executive fiat issued

without authority that shall be slain at sight.

The blanket curfew curfew imposed by the provincial governor places

an “unreasonable burden” on the right of free movement. It also constructs

a “substantial obstacle” to the fundamental right to life and liberty, which

includes the right to earn a living. It threatens everyone with punishment

for the slightest infraction thereof despite the lack of law punishing the

same.

The province of Sulu has a vast shoreline where marginal fishermen

lives and whose only source of income and livelihood is fishing in the

waters of Sulu at night or watching over falling durians in the mountains.

That right is unreasonably curtailed by the imposed curfew.

Moreover, the imposed curfew is so broad that it covers the entire

Province of Sulu. It is over-inclusive, impacting even towns that do not

have a shared problem with that of the town of Indanan, where the 37 Johnson v. City of Cincinnati 310 F.3d 484, 498 (6th Cir. 2002) 38 Aptheker v. Sec’y of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring)

41

hostages are accordingly kept. It stifles the fundamental liberty interests of

thousands of perfectly innocent, law-abiding individuals and makes them

“prisoners at night in their homes.

More objectionable is the above-cited provisions of the Guidelines,

which was promulgated by respondent Clemen of the Philippine Marines

and respondent Latag. There is no law that grants them the power to

impose curfew or to set-up rules or standards for its imposition.

The curfew thus set allows the military commander, the police and

the respondent’s civilian emergency forces to stop, search, arrest and

detain anyone they found violating the same, so that the courts and the

public are unaware of the minimum standard that justifies intrusion into

their constitutionally guaranteed rights.

8. THE GOVERNOR CANNOT ORDER THE POLICE, THE ARMED FORCES AND THE CIVILIAN EMERGENCY FORCES TO CONDUCT OF POLICE ACTIONS OR OPERATIONS

No. 4 of provision of the Proclamation No. 1 orders the Philippine

National Police, the Armed Forces and the Civilian Emergency Forces to “To

conduct such other actions or police operations as may be necessary to

ensure public safety.”

The power of a provincial governor over the PNP is expressly

provided for by Republic Act 6975, otherwise known as the Department of

the Interior and Local Government Act of 1990. It provides:

“Sec. 51. Powers of Local Government Officials Over the PNP Units or Forces. — Governors and mayors shall be deputized as representatives of the Commission in their respective territorial jurisdiction. As such, the local executives shall discharge the follow ing functions:

(a) Provincial Governor — (1) Pow er to Choose the

Provincial Director. — The provincial governor shall choose the

42

provincial director from a list of three (3) eligible recommended by the PNP regional director.

(2) Overseeing the Provincial Public Safety P lan

Implementation. — The governor, as chairman of the provincial peace and order council, shall oversee the implementation of the provincial public safety plan, which is prepared taking into consideration the integrated community safety plans, as provided under paragraph (b) (2) of this section.”

(b) City and Municipal Mayors — (1) Operational

Supervision and Control. The city and municipal mayors shall exercise operational supervision and control over PNP units in their respective jurisdiction except during the thirty (30) day period immediately preceding and the thirty (30) days follow ing any national, local and barangay elections. During the said period, the local police forces shall be under the supervision and control of the Commission on Elections.

Thus, unlike the city or municipal mayor, which has operational

supervision and control over the PNP units in their respective jurisdictions,

which includes the power to employ and deploy units or elements of

the PNP, through the station commander, to ensure public safety

and effective maintenance of peace and order w ithin the locality,

the provincial governor does not have that power. Its authority is limited

only “choose the provincial director” and “oversee the

implementation of the provincial public safety plan”. He cannot

therefore order the police forces, more so the Armed Forces and the

civilian emergency forces, to conduct police actions and operations.

9. SECTION 465, REPUCLIC ACT 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE IS UNCONSTITUTIONAL HAVING VIOLATED ARTICLE VII, SECTIONS 1 AND 18 OF THE CONSITUTION AND CONSTITUTE AN INVALID DELEGATION OF EXECUTIVE FUNCTION BY CONGRESS

The herein assailed declaration attempts to draw its breath from

Section 465, 2 (vi) of the Local Government Code of 1991, that is quoted in

43

paragraph 5 and 6 of the whereas clause of the assailed proclamation. The

law reads as follows:

“(vi) may call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion, or sedition or to apprehend violators of the law when public interest so requires and the police forces of the component city or municipality where the disorder or violation is happening are inadequate to cope up with the situation or violations.” Republic Act 7160 is an act of congress devolving certain functions of

the national government for the purpose of decentralization and for the

local government units to enjoy genuine and meaningful local autonomy39.

However, the principle of local autonomy does not make local governments

sovereign within the state, it simply means decentralization40

. By devolving

certain powers to the local government unit, congress merely delegates

some of its authority and power to the local government units.

However, congress can delegate only those powers it possesses. This

is based on the Latin maxim: “nemo dat quad non habet”. While it may

delegate legislative powers, congress can not delegate unto the local

government unit an executive power or a judicial power. In David vs.

Arroyo41, the Court mentioned: “Certainly, a body cannot delegate a power

not reposed on it.” As opined by Cruz42

, “The occasions are rare when

executive or judicial powers are exercised outside the departments to

which they legally pertain.”

But, as ruled in Sanlakas and David, the calling-out power of the

President under Section 18, Article 7 of the 1987 Constitution and the

power to declare a state of rebellion or emergency is exclusively an

executive power emanating from the Chief Executive Power under Section

39 Sec. 2, Republic Act 7160 40 Basco vs. PAGCOR, 197 SCRA 52 41 Supra 42 Cruz, Political Law, P. 91, 2002 Edition

44

1 of Article 7 and the Commander-in-Chief power under Section 18 thereof.

Thus, Congress could not validly delegate such power to the local

government unit without the express consent of the executive. Thus, all

provisions of Republic Act No. 7160, granting the local chief executive of

cities [Section 455, b, 2-vi], municipalities [Section 444, b, 2-vi] and

provinces [Section 465, b, 2-vi] the power to call upon law enforcement

agencies to suppress disorder, riot, lawless violence, rebellion or sedition,

or to apprehend violators of the law when public interest so requires and

the police forces of the component city or municipality where the disorder

or violation is happening are inadequate to cope with the situation of the

violators, constitute a delegation of power by congress of a purely

executive power, which are void.

Assuming the delegation is valid, it still has to be remembered that

the powers of a municipal corporations delegated thereto by the National

Government cannot escape the inherent limitations to which the latter, as

the source of said power is subject.43

The above mentioned provision of

the Constitution from which the above-cited provision of the local

government code has been lifted, particularly granting the President with

the call-out power is limited only to cases of lawless violence, invasion or

rebellion. Yet, the local government code which merely delegates that

power to the local chief executive broaden that power by including

“disorder”, “riot” and “to apprehend violators of the law”. Thus, unless

declared unconstitutional, the local chief executive’s call-out power is

broader and more encompassing than that of the Republic of the

Philippines, which is irregular and abnormal.

10. ASSUMING SECTION 465 IS VALID, THE PROVINCIAL GOVERNOR CLEARLY WENT BEYOND ITS LIMITS

Section 465 of the Local Government Code is clear and unequivocal:

43 Homeowners Association case

45

“(vi) may call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion, or sedition or to apprehend violators of the law when public interest so requires and the police forces of the component city or municipality where the disorder or violation is happening are inadequate to cope up with the situation or violations.” A similar provision is provided for in Section 459 of Muslim Mindanao

Autonomy Act No. 25, otherwise known as the Local Government Code of

the Autonomous Region in Muslim Mindanao.

Under the above-cited provision of law, the purpose of the calling-

out is to suppress disorder, riot, lawless violence, rebellion, or sedition or

to apprehend violators of the law. Further, it can be exercise only when

public safety requires AND the police forces of the component city

or municipality where the disorder or violation is happening are

inadequate. These are the canals that will prevent the power of the local

chief executive from overflowing.

The purpose of Proclamation No. 1, Series of 2009, is not to suppress

riot, disorder, lawless violence, rebellion or sedition or to apprehend

violators of the law but to implement the follow ing: 1. Setting-up of

checkpoints and chokepoints in the province; 2) the imposition of curfew

for the entire province subject to such guidelines as may be issued by

proper authorities; 3) The conduct of General Search and Seizure including

arrests in the pursuit of the kidnappers and their supporters; and, 4) To

conduct such other actions or police operations as may be necessary to

ensure public safety.

Additionally, the on-going hostage crisis of ICRC workers does not

require the exercise of the calling out power; it is neither a calamity nor an

emergency. Public interest does not require the calling of the law

enforcement agencies to suppress the on-going hostage taking.

46

There is also no showing from the assailed Proclamation that police

force of Indanan or the entire Sulu archipelago is not sufficient to handle

the situation. Further, it would even appear from Section 465, that the call

out power may be exercised only in the locality where the disorder or

violation is happening. Thus, since the disorder is already confined to the

Municipality of Indanan, it is already arbitrary and irrational to exercise said

power outside that locality and expand it to the entire province of Sulu.

Furthermore, the call-out power of the respondent falls under the

“enforcement power” of the provincial governor under paragraph b of

Section 465, which states:

(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of the appropriate corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activit ies of the province and, in addition to the foregoing, shall:

The above-provision implies the existence of an ordinance duly

enacted by the Sangguniang Panlalawigan in the exercise of its police

power before the chief executive can exercise its call-out power in times of

emergency. The call out power of the provincial governor, unlike that of

the President, is not self executing. There should be a law passed by the

sangguniang like that in the case of the Home Owners Association before

he may exercise the call-out power.

11. SECTION 465 DOES NOT AUTHORIZED THE ARMING AND THE CALLING OUT OF THE CIVILIAN EMERGENCY FORCES, WHO ARE LAW ENFORCEMENT AGENCIES

The law specifically provides that the provincial governor can call

upon the appropriate national law enforcement agencies and no other.

In case of cities and municipalities, the mayor may call upon the

47

appropriate law enforcement agencies. In all these cases, the local

executive can only call upon LAW ENFORCEMENT AGENCIES, which

has been defined as “an agency responsible for ensuring obedience to

the laws”. In the United States, “A law enforcement officer is a

government employee who is responsible for the prevention,

investigation, apprehension, or detention of individuals suspected or

convicted of offenses against the criminal laws, including an employee

engaged in this activity who is transferred to a supervisory or

administrative position; or serving as a probation or pre-trial services

officer.44

The police auxiliary or civilian emergency forces composed of

undisciplined militias are not a law enforcement agency.

12. PROVINCIAL GOVERNOR OR THE TASK FORCE ICRC CANNOT AMEND R.A. 8975 AND PD 1866, AS AMENDED BY R.A. 8294

Through the Guideline, the respondent’s governor, commander of the

Third Marine Brigade and the Deputy for Operations of PNP-ARMM,

suspended the permits to carry firearms outside of residences (PTCFOR)45

.

In the same breath, the implementing Guideline empowered and

authorized the Office of the Governor, upon the recommendation of the

respondent Marine Brigade Commander or the Police Provincial Director, to

grant exemption from the gun ban.

Article 4 of the Guideline is hereby quoted in full as follows:

“Section 1 – As a rule, only military and police personnel are allowed to bear arms. Firearm licenses shall be honored but permits to carry firearms outside of their residences shall be temporarily suspended for the period of this Proclamation Number 1 Series of 2009 is in effect;

44 Dictionary of Military and Associated Terms. US Department of Defense 2005 45 Section 1, Article 4 of the Guideline

48

Section 2 – Civilians may seek exemption from the gun ban by submitting accomplished application forms to the Office of the Governor upon recommendation of the Marine Brigade Commander in the area or Police Provincial Director. Section 3 – Civilians specially granted exemption from the immediately preceding article shall be issued proper identification cards. These identification cards shall be presented to proper authorities when so demanded; Section 4 – Bearers of firearms, ammunition, and explosives who fail to present such identification card shall be arrested ad the said items confiscated. The person (s) so arrested may escape criminal prosecution and the confiscated items returned upon presentations of such identification card (s) proving exemption. These are null and void for the following reasons: 12.a. Only the PNP Chief under PD 1866 as amended by Republic Act No. 6975 can issue firearms license and permits to carry firearms outside of residence and only he can revoke or suspend such right

The Court clarified in Chavez vs. Romulo46

, that “a PTCFOR, just like

ordinary licenses in other regulated fields, may be revoked any time. It

does not confer an absolute right, but only a personal privilege to be

exercised under existing restrictions, and such as may thereafter be

reasonably imposed.41 A licensee takes his license subject to such

conditions as the Legislature sees fit to impose, and one of the statutory

conditions of this license is that it might be revoked by the select men

at their pleasure. Such a license is not a contract, and a revocation of it

does not deprive the defendant of any property, immunity, or privilege

within the meaning of these words in the Declaration of Rights.

In the same case, the Court held that under existing laws, only the

PNP Chief has the power and authority to grant, revoke or suspend permit

to carry firearms outside of residence. The said authority is anchored on a

specific provision of law validly delegated to the PNP Chief. A similar

delegation is also made in favor of the Commission on Elections during

election periods. But, there is no provision of law that empowers the 46 G.R. No. 157036, June 9, 2004

49

provincial governor or the provincial director of the PNP in the Province to

grant, revoke or suspend permits to carry firearms outside of residence.

The deputy director for operations of the Philippine National Police,

being a subordinate, cannot revoke or suspend the PTCFOR issued by the

PNP Chief.

This Court in that case ruled:

”By virtue of Republic Act No. 6975, the Philippine National Police (PNP) absorbed the Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latter’s licensing authority. Section 24 thereof specifies, as one of PNP’s powers, the issuance of licenses for the possession of firearms and explosives in accordance with law. This is in conjunction with the PNP Chief’s "power to issue detailed implementing policies and instructions" on such "matters as may be necessary to effectively carry out the functions, powers and duties" of the PNP.

Contrary to petitioner’s contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue rules and regulations regarding firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and reintegration of the convicts into the community.

Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed guidelines.

Nothing is more settled in law that a public official exercises power,

not rights. The government itself is merely an agency through which the

will of the State is expressed and enforced. Its officers, therefore, are

likewise agents entrusted with the responsibility of discharging its

functions. As such, there is no presumption of authority, either express or

implied. In the absence of a valid grant, public officers are devoid of

50

power. What they do, suffers from a fatal infirmity.47

Public officers have

only those powers expressly granted or necessarily implied by law.

It has also been held that “Except for constitutional officials who can

trace their competence to act to the fundamental law itself, a public official

must locate in the statute relied upon a grant of power before he can

exercise it. It need not be express. It may be implied from the wording of

the law. Absent such requisite, however, no warrant exists for the

assumption of authority. The act performed, if properly challenged, cannot

meet the test of validity. IT MUST BE SET ASIDE.”

12.b. The respondents cannot substitute the PTCFOR w ith the identification cards

Under Section 2 of the implementing Guidelines, only those with

identification cards issued by the respondent governor upon

recommendation of his co-respondents can carry firearms outside of their

residences. This is not only contrary to law but also subject to abuse since

no standards are mentioned for the issuance of the identification cards.

The power to grant or to withhold the application for identification cards is

solely left to the unbridled discretion of the respondents.

The provincial governor, police provincial director and the marine

commander cannot create authority nor pretend to be vested with

authority. The issuance of identification cards for exemption from criminal

liability for possession of a licensed firearm violates Section 24 of Republic

Act No. 6975, granting the PNP the power to “(f) Issue licenses for the

possession of firearms and explosives in accordance w ith law .”

The Guidelines, in effect amends the provisions of P.D. 1866 and

R.A. 6975 and it expands unreasonably the herein questioned

Proclamation. This is clearly ultra-vires, illegal; and, should be declared 47 Villegas vs. Subido, 33 SCRA 498

51

and considered as non-existence, because it is contrary to existing laws

and the Proclamation on which it is accordingly base.

In Cebu Oxygen & Acetylene Co., Inc. vs. Secretary Drilon48

, the

issue was the validity of the implementing rules providing for a prohibition

not contemplated by the law it seeks to implement. In sticking out the law

for being unconstitutional, the Court ruled:

“xxx, it is a fundamental rule that implementing rules cannot add or detract from the provisions of law it is designed to implement. xxx. The implementing rules cannot provide for such a prohibit ion not contemplated by the law .

Administrative regulations adopted under legislative

authority by a particular department must be in harmony w ith the provisions of the law , and should be for the sole purpose of carrying into effects its general supervision. The law itself cannot be expanded by such regulations. An administrative agency cannot amend an act of congress.”

The case at bar is more objectionable than the aforesaid questioned

regulations because there is no delegating statute expressly authorizing

the respondents to promulgate rules concerning the issuance or

cancellation of permit to carry firearms outside of residence. Yet, they

promulgate the assailed Guideline and included matters not originally

covered by the assailed Proclamation of state of emergency.

12.c. The implementing Guidelines penalize possession of firearms with authority of law amending RA 8294

The assailed implementing Guidelines penalize possession of

firearms by persons with authority validly issued by the PNP Chief, e.g.

with permit to carry firearms outside of residence (PTCFOR).

Under the herein assailed Guidelines, even those with validly issued

PTCFOR can be arrested and their firearms confiscated unless they are

able to present the identification cards issued by the respondent governor

48 176 SCRA 24

52

after their application for exemption shall have been approved. They can

only “escape criminal prosecution and the confiscated items returned upon

presentation of such identification card(s) proving exemption. ”

This runs counter the recognized doctrine “that for an administrative

regulation to have the force of penal law it is necessary that such violation

be made a crime by the delegating statute, that the penalty be provided

by the statute itself, and that the regulation be published.”49

As stated earlier, there is no delegating law and no definition of a

crime in the delegating statute. There is also no provision on penalty and

both the Proclamation and its implementing Guidelines were not published

according to law as hereinafter shown.

12.d. The implementing Guidelines left the penalty to the sole discretion of the Court

The implementing Guideline did not provide for the penalty of

possession of firearms with authority from the PNP Chief, leaving the

matter entirely to the judge who will eventually be called upon to interpret

and enforce it. This violates another legal doctrine that the legislature

cannot leave to the courts the determination of the period of

imprisonment or the penalty therefore. We can find inputs from People vs.

Decency50

, the Supreme Court, in invalidating a law that left to the

judiciary the determination of the duration of the penalty, held:

“It is not for the courts to fix the term of imprisonment where no points of reference have been provided by the legislature. What valid delegation presupposes and sanctions is an exercise of discretion to fix the length of service of a term of imprisonment which must be encompassed within the specific or designated limits provided by law, the absence of which designated limits will constitute such exercise as an undue delegation, if not outright intrusion into or assumption, of legislative power.

49 Bernas, Constitutional Structure & Powers of Government, Notes and Cases, P. 48, 1991 Edition 50 173 SCRA 90

53

Section 32 of Republic Act No. 4670 provides for an indeterminable period of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative authority. The courts are thus given a w ide latitude of discretion to fix the term of imprisonment, w ithout even the benefit of any sufficient standard, such that the duration thereof may range, in the words of the respondent judge, from one minute to the lifespan of the accused. Irremissibly, this cannot be allowed. I t vest in the courts the power and a duty essentially legislature in nature and which, as applied to this case, does violence to the rules on separation of powers as w ell as non-delegability of legislative powers. This time, the presumption of constitutionality has to yield.”

13. PROCLAMATION NO. 1, SERIES OF 2009 AND ITS IMPLEMENTING GUIDELINES, NOT HAVING BEEN PUBLISHED, IS NOT EFFECTIVE

As alleged, the assailed Proclamation No. 1 was made public on

March 31, 2009 and it’s implementing Guidelines, though it came later, was

also dated March 31, 2009. Immediately afterwards or on April 1, 2009,

without first publishing the same, respondents implemented the same with

the arrest of petitioner Jadjuli.

The immediate implementation of the herein assailed Proclamation

and its implementing Guidelines violates Executive Order No. 200, June 18,

1987, amending Article 2 of the Civil Code and states:

“Laws shall take effect after fifteen days follow ing the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherw ise provided.”

The purpose of this requirement “is necessary to apprise the public of

the contents of [penal] regulations and make the said penalties binding on

the persons affected thereby." As held in Tanada vs. Tuvera51

“It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents.”

, thus:

51 G.R. No. L-63915 April 24, 1985

54

XI. ALLEGATIONS IN SUPPORT OF THE URGENT APPLICATION

FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION

11.1. Petitioners replead by reference all the foregoing allegations.

11.2. As will be shown, it is respectfully submitted that the elements

for the issuance of a temporary restraining order and/or writ of preliminary

injunction are present in the instant case, to wit: “(1) The invasion of the

right is material and substantial; (2) The right of complainant is clear and

unmistakable; (3) There is an urgent and permanent necessity for the writ

to prevent serious damage.” (Versoza v. Court of Appeals 299 SCRA

100, 108 [1998]).

11.3. As shown, petitioners have established their clear and legal

right in the instant case, in that public respondents cannot execute and

implement Proclamation No. 1 and its Implementing Guideline as these are

unconstitutional and issued with grave abuse of discretion.

11.4. Being issued without or in excess of jurisdiction, the March 31,

2009 Proclamation and its Implementing Guideline are void and of no legal

effect in the same way as a judgment which was rendered by a court

without or in excess of jurisdiction. “It is, of course, a well-settled rule that

when the court transcends the limits prescribed for it by law and

assumes to act where it has no jurisdiction, its adjudications will

be utterly void and of no effect either as an estoppel or

otherwise.” (Agustin v. Bacalan, 135 SCRA 340, 349 [1985]) (Emphasis

supplied)

11.5. Corollarily, this Honorable Court has ruled that a void judgment

has no legal effect and is deemed to be no judgment at all. In Estoesta,

Sr. v. Court of Appeals, 179 SCRA 203, 212 (1989), the Supreme Court

held: “Quoting with approval Freeman on Judgments this court in Gomez v.

55

Concepcion (47 Phil. 717) declared that: ‘A void judgment is in legal

effect no judgment. By it no rights are divested. From it no rights

can be obtained. Being worthless in itself, all proceedings founded

upon it are equally worthless. It neither binds nor bar any one. All

acts performed under it and claims flowing out of it are void.xxx”

11.6. However, notwithstanding that the challenged Proclamation No.

1 and its Implementing Guideline are void and of no legal effect, public

respondents are doing, or are suffering to be done, acts in violation of

petitioner’s right in the instant action and tending to render judgment in

this case ineffectual.

11.7. In addition, the damages caused by the public respondents to

the civil and political rights of petitioners and of the Filipino in general are

grave and irreparable, which is defined by this Honorable Court as those

that are of such constant recurrence and are incapable of being justly

compensated.

11.8. Hence, unless public respondents and their agents or any

person acting in their behalf are restrained from implementing and

executing Proclamation No. 1 and its implementing Guideline as well as the

orders issued subsequent thereto, petitioners stand to suffer grave and

irreparable injury.

11.9. Petitioners are ready, willing and able to post a bond in favor of

respondents; in such amount as this Honorable Court may fix to answer for

any and all damages which respondents may suffer by reason of the

issuance of a writ of preliminary injunction should this Honorable Court

finally decide that petitioners are not entitled thereto.

PRAYER

WHEREFORE, petitioners most respectfully and humbly pray that:

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1. Immediately upon the filing of this Petition, this Honorable Court

issue a Temporary Restraining Order (TRO) enjoining and restraining

respondents, their representatives or any person or agent acting in their

behalf, from enforcing and/or executing the Proclamation No. 1 and

Guidelines implementing the same.

2. After due notice, hearing and posting of the requisite bond, this

Honorable Court issue a writ of preliminary injunction restraining and

enjoining respondents, their representatives or any person or agent acting

in their behalf, from enforcing and/or executing the Proclamation No. 1 and

the implementing Guideline issued subsequent thereto.

3. After giving due course to the instant Petition and after

due consideration of the issues, this Honorable Court render judgment:

a) making the writ of preliminary injunction permanent;

and

b) Annulling and setting aside the challenged

Proclamation No. 1 and the Guideline implementing the same;

Other just and equitable reliefs are likewise prayed for.

Zamboanga City, for City of Manila, 8 April 2009.

JAMAR M. KULAYAN Petitioner/Counsel

Unit 1, 2nd Floor, J. Atilano Bld’g., I. Magno Street, Zamboanga City

PTR No. 2952954 – 01/05/06 – Zamboanga City IBP No. 02732 – 01/10/02 – ZAMBASULTA

Roll of Attorneys No. 42828 MCLE Compliance No. I-0017255

Mobile Nos: 09268774444/09086135978

57

COPY FURNISHED:

1. GOV. ABDUSAKUR M. TAN Office of the Provincial Governor Capitol Site,Patikul, Sulu Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila 2. GENERAL JUANCHO SABAN,PN GENERAL EUGENIO CLEMEN, PN Task Force COMET/3RD Marie Brigade Camp Gen. Bautista Kasulutan Village, Jolo, Sulu Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila 3. PSSUPT. BIENVENIDO G. LATAG PSUPT. JULASIRIM KASIM, PNP Sulu Police Provincial Office PC Compound, Camp Asturias, Jolo, Sulu Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila 4. The Solicitor General 134 Amorsolo St., Legaspi Village, Makati City Reg. Receipt No.______, April 15, 2009 at Robinson’s Place, Manila

EXPLANATION AS TO MODE OF SERVICE

The foregoing Petition for Certiorari and Prohibition is being served on the respondents by registered mail due to time constraints, distance and the present unavailability of messengerial personnel.

JAMAR M. KULAYAN