through a sustained street patrolling to minimize or eradicate all forms

of high-profile crimes especially those perpetrated by organized crime

syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.
EN BANC
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
G.R. No. 141284               August 15, 2000
a. The visibility patrols shall be conducted jointly
INTEGRATED BAR OF THE PHILIPPINES, petitioner, by the NCRPO [National Capital Regional Police
vs. Office] and the Philippine Marines to curb
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. criminality in Metro Manila and to preserve the
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents. internal security of the state against insurgents
and other serious threat to national security,
although the primary responsibility over Internal
DECISION Security Operations still rests upon the AFP.

KAPUNAN, J.: b. The principle of integration of efforts shall be

applied to eradicate all forms of high-profile
At bar is a special civil action for certiorari and prohibition with prayer crimes perpetrated by organized crime syndicates
for issuance of a temporary restraining order seeking to nullify on operating in Metro Manila. This concept requires
constitutional grounds the order of President Joseph Ejercito Estrada the military and police to work cohesively and
commanding the deployment of the Philippine Marines (the "Marines") unify efforts to ensure a focused, effective and
to join the Philippine National Police (the "PNP") in visibility patrols holistic approach in addressing crime prevention.
around the metropolis. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery
In view of the alarming increase in violent crimes in Metro Manila, like of basic services to the people and development is
robberies, kidnappings and carnappings, the President, in a verbal achieved. Hand-in-hand with this joint NCRPO-
directive, ordered the PNP and the Marines to conduct joint visibility Philippine Marines visibility patrols, local Police
patrols for the purpose of crime prevention and suppression. The Units are responsible for the maintenance of
Secretary of National Defense, the Chief of Staff of the Armed Forces peace and order in their locality.
of the Philippines (the "AFP"), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential c. To ensure the effective implementation of this
mandate, the PNP Chief, through Police Chief Superintendent Edgar B. project, a provisional Task Force "TULUNGAN"
Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which shall be organized to provide the mechanism,
detailed the manner by which the joint visibility patrols, called Task structure, and procedures for the integrated
Force Tulungan,  would be conducted.2 Task Force Tulungan  was planning, coordinating, monitoring and assessing
placed under the leadership of the Police Chief of Metro Manila. the security situation.

Subsequently, the President confirmed his previous directive on the xxx.8

deployment of the Marines in a Memorandum, dated 24 January 2000,
addressed to the Chief of Staff of the AFP and the PNP Chief. 3 In the The selected areas of deployment under the LOI are: Monumento
Memorandum, the President expressed his desire to improve the peace Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM
and order situation in Metro Manila through a more effective crime Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA
prevention program including increased police patrols. 4 The President and Domestic Airport.9
further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.5 Invoking his powers as
Commander-in-Chief under Section 18, Article VII of the Constitution, On 17 January 2000, the Integrated Bar of the Philippines (the "IBP")
the President directed the AFP Chief of Staff and PNP Chief to filed the instant petition to annul LOI 02/2000 and to declare the
coordinate with each other for the proper deployment and utilization of deployment of the Philippine Marines, null and void and
the Marines to assist the PNP in preventing or suppressing criminal or unconstitutional, arguing that:
lawless violence.6 Finally, the President declared that the services of
the Marines in the anti-crime campaign are merely temporary in nature I
and for a reasonable period only, until such time when the situation
shall have improved.7
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA
IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
The LOI explains the concept of the PNP-Philippine Marines joint
visibility patrols as follows:
A) NO EMERGENCY SITUATION OBTAINS IN
METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
xxx REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID
2. PURPOSE: DEPLOYMENT IS IN DEROGATION OF ARTICLE II,
SECTION 3 OF THE CONSTITUTION;

The Joint Implementing Police Visibility Patrols between the PNP

NCRPO and the Philippine Marines partnership in the conduct of B) SAID DEPLOYMENT CONSTITUTES AN
visibility patrols in Metro Manila for the suppression of crime INSIDIOUS INCURSION BY THE MILITARY IN A
prevention and other serious threats to national security. CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE
XVI, SECTION 5 (4), OF THE CONSTITUTION;
3. SITUATION:

C) SAID DEPLOYMENT CREATES A DANGEROUS

Criminal incidents in Metro Manila have been perpetrated not only by TENDENCY TO RELY ON THE MILITARY TO
ordinary criminals but also by organized syndicates whose members PERFORM THE CIVILIAN FUNCTIONS OF THE
include active and former police/military personnel whose training, GOVERNMENT.
skill, discipline and firepower prove well-above the present capability
of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in II
urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel. IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
4. MISSION: POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10

The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free,
Asserting itself as the official organization of Filipino lawyers tasked to file the present action. To be sure, members of the BAR, those in
with the bounden duty to uphold the rule of law and the Constitution, the judiciary included, have varying opinions on the issue. Moreover,
the IBP questions the validity of the deployment and utilization of the the IBP, assuming that it has duly authorized the National President to
Marines to assist the PNP in law enforcement. file the petition, has not shown any specific injury which it has suffered
or may suffer by virtue of the questioned governmental act. Indeed,
none of its members, whom the IBP purportedly represents, has
Without granting due course to the petition, the Court in a
sustained any form of injury as a result of the operation of the joint
Resolution,11 dated 25 January 2000, required the Solicitor General to
visibility patrols. Neither is it alleged that any of its members has been
file his Comment on the petition. On 8 February 2000, the Solicitor
arrested or that their civil liberties have been violated by the
General submitted his Comment.
deployment of the Marines. What the IBP projects as injurious is the
supposed "militarization" of law enforcement which might threaten
The Solicitor General vigorously defends the constitutionality of the act Philippine democratic institutions and may cause more harm than good
of the President in deploying the Marines, contending, among others, in the long run. Not only is the presumed "injury" not personal in
that petitioner has no legal standing; that the question of deployment character, it is likewise too vague, highly speculative and uncertain to
of the Marines is not proper for judicial scrutiny since the same satisfy the requirement of standing. Since petitioner has not
involves a political question; that the organization and conduct of successfully established a direct and personal injury as a consequence
police visibility patrols, which feature the team-up of one police officer of the questioned act, it does not possess the personality to assail the
and one Philippine Marine soldier, does not violate the civilian validity of the deployment of the Marines. This Court, however, does
supremacy clause in the Constitution. not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of
The issues raised in the present petition are: (1) Whether or not allegations and proof, satisfy this Court that it has sufficient stake to
petitioner has legal standing; (2) Whether or not the President’s obtain judicial resolution of the controversy.
factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the Having stated the foregoing, it must be emphasized that this Court has
armed forces to assist the PNP in joint visibility patrols violates the the discretion to take cognizance of a suit which does not satisfy the
constitutional provisions on civilian supremacy over the military and requirement of legal standing when paramount interest is involved. 16 In
the civilian character of the PNP. not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of
The petition has no merit. transcendental significance to the people.17 Thus, when the issues
raised are of paramount importance to the public, the Court may brush
aside technicalities of procedure.18 In this case, a reading of the
First, petitioner failed to sufficiently show that it is in possession of the petition shows that the IBP has advanced constitutional issues which
requisites of standing to raise the issues in the petition. Second, the deserve the attention of this Court in view of their seriousness, novelty
President did not commit grave abuse of discretion amounting to lack and weight as precedents. Moreover, because peace and order are
or excess of jurisdiction nor did he commit a violation of the civilian under constant threat and lawless violence occurs in increasing tempo,
supremacy clause of the Constitution. undoubtedly aggravated by the Mindanao insurgency problem, the
legal controversy raised in the petition almost certainly will not go
The power of judicial review is set forth in Section 1, Article VIII of the away. It will stare us in the face again. It, therefore, behooves the
Constitution, to wit: Court to relax the rules on standing and to resolve the issue now,
rather than later.

Section 1. The judicial power shall be vested in one Supreme Court

and in such lower courts as may be established by law. The President did not commit grave abuse of discretion in calling out
the Marines.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and In the case at bar, the bone of contention concerns the factual
enforceable, and to determine whether or not there has been grave determination of the President of the necessity of calling the armed
abuse of discretion amounting to lack or excess of jurisdiction on the forces, particularly the Marines, to aid the PNP in visibility patrols. In
part of any branch or instrumentality of the Government. this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the President
as stated in Section 18, Article VII of the Constitution, specifically, the
When questions of constitutional significance are raised, the Court can power to call out the armed forces to prevent or suppress lawless
exercise its power of judicial review only if the following requisites are violence, invasion or rebellion. What the IBP questions, however, is the
complied with, namely: (1) the existence of an actual and appropriate basis for the calling of the Marines under the aforestated provision.
case; (2) a personal and substantial interest of the party raising the According to the IBP, no emergency exists that would justify the need
constitutional question; (3) the exercise of judicial review is pleaded at for the calling of the military to assist the police force. It contends that
the earliest opportunity; and (4) the constitutional question is the lis no lawless violence, invasion or rebellion exist to warrant the calling of
mota  of the case.12 the Marines. Thus, the IBP prays that this Court "review the sufficiency
of the factual basis for said troop [Marine] deployment." 19
The IBP has not sufficiently complied with the requisites of standing in
this case. The Solicitor General, on the other hand, contends that the issue
pertaining to the necessity of calling the armed forces is not proper for
"Legal standing" or locus standi  has been defined as a personal and judicial scrutiny since it involves a political question and the resolution
substantial interest in the case such that the party has sustained or will of factual issues which are beyond the review powers of this Court.
sustain direct injury as a result of the governmental act that is being
challenged.13 The term "interest" means a material interest, an interest As framed by the parties, the underlying issues are the scope of
in issue affected by the decree, as distinguished from mere interest in presidential powers and limits, and the extent of judicial review. But,
the question involved, or a mere incidental interest. 14 The gist of the while this Court gives considerable weight to the parties’ formulation of
question of standing is whether a party alleges "such personal stake in the issues, the resolution of the controversy may warrant a creative
the outcome of the controversy as to assure that concrete adverseness approach that goes beyond the narrow confines of the issues raised.
which sharpens the presentation of issues upon which the court Thus, while the parties are in agreement that the power exercised by
depends for illumination of difficult constitutional questions."15 the President is the power to call out the armed forces, the Court is of
the view that the power involved may be no more than the
In the case at bar, the IBP primarily anchors its standing on its alleged maintenance of peace and order and promotion of the general
responsibility to uphold the rule of law and the Constitution. Apart welfare.20 For one, the realities on the ground do not show that there
from this declaration, however, the IBP asserts no other basis in exist a state of warfare, widespread civil unrest or anarchy. Secondly,
support of its locus standi. The mere invocation by the IBP of its duty the full brunt of the military is not brought upon the citizenry, a point
to preserve the rule of law and nothing more, while undoubtedly true, discussed in the latter part of this decision. In the words of the late
is not sufficient to clothe it with standing in this case. This is too Justice Irene Cortes in Marcos v. Manglapus:
general an interest which is shared by other groups and the whole
citizenry. Based on the standards above-stated, the IBP has failed to More particularly, this case calls for the exercise of the President’s
present a specific and substantial interest in the resolution of the case. powers as protector of the peace. [Rossiter, The American Presidency].
Its fundamental purpose which, under Section 2, Rule 139-A of the The power of the President to keep the peace is not limited merely to
Rules of Court, is to elevate the standards of the law profession and to exercising the commander-in-chief powers in times of emergency or to
improve the administration of justice is alien to, and cannot be leading the State against external and internal threats to its existence.
affected by the deployment of the Marines. It should also be noted The President is not only clothed with extraordinary powers in times of
that the interest of the National President of the IBP who signed the emergency, but is also tasked with attending to the day-to-day
petition, is his alone, absent a formal board resolution authorizing him
problems of maintaining peace and order and ensuring domestic delegated. But while this Court has no power to substitute its
tranquility in times when no foreign foe appears on the horizon. Wide judgment for that of Congress or of the President, it may look into the
discretion, within the bounds of law, in fulfilling presidential duties in question of whether such exercise has been made in grave abuse of
times of peace is not in any way diminished by the relative want of an discretion.30 A showing that plenary power is granted either
emergency specified in the commander-in-chief provision. For in department of government, may not be an obstacle to judicial inquiry,
making the President commander-in-chief the enumeration of powers for the improvident exercise or abuse thereof may give rise to
that follow cannot be said to exclude the President’s exercising as justiciable controversy.31
Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring
When the President calls the armed forces to prevent or suppress
martial law, in order to keep the peace, and maintain public order and
lawless violence, invasion or rebellion, he necessarily exercises a
security.
discretionary power solely vested in his wisdom. This is clear from the
intent of the framers and from the text of the Constitution itself. The
xxx21 Court, thus, cannot be called upon to overrule the President’s wisdom
or substitute its own. However, this does not prevent an examination
of whether such power was exercised within permissible constitutional
Nonetheless, even if it is conceded that the power involved is the
limits or whether it was exercised in a manner constituting grave
President’s power to call out the armed forces to prevent or suppress
abuse of discretion. In view of the constitutional intent to give the
lawless violence, invasion or rebellion, the resolution of the
President full discretionary power to determine the necessity of calling
controversy will reach a similar result.
out the armed forces, it is incumbent upon the petitioner to show that
the President’s decision is totally bereft of factual basis. The present
We now address the Solicitor General’s argument that the issue petition fails to discharge such heavy burden as there is no evidence to
involved is not susceptible to review by the judiciary because it support the assertion that there exist no justification for calling out the
involves a political question, and thus, not justiciable. armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call
As a general proposition, a controversy is justiciable if it refers to a was exercised in such a manner as to violate the constitutional
matter which is appropriate for court review. 22 It pertains to issues provision on civilian supremacy over the military. In the performance
which are inherently susceptible of being decided on grounds of this Court’s duty of "purposeful hesitation"32 before declaring an act
recognized by law. Nevertheless, the Court does not automatically of another branch as unconstitutional, only where such grave abuse of
assume jurisdiction over actual constitutional cases brought before it discretion is clearly shown shall the Court interfere with the President’s
even in instances that are ripe for resolution. One class of cases judgment. To doubt is to sustain.
wherein the Court hesitates to rule on are "political questions." The
reason is that political questions are concerned with issues dependent There is a clear textual commitment under the Constitution to bestow
upon the wisdom, not the legality, of a particular act or measure being on the President full discretionary power to call out the armed forces
assailed. Moreover, the political question being a function of the and to determine the necessity for the exercise of such power. Section
separation of powers, the courts will not normally interfere with the 18, Article VII of the Constitution, which embodies the powers of the
workings of another co-equal branch unless the case shows a clear President as Commander-in-Chief, provides in part:
need for the courts to step in to uphold the law and the Constitution.
The President shall be the Commander-in-Chief of all armed forces of
As Tañada v. Cuenco23 puts it, political questions refer "to those the Philippines and whenever it becomes necessary, he may call out
questions which, under the Constitution, are to be decided by the such armed forces to prevent or suppress lawless violence, invasion or
people in their sovereign capacity, or in regard to which full rebellion. In case of invasion or rebellion, when the public safety
discretionary authority has been delegated to the legislative or requires it, he may, for a period not exceeding sixty days, suspend the
executive branch of government." Thus, if an issue is clearly identified privilege of the writ of habeas corpus, or place the Philippines or any
by the text of the Constitution as matters for discretionary action by a part thereof under martial law.
particular branch of government or to the people themselves then it is
held to be a political question. In the classic formulation of Justice
xxx
Brennan in Baker v. Carr,24 "[p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political The full discretionary power of the President to determine the factual
department; or a lack of judicially discoverable and manageable basis for the exercise of the calling out power is also implied and
standards for resolving it; or the impossibility of deciding without an further reinforced in the rest of Section 18, Article VII which reads,
initial policy determination of a kind clearly for nonjudicial discretion; thus:
or the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
xxx
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarassment
from multifarious pronouncements by various departments on the one Within forty-eight hours from the proclamation of martial law or the
question." 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
The 1987 Constitution expands the concept of judicial review by
Members in regular or special session, may revoke such proclamation
providing that "(T)he Judicial power shall be vested in one Supreme
or suspension, which revocation shall not be set aside by the
Court and in such lower courts as may be established by law. Judicial
President. Upon the initiative of the President, the Congress may, in
power includes the duty of the courts of justice to settle actual
the same manner, extend such proclamation or suspension for a
controversies involving rights which are legally demandable and
period to be determined by the Congress, if the invasion or rebellion
enforceable, and to determine whether or not there has been a grave
shall persist and public safety requires it.
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." 25 Under this
definition, the Court cannot agree with the Solicitor General that the The Congress, if not in session, shall within twenty-four hours
issue involved is a political question beyond the jurisdiction of this following such proclamation or suspension, convene in accordance
Court to review. When the grant of power is qualified, conditional or with its rules without need of a call.
subject to limitations, the issue of whether the prescribed qualifications
or conditions have been met or the limitations respected, is justiciable The Supreme Court may review, in an appropriate proceeding filed by
- the problem being one of legality or validity, not its any citizen, the sufficiency of the factual basis of the proclamation of
wisdom.26 Moreover, the jurisdiction to delimit constitutional martial law or the suspension of the privilege of the writ or the
boundaries has been given to this Court.27 When political questions are extension thereof, and must promulgate its decision thereon within
involved, the Constitution limits the determination as to whether or not thirty days from its filing.
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned.28 A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
By grave abuse of discretion is meant simply capricious or whimsical military courts and agencies over civilians where civil courts are able to
exercise of judgment that is patent and gross as to amount to an function, nor automatically suspend the privilege of the writ.
evasion of positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or The suspension of the privilege of the writ shall apply only to persons
hostility.29 Under this definition, a court is without power to directly judicially charged for rebellion or offenses inherent in or directly
decide matters over which full discretionary authority has been connected with invasion.
During the suspension of the privilege of the writ, any person thus for the courts. Certain pertinent information might be difficult to verify,
arrested or detained shall be judicially charged within three days, or wholly unavailable to the courts. In many instances, the evidence
otherwise he shall be released. upon which the President might decide that there is a need to call out
the armed forces may be of a nature not constituting technical proof.
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the sufficiency On the other hand, the President as Commander-in-Chief has a vast
of the factual basis thereof. However, there is no such equivalent intelligence network to gather information, some of which may be
provision dealing with the revocation or review of the President’s classified as highly confidential or affecting the security of the state. In
action to call out the armed forces. The distinction places the calling the exercise of the power to call, on-the-spot decisions may be
out power in a different category from the power to declare martial imperatively necessary in emergency situations to avert great loss of
law and the power to suspend the privilege of the writ of habeas human lives and mass destruction of property. Indeed, the decision to
corpus, otherwise, the framers of the Constitution would have simply call out the military to prevent or suppress lawless violence must be
lumped together the three powers and provided for their revocation done swiftly and decisively if it were to have any effect at all. Such a
and review without any qualification. Expressio unius est exclusio scenario is not farfetched when we consider the present situation in
alterius. Where the terms are expressly limited to certain matters, it Mindanao, where the insurgency problem could spill over the other
may not, by interpretation or construction, be extended to other parts of the country. The determination of the necessity for the calling
matters.33 That the intent of the Constitution is exactly what its letter out power if subjected to unfettered judicial scrutiny could be a
says, i.e., that the power to call is fully discretionary to the President, veritable prescription for disaster, as such power may be unduly
is extant in the deliberation of the Constitutional Commission, to wit: straitjacketed by an injunction or a temporary restraining order every
time it is exercised.
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he Thus, it is the unclouded intent of the Constitution to vest upon the
can call out such Armed Forces as may be necessary to suppress President, as Commander-in-Chief of the Armed Forces, full discretion
lawless violence; then he can suspend the privilege of the writ to call forth the military when in his judgment it is necessary to do so
of habeas corpus, then he can impose martial law. This is a graduated in order to prevent or suppress lawless violence, invasion or rebellion.
sequence. Unless the petitioner can show that the exercise of such discretion was
gravely abused, the President’s exercise of judgment deserves to be
accorded respect from this Court.
When he judges that it is necessary to impose martial law or suspend
the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and The President has already determined the necessity and factual basis
subject to concurrence by the National Assembly. But when he for calling the armed forces. In his Memorandum, he categorically
exercises this lesser power of calling on the Armed Forces, when he asserted that, "[V]iolent crimes like bank/store robberies, holdups,
says it is necessary, it is my opinion that his judgment cannot be kidnappings and carnappings continue to occur in Metro Manila..." 35 We
reviewed by anybody. do not doubt the veracity of the President’s assessment of the
situation, especially in the light of present developments. The Court
takes judicial notice of the recent bombings perpetrated by lawless
xxx
elements in the shopping malls, public utilities, and other public places.
These are among the areas of deployment described in the LOI 2000.
FR. BERNAS. Let me just add that when we only have imminent Considering all these facts, we hold that the President has sufficient
danger, the matter can be handled by the first sentence: "The factual basis to call for military aid in law enforcement and in the
President may call out such armed forces to prevent or suppress exercise of this constitutional power.
lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger.
The deployment of the Marines does not violate the civilian supremacy
clause nor does it infringe the civilian character of the police force.
MR. DE LOS REYES. So actually, if a President feels that there is
imminent danger, the matter can be handled by the First Sentence:
Prescinding from its argument that no emergency situation exists to
"The President....may call out such Armed Forces to prevent or
justify the calling of the Marines, the IBP asserts that by the
suppress lawless violence, invasion or rebellion." So we feel that that is
deployment of the Marines, the civilian task of law enforcement is
sufficient for handling imminent danger, of invasion or rebellion,
"militarized" in violation of Section 3, Article II36 of the Constitution.
instead of imposing martial law or suspending the writ of habeas
corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea? We disagree. The deployment of the Marines does not constitute a
breach of the civilian supremacy clause. The calling of the Marines in
this case constitutes permissible use of military assets for civilian law
MR. REGALADO. That does not require any concurrence by the
enforcement. The participation of the Marines in the conduct of joint
legislature nor is it subject to judicial review.34
visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which
The reason for the difference in the treatment of the aforementioned sufficiently provides the metes and bounds of the Marines’ authority. It
powers highlights the intent to grant the President the widest leeway is noteworthy that the local police forces are the ones in charge of the
and broadest discretion in using the power to call out because it is visibility patrols at all times, the real authority belonging to the PNP. In
considered as the lesser and more benign power compared to the fact, the Metro Manila Police Chief is the overall leader of the PNP-
power to suspend the privilege of the writ of habeas corpus  and the Philippine Marines joint visibility patrols.37 Under the LOI, the police
power to impose martial law, both of which involve the curtailment and forces are tasked to brief or orient the soldiers on police patrol
suppression of certain basic civil rights and individual freedoms, and procedures.38 It is their responsibility to direct and manage the
thus necessitating safeguards by Congress and review by this Court. deployment of the Marines.39 It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to
Moreover, under Section 18, Article VII of the Constitution, in the these soldiers.40 In view of the foregoing, it cannot be properly argued
exercise of the power to suspend the privilege of the writ of habeas that military authority is supreme over civilian authority. Moreover, the
corpus or to impose martial law, two conditions must concur: (1) there deployment of the Marines to assist the PNP does not unmake the
must be an actual invasion or rebellion and, (2) public safety must civilian character of the police force. Neither does it amount to an
require it. These conditions are not required in the case of the power "insidious incursion" of the military in the task of law enforcement in
to call out the armed forces. The only criterion is that "whenever it violation of Section 5(4), Article XVI of the Constitution.41
becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." The In this regard, it is not correct to say that General Angelo Reyes, Chief
implication is that the President is given full discretion and wide of Staff of the AFP, by his alleged involvement in civilian law
latitude in the exercise of the power to call as compared to the two enforcement, has been virtually appointed to a civilian post in
other powers. derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian
If the petitioner fails, by way of proof, to support the assertion that the institution, the PNP, and not with the military. Such being the case, it
President acted without factual basis, then this Court cannot undertake does not matter whether the AFP Chief actually participates in the Task
an independent investigation beyond the pleadings. The factual Force Tulungan  since he does not exercise any authority or control
necessity of calling out the armed forces is not easily quantifiable and over the same. Since none of the Marines was incorporated or enlisted
cannot be objectively established since matters considered for as members of the PNP, there can be no appointment to civilian
satisfying the same is a combination of several factors which are not position to speak of. Hence, the deployment of the Marines in the joint
always accessible to the courts. Besides the absence of textual visibility patrols does not destroy the civilian character of the PNP.
standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable
Considering the above circumstances, the Marines render nothing To determine whether there is a violation of the Posse Comitatus Act in
more than assistance required in conducting the patrols. As such, the use of military personnel, the US courts63 apply the following
there can be no "insidious incursion" of the military in civilian affairs standards, to wit:
nor can there be a violation of the civilian supremacy clause in the
Constitution.
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
It is worth mentioning that military assistance to civilian authorities in subjected the citizens to the exercise of military power which was
various forms persists in Philippine jurisdiction. The Philippine regulatory, proscriptive, or compulsory 64 George Washington Law
experience reveals that it is not averse to requesting the assistance of Review, pp. 404-433 (1986), which discusses the four divergent
the military in the implementation and execution of certain traditionally standards for assessing acceptable involvement of military personnel in
"civil" functions. As correctly pointed out by the Solicitor General, some civil law enforcement. See likewise HONORED IN THE BREECH:
of the multifarious activities wherein military aid has been rendered, PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY
exemplifying the activities that bring both the civilian and the military FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either
together in a relationship of cooperation, are: presently or prospectively?

1. Elections;42 xxx

2. Administration of the Philippine National Red Cross; 43 When this concept is transplanted into the present legal context, we
take it to mean that military involvement, even when not expressly
authorized by the Constitution or a statute, does not violate the Posse
3. Relief and rescue operations during calamities and
Comitatus Act unless it actually regulates, forbids or compels some
disasters;44
conduct on the part of those claiming relief.1âwphi1 A mere threat of
some future injury would be insufficient. (emphasis supplied)
4. Amateur sports promotion and development;45
Even if the Court were to apply the above rigid standards to the
5. Development of the culture and the arts;46 present case to determine whether there is permissible use of the
military in civilian law enforcement, the conclusion is inevitable that no
6. Conservation of natural resources;47 violation of the civilian supremacy clause in the Constitution is
committed. On this point, the Court agrees with the observation of the
Solicitor General:
7. Implementation of the agrarian reform program; 48
3. The designation of tasks in Annex A65 does not constitute the
8. Enforcement of customs laws;49 exercise of regulatory, proscriptive, or compulsory military power.
First, the soldiers do not control or direct the operation. This is evident
9. Composite civilian-military law enforcement activities; 50 from Nos. 6,66 8(k)67 and 9(a)68 of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all
arrested persons are brought to the nearest police stations for proper
10. Conduct of licensure examinations;51 disposition. And last, these soldiers apply no coercive force. The
materials or equipment issued to them, as shown in No. 8(c) 70 of
11. Conduct of nationwide tests for elementary and high Annex A, are all low impact and defensive in character. The conclusion
school students;52 is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine
Marines constitutes no impermissible use of military power for civilian
12. Anti-drug enforcement activities;53 law enforcement.71

13. Sanitary inspections;54 It appears that the present petition is anchored on fear that once the
armed forces are deployed, the military will gain ascendancy, and thus
14. Conduct of census work;55 place in peril our cherished liberties. Such apprehensions, however, are
unfounded. The power to call the armed forces is just that - calling out
the armed forces. Unless, petitioner IBP can show, which it has not,
15. Administration of the Civil Aeronautics Board; 56
that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil
16. Assistance in installation of weather forecasting liberties of the people, this Court is not inclined to overrule the
devices;57 President’s determination of the factual basis for the calling of the
Marines to prevent or suppress lawless violence.
17. Peace and order policy formulation in local government
units.58 One last point. Since the institution of the joint visibility patrol in
January, 2000, not a single citizen has complained that his political or
This unquestionably constitutes a gloss on executive power resulting civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil
from a systematic, unbroken, executive practice, long pursued to the
knowledge of Congress and, yet, never before questioned. 59 What we liberties of the people that the joint visibility patrol was conceived.
Freedom and democracy will be in full bloom only when people feel
have here is mutual support and cooperation between the military and
civilian authorities, not derogation of civilian supremacy. secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.

In the United States, where a long tradition of suspicion and hostility

towards the use of military force for domestic purposes has WHEREFORE, premises considered, the petition is hereby
DISMISSED.
persisted,60 and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by civilian
law enforcement officers is allowed under circumstances similar to SO ORDERED.
those surrounding the present deployment of the Philippine Marines.
Under the Posse Comitatus Act61 of the US, the use of the military in
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes,
civilian law enforcement is generally prohibited, except in certain
Ynares-Santiago, and De Leon, Jr., JJ., concur.
allowable circumstances. A provision of the Act states:
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
§ 1385. Use of Army and Air Force as posse comitatus Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses any Quisumbing, J., joins the opinion of J. Mendoza.
part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or imprisoned
not more than two years, or both.62
Footnotes 26 
Santiago  v.  Guingona, Jr., 298 SCRA 756 (1998).

1 
Rollo, pp. 17-21. 27 
Bengzon, Jr. v.  Senate Blue Ribbon Committee, 203 SCRA 767 (1991).

2 
As of 19 May 2000, the Marines have been recalled from their areas of Marcos v.  Manglapus,,  supra note 21, see  also Daza  v.  Singson, 180 SCRA
28 

deployment to join the military operations in Mindanao, and replaced by Air 496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990).
Force personnel who took over their functions in the joint visibility patrols. The
Air Force personnel, just like the Marines, were ordered to assist the PNP, also by
virtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed Sinon  v.  Civil Service Commission, 215 SCRA 410 (1992); See   also Producers
29 

Forces, the controversy has not been rendered moot and academic by the Bank  v.  NLRC, 165 SCRA 284 (1988); Litton Mills  v.  Galleon Trader, Inc.,  163
replacement of the former by the latter. The validity of the deployment of the SCRA 494 (1988).
armed forces in the joint visibility patrols thus remain an issue.
30 
Ledesma v.  Court of Appeals, 278 SCRA 659 (1997).
3 
Rollo, pp. 75-76.
31 
Bondoc  v.  Pineda, 201 SCRA 792 (1991).
4 
Id.,  at 75.
32 
Drilon  v.  Lim, 235 SCRA 135 (1994).
5 
Id.
33 
Sarmiento  v.  Mison, 156 SCRA 549 (1987).
6 
Id.
34 
II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND
7 
Rollo,  p. 75. DEBATES, pp. 409, 412 (1986).

8 
Id., at 17-18. 35 
Rollo, p. 75.

36 
9 
Id. Section 3, provides:

10 
Rollo, p. 7. Civilian authority, is at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and
the State. Its goal is to secure the sovereignty of the State and the
11 
Id., at 24. integrity of the national territory.

Philippine Constitution Association  v.  Enriquez, 235 SCRA 506 (1994)

12  37 
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
citing  Luz  Farms  v.  Secretary of the  Department of Agrarian Reform, 192 SCRA
51 (1990); Dumlao  v.  Commission on Elections, 95 SCRA 392 (1980); and,
People  v. Vera, 65 Phil. 56 (1937). a. RD, NCRPO is designated as Task Force Commander
"TULUNGAN".

Joya  v.  Presidential Commission on Good Govenment, 225 SCRA 568, 576
13 
38 
(1993). No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-
PHILIPPINE MARINES:

Ibid., citing  House International Building Tenants Association, Inc .

14 

v.  Intermediate Appellate Court, 151 SCRA 703 (1987). b. Before their deployment/employment, receiving units shall
properly brief/orient the troops on police patrol/visibility
procedures.
15 
Baker  v.  Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
39 
No. 8 of the LOI provides: TASKS:
Joya v.  Presidential  Commission  on  Good  Government, supra note 13, at
16 

579 citing  Dumlao  v.  Commission on  Elections, 95 SCRA 392 (1980).

k. POLICE DISTRICTS/STATIONS

Tatad  v.  Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)
17 

citing  Garcia  v.  Executive  Secretary, 211 SCRA 219 (1992); -Provide direction and manage the deployment of all Philippine
Osmeña  v.  COMELEC, 199 SCRA 750 (1991); Basco  v.  Pagcor,  197 SCRA 52 Marines personnel deployed in your AOR for police visibility
(1991); and, Araneta  v.  Dinglasan,   84 Phil. 368 (1949). operations.

Santiago  v.  COMELEC, 270 SCRA 106 (1997); Joya  v.  Presidential Commission
18 
-Conduct briefing/orientation to Philippine Marines’ personnel on
on Good Government,  225 SCRA 568 (1993);  Daza  v.  Singson, 180 SCRA 496 the do’s and don’ts of police visibility patrols.
(1989). As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in
Kilosbayan, Inc. vs.  Guingona,   Jr., [232 SCRA 110 (1994)] "(a) party's standing
before this Court is a procedural technicality which it may, in the exercise of its -Provide transportation to Philippine Marines from districts
discretion, set aside in view of the importance of the issues raised," favorably headquarters to different stations and PCPs.
citing our ruling in the Emergency Powers Cases [L-2044 (Araneta   v.  Dinglasan);
L-2756 (Araneta  v.  Angeles); L-3054 (Rodriquez  v.  Tesorero de Filipinas); and
L-3056 (Barredo  v.  COMELEC), 84 Phil. 368 (1940)] where this Court brushed -Perform other tasks as directed.
aside this technicality because "the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing 40 
aside, if we must, technical rules of procedure." An inflexible rule on locus No. 8 of the LOI states: TASKS:
standi would result in what Mr. Justice Florentino P. Feliciano aptly described as
a "doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan,
Inc.  v.  Morato, 250 SCRA 130 (1995)]. c. RLD/R4

19 
Rollo, p. 12 -Coordinate with the Directorate for Logistics for the issuance of
the following equipments (sic) to be utilize (sic) by the Philippine
Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500
20 
Article II, Sections 4 and 5 of the Constitution provide: pieces brazzard blazoned.

Sec. 4. The prime duty of the Government is to serve and protect -Coordinate with the Directorate for Logistics for the issuance of
the people. The Government may call upon the people to defend the following for use of PNP personnel involved in the visibility
the State and, in the fulfillment thereof, all citizens may be patrol operations:
required, under conditions provided by law, to render personal,
military or civil service.
1,000 sets of PNP GOA Uniform

Sec. 5. The maintenance of peace and order, the protection of life,

liberty, and property, and the promotion of the general welfare are 500 each raincoats
essential for the enjoyment by all the people of the blessings of
democracy.
500 each Probaton

21 
177 SCRA 668, 694 (1989).
500 each Whistle

22 
WEST’S LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440
500 each handcuffs
(1986).

23  500 each Combat Boots

103 Phil. 1051 (1957).

24  500 each low cut shoes

369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).

25  -Provide transportation to the Philippine Marines personnel in

Article VIII, Sec. 1 of the 1987 CONSTITUTION.
coordination with LSS, NHQ PNP.
 -Provide additional gas allocation to Philippine Marines’ members of 54 
Republic Act No. 4089 (1964), which is entitled "An Act Making the City Health
the Inspection Teams. Officer of Bacolod City the Local Civil Registrar, Amending for the Purpose
Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950),
which is entitled "An Act to Revise the Charter of Quezon City;" Commonwealth
- Perform other tasks as directed.40 Act No. 592 (1940), which is entitled "An Act to Create the City of Dansalan;"
Commonwealth Act No. 509 (1939), which is entitled "An Act to Create Quezon
City;" Commonwealth Act No. 326 (1938), which is entitled "An Act Creating the
41 
Sec. 5(4), Article XVI, provides: City of Bacolod;" Commonwealth Act No. 39 (1936), which is entitled "An Act
Creating the City of Zamboanga;" Commonwealth Act No. 51 (1936), which is
entitled "An Act Creating the City of Davao."
No member of the Armed Forces in the active service shall, at any
time, be appointed in the government including government-owned
and controlled corporations or any of their subsidiaries. 55 
Republic Act No. 36 (1946), which is entitled "Census Act of Nineteen Hundred
and Forty-Six."
42 
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999),
which is entitled "In Re Guidelines for the Designation of Registration Centers 56 
Republic Act No. 776 (1952), Section 5, which is entitled "An Act to Reorganize
and the Accountable Officers for the Polaroid Instant Cameras for Purposes of the Civil Aeronautics Board and the Civil Aeronautics Administration, To Provide
the Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim for the Regulation of Civil Aeronautics in the Philippines and Authorizing the
Mindanao;" Comelec Resolution No. 3059 (1999), which is entitled, "In the Appropriation of Funds Therefor."
Matter of Deputizing the Armed Forces of the Philippines and the Three (3) AFP
Components, Namely: Philippine Army, Philippine Navy and Philippine Air Force,
for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, 57 
Republic Act No. 6613 (1972), Section 4, which is entitled "An Act Declaring a
Registration of Voters and the Holding of the September 13, 1999 Elections in Policy of the State to Adopt Modern Scientific Methods to Moderate Typhoons
the Autonomous Region in Muslim Mindanao (ARMM);" Republic Act No. 7166 and Prevent Destruction by Floods, Rains and Droughts, Creating a Council on
(1991), Section 33, which is entitled "An Act Providing for Synchronized National Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a
and Local Elections and for Electoral Reforms, Authorizing Appropriations Council on Typhoon Moderation and Flood Control Research and Development,
therefor, and for other Purposes;" Administrative Code of 1987, Book V, Title I, Providing for its Powers and Functions and Appropriating Funds Therefor."
Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI,
Sections 52 (b) and 57 (3) (1985), which is also known as "Omnibus Election
Code." 58 
Local Government Code of 1991, Book I, Title Seven, Section 116.

43 
Republic Act No. 95 (1947), Section 5, which is entitled "An Act to Incorporate 59 
This theory on gloss of executive power was advanced by Justice Frankfurter in
the Philippine National Red Cross Section;" Republic Act No. 855 (1953), Section his concurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579,
1, which is entitled "An Act to Amend Section V of Republic Act Numbered 610-611 (1952).
Ninety-Five, entitled "An Act to Incorporate the Philippine National Red Cross."
60 
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
44 
Republic Act No. 7077 (1991), Article III, Section 7, which is entitled "An Act
Providing for the Development, Administration, Organization, Training,
61 
Maintenance and Utilization of the Citizen Armed Forces of the Armed Forces of 18 U.S.C.A § 1385 (1878).
the Philippines and for other Purposes."
62 
Ibid.
45 
Republic Act No. 6847 (1990), Section 7, which is entitled "An Act Creating and
Establishing The Philippine Sports Commission, Defining its Powers, Functions
and Responsibilities, Appropriating Funds therefor, and for other Purposes."
63 
Bissonette v. Haig, supra note 60, at 1390.

46 
Republic Act No. 8492 (1998), Section 20, which is entitled "An Act Establishing A power regulatory in nature is one which controls or directs. It
64 

a National Museum System, Providing for its Permanent Home and for other is proscriptive if it prohibits or condemns and compulsory  if it exerts some
Purposes." coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See  also
FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS ON
MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,
47 
Republic Act No. 8550 (1998), Section 124, which is entitled "An Act Providing
for the Development, Management and Conservation of the Fisheries and Aquatic
Resources, Integrating All Laws Pertinent Thereto, and for other Purposes;"
65 
L.O.I. 02/2000, "TULUNGAN," Rollo, pp. 17-22.
Memorandum Circular No. 150 (1996), which is entitled "Amending
Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the
66 
Presidential Task Force on Tubbataha Reef National Marine Park;" Executive No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-
Order No. 544 (1979), Letter I, which is entitled "Creating a Presidential PHILIPPINE MARINES:
Committee for the Conservation of the Tamaraw, Defining its Powers and for
other Purposes."
a. The PNP NCPRO thru Police Districts will continue to deploy
uniformed PNP personnel dedicated for police visibility patrols in
48 
Executive Order No. 129-A (1987) Section 5 (m), which is entitled "Modifying tandem with the Philippine Marines.
Executive Order No. 129 Reorganizing and Strengthening the Department of
Agrarian Reform and for other Purposes."
b. Before their deployment/employment, receiving units shall
properly brief/orient the troops on police patrol/visibility
49 
Republic Act No. 1937 (1957), Section 2003, which is entitled "An Act to procedures.66
Revised and Codify the Tariff and Customs Laws of the Philippines;" Executive
Order No. 45 (1998), which is entitled "Creating a Presidential Anti-Smuggling
Task Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling
67 
Supra  note 34.
and other Frauds upon Customs and Providing Measures to Expedite Seizure
Proceedings;" 68 
Supra  note 32.

50 
These cases involved joint military and civilian law enforcement 69 
operations: People v. Escalante , G.R No. 106633, December 1, 1994; People v. No. 9 of the LOI states:
Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz,  G.R. No.
83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This
d. In case of apprehensions, arrested person/s shall be brought to
case recognizes the complementary roles of the PNP and the military in
the nearest police stations/PCPs.
conducting anti-crime campaigns, provided that the people’s rights are not
violated in these words: "If the military and the police must conduct concerted
campaigns to flush out and catch criminal elements, such drives must be 70 
Supra  note 35.
consistent with the constitutional and statutory rights of all people affected by
such actions." The creation of the Task Force also finds support in Valmonte v.
de Villa, 185 SCRA 665 (1990). Executive Order No. 62 (1999), which is entitled 71 
Rollo, p. 70.
"Creating the Philippine Center on Transnational Crime to Formulate and
Implement a Concerted Program of Action of All Law Enforcement, Intelligence
and other Agencies for the Prevention and Control of Transnational Crime;"
Executive Order No. 8 (1998), which is entitled "Creating a Presidential Anti- The Lawphil Project - Arellano Law Foundation
Organized Crime Commission and a Presidential Anti-Organized Crime Task
Force, to Investigate and Prosecute Criminal Elements in the Country;" Executive
Order No. 280 (1995), which is entitled "Creating a Presidential Task Force of
Intelligence and Counter-Intelligence to Identify, Arrest and Cause the
Investigation and Prosecution of Military and other Law Enforcement Personnel
on their Former Members and Their Cohorts Involved in Criminal Activities."

51 
Memorandum Circular No. 141 (1996), which is entitled "Enjoining Government SEPARATE OPINION
Agencies Concerned to Extend Optimum Support and Assistance to the
Professional Regulation Commission in its Conduct of Licensure Examinations."
PUNO, J.:
52 
Memorandum Circular No. 32 (1999), which is entitled "Directing the
Government Agencies Concerned to Extend Maximum Support and Assistance to If the case at bar is significant, it is because of the government
the National Educational Testing and Research Center (NETRC) of the
Department of Education, Culture and Sports (DECS) in the Conduct of Tests of attempt to foist the political question doctrine to shield an
National Coverage." executive act done in the exercise of the commander-in-chief powers
from judicial scrutiny. If the attempt succeeded, it would have
53 
Executive Order No. 61 (1999), which is entitled "Creating the National Drug diminished the power of judicial review and weakened the
Law Enforcement and Prevention Coordinating Center to Orchestrate Efforts of checking authority of this Court over the Chief Executive when
national Government Agencies, Local Government Units, and Non-Government he exercises his commander-in-chief powers. The attempt
Organizations for a More Effective Anti-Drug Campaign."
should remind us of the tragedy that befell the country when
this Court sought refuge in the political question doctrine and
forfeited its most important role as protector of the civil and contending that only the Electoral Tribunal had jurisdiction over
political rights of our people. The ongoing conflict in Mindanao contests relating to their election, returns and qualifications. Again, the
may worsen and can force the Chief Executive to resort to the Court refused to intervene citing Alejandrino and affirmed the
use of his greater commander-in-chief powers, hence, this inherent right of the legislature to determine who shall be admitted to
Court should be extra cautious in assaying similar attempts. A its membership.
laid back posture may not sit well with our people considering
that the 1987 Constitution strengthened the checking powers
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and
of this Court and expanded its jurisdiction precisely to stop
eight representatives who were proclaimed elected by Comelec were
any act constituting "xxx grave abuse of jurisdiction xxx on
not allowed by Congress to take part in the voting for the passage of
the part of any branch or instrumentality of the Government." 1
the Parity amendment to the Constitution. If their votes had been
counted, the affirmative votes in favor of the proposed amendment
The importance of the issue at bar includes this humble separate would have been short of the necessary three-fourths vote in either
opinion. We can best perceive the different intersecting dimensions of House of Congress to pass the amendment. The amendment was
the political question doctrine by viewing them from the broader eventually submitted to the people for ratification. The Court declined
canvass of history. Political questions are defined as "those questions to intervene and held that a proposal to amend the Constitution is a
which under the Constitution, are to be decided by the people in their highly political function performed by Congress in its sovereign
sovereign capacity, or in regard to which full discretionary authority legislative capacity.15
has been delegated to the legislative or executive branch of
government."2 They have two aspects: (1) those matters that are to be
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private
exercised by the people in their primary political capacity and (2)
citizen, assailed the legality of his detention ordered by the Senate for
matters which have been specifically delegated to some other
his refusal to answer questions put to him by members of one of its
department or particular office of the government, with discretionary
investigating committees. This Court refused to order his release
power to act.3 The exercise of the discretionary power of the legislative
holding that the process by which a contumacious witness is dealt with
or executive branch of government was often the area where the
by the legislature is a necessary concomitant of the legislative process
Court had to wrestle with the political question doctrine. 4
and the legislature's exercise of its discretionary authority is not
subject to judicial interference.
A brief review of some of our case law will thus give us a sharper
perspective of the political question doctrine. This question confronted
In the 1960 case of Osmena v. Pendatun,17 the Court followed the
the Court as early as 1905 in the case of Barcelon v. Baker.5 The
traditional line. Congressman Sergio Osmena, Jr. was suspended by
Governor-General of the Philippine Islands, pursuant to a resolution of
the House of Representatives for serious disorderly behavior for
the Philippine Commission, suspended the privilege of the writ of
making a privilege speech imputing "malicious charges" against the
habeas corpus in Cavite and Batangas based on a finding of open
President of the Philippines. Osmena, Jr. invoked the power of review
insurrection in said provinces. Felix Barcelon, who was detained by
of this Court but the Court once more did not interfere with Congress'
constabulary officers in Batangas, filed a petition for the issuance of a
power to discipline its members.
writ of habeas corpus alleging that there was no open insurrection in
Batangas. The issue to resolve was whether or not the judicial
department may investigate the facts upon which the legislative (the The contours of the political question doctrine have always been tricky.
Philippine Commission) and executive (the Governor-General) To be sure, the Court did not always stay its hand whenever the
branches of government acted in suspending the privilege of the writ. doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate
President Jose Avelino, who was deposed and replaced, questioned his
successor's title claiming that the latter had been elected without a
The Court ruled that under our form of government, one department
quorum. The petition was initially dismissed on the ground that the
has no authority to inquire into the acts of another, which acts are
selection of Senate President was an internal matter and not subject to
performed within the discretion of the other department.6 Surveying
judicial review.19 On reconsideration, however, the Court ruled that it
American law and jurisprudence, it held that whenever a statute gives
could assume jurisdiction over the controversy in light of subsequent
discretionary power to any person, to be exercised by him upon his
events justifying intervention among which was the existence of a
own opinion of certain facts, the statute constitutes him the sole
quorum.20 Though the petition was ultimately dismissed, the Court
judge of the existence of those facts.7 Since the Philippine Bill of 1902
declared respondent Cuenco as the legally elected Senate President.
empowered the Philippine Commission and the Governor-General to
suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive In the 1957 case of Tanada v. Cuenco,21 the Court assumed
branches of government. The exercise of this discretion is jurisdiction over a dispute involving the formation and composition of
conclusive upon the courts.8 the Senate Electoral Tribunal. It rejected the Solicitor General's claim
that the dispute involved a political question. Instead, it declared that
the Senate is not clothed with "full discretionary authority" in the
The Court further held that once a determination is made by the
choice of members of the Senate Electoral Tribunal and the exercise of
executive and legislative departments that the conditions justifying the
its power thereon is subject to constitutional limitations which are
assailed acts exists, it will presume that the conditions continue until
mandatory in nature.22 It held that under the Constitution, the
the same authority decide that they no longer exist.9 It adopted
membership of the Senate Electoral Tribunal was designed to insure
the rationale that the executive branch, thru its civil and military
the exercise of judicial impartiality in the disposition of election
branches, are better situated to obtain information about peace and
contests affecting members of the lawmaking body. 23 The Court then
order from every corner of the nation, in contrast with the judicial
nullified the election to the Senate Electoral Tribunal made by Senators
department, with its very limited machinery.10 The seed of the
belonging to the party having the largest number of votes of two of
political question doctrine was thus planted in Philippine soil.
their party members but purporting to act on behalf of the party
having the second highest number of votes.
The doctrine barring judicial review because of the political
question doctrine was next applied to the internal affairs of
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed
the legislature. The Court refused to interfere in the legislative
judgment on whether Congress had formed the Commission on
exercise of disciplinary power over its own members. In the 1924 case
Appointments in accordance with the Constitution and found that it did
of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator
not. It declared that the Commission on Appointments is a creature of
by the Governor-General, was declared by Senate Resolution as guilty
the Constitution and its power does not come from Congress but from
of disorderly conduct for assaulting another Senator in the course of a
the Constitution.
debate, and was suspended from office for one year. Senator
Alejandrino filed a petition for mandamus and injunction to compel the
Senate to reinstate him. The Court held that under the Jones Law, the The 1967 case of Gonzales v. Comelec25 and the 1971 case
power of the Senate to punish its members for disorderly behavior of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-
does not authorize it to suspend an appointive member from the Vito. The question of whether or not Congress, acting as a constituent
exercise of his office. While the Court found that the suspension was assembly in proposing amendments to the Constitution violates the
illegal, it refused to issue the writ of mandamus on the ground that Constitution was held to be a justiciable and not a political issue.
"the Supreme Court does not possess the power of coercion to make In Gonzales, the Court ruled:
the Philippine Senate take any particular action. [T]he Philippine
Legislature or any branch thereof cannot be directly controlled in the "It is true that in Mabanag v. Lopez-Vito,  this Court characterizing the
exercise of their legislative powers by any judicial process."12 issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
The issue revisited the Court twenty-two (22) years later. In 1946, favor of a proposed amendment to the Constitution-which was being
in Vera v. Avelino,13 three senators-elect who had been prevented submitted to the people for ratification-satisfied the three-fourths vote
from taking their oaths of office by a Senate resolution repaired to this requirement of the fundamental law. The force of this precedent has
Court to compel their colleagues to allow them to occupy their seats been weakened, however, by Suanes v. Chief Accountant of the
Senate, Avelino v. Cuenco, Tanada v. Cuenco,  and Macias v. within the province of the political department and not of the judicial
Commission on Elections.  In the first, we held that the officers and department of government to determine when war is at end. 39
employees of the Senate Electoral Tribunal are under its supervision
and control, not of that of the Senate President, as claimed by the
In 1952, the Court decided the landmark case of Montenegro v.
latter; in the second, this Court proceeded to determine the number of
Castaneda.40 President Quirino suspended the privilege of the writ of
Senators necessary for a quorum in the Senate; in the third, we
habeas corpus for persons detained or to be detained for crimes of
nullified the election, by Senators belonging to the party having the
sedition, insurrection or rebellion. The Court, citing Barcelon, declared
largest number of votes in said chamber, purporting to act on behalf of
that the authority to decide whether the exigency has arisen requiring
the party having the second largest number of votes therein, of two
the suspension of the privilege belongs to the President and his
(2) Senators belonging to the first party, as members, for the second
decision is final and conclusive on the courts.41
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives upon the Barcelon was the ruling case law until the 1971 case of Lansang v.
ground that the apportionment had not been made as may be possible Garcia came.42 Lansang reversed the previous cases and held that
according to the number of inhabitants of each province. Thus, we the suspension of the privilege of the writ of habeas corpus was not a
rejected the theory, advanced in these four cases, that the issues political question. According to the Court, the weight of Barcelon was
therein raised were political questions the determination of which is diluted by two factors: (1) it relied heavily on Martin v. Mott, which
beyond judicial review." 27 involved the U.S. President's power to call out the militia which is a
much broader power than suspension of the privilege of the writ; and
(2) the privilege was suspended by the American Governor-General
The Court explained that the power to amend the Constitution or to
whose act, as representative of the sovereign affecting the freedom of
propose amendments thereto is not included in the general grant of
its subjects, could not be equated with that of the President of the
legislative powers to Congress. As a constituent assembly, the
Philippines dealing with the freedom of the sovereign Filipino people.
members of Congress derive their authority from the fundamental law
and they do not have the final say on whether their acts are within or
beyond constitutional limits.28 This ruling was reiterated The Court declared that the power to suspend the privilege of
in Tolentino which held that acts of a constitutional convention called the writ of habeas corpus is neither absolute nor unqualified
for the purpose of proposing amendments to the Constitution are at because the Constitution sets limits on the exercise of
par with acts of Congress acting as a constituent assembly. 29 executive discretion on the matter. These limits are: (1) that the
privilege must not be suspended except only in cases of invasion,
insurrection or rebellion or imminent danger thereof; and (2) when the
In sum, this Court brushed aside the political question
public safety requires it, in any of which events the same may be
doctrine and assumed jurisdiction whenever it found
suspended wherever during such period the necessity for the
constitutionally-imposed limits on the exercise of powers
suspension shall exist. The extent of the power which may be inquired
conferred upon the Legislature.30
into by courts is defined by these limitations.43

The Court hewed to the same line as regards the exercise of

On the vital issue of how the Court may inquire into the President's
Executive power. Thus, the respect accorded executive discretion
exercise of power, it ruled that the function of the Court is not to
was observed in Severino v. Governor-General,31 where it was held
supplant but merely to check the Executive; to ascertain whether the
that the Governor-General, as head of the executive department, could
President has gone beyond the constitutional limits of his jurisdiction,
not be compelled by mandamus to call a special election in the town of
not to exercise the power vested in him or to determine the wisdom of
Silay for the purpose of electing a municipal president. Mandamus and
his act. Judicial inquiry is confined to the question of whether the
injunction could not lie to enforce or restrain a duty which is
President did not act arbitrarily.44 Using this yardstick, the Court found
discretionary. It was held that when the Legislature conferred upon
that the President did not.
the Governor-General powers and duties, it did so for the reason that
he was in a better position to know the needs of the country than any
other member of the executive department, and with full confidence The emergency period of the 1970's flooded the Court with cases
that he will perform such duties as his best judgment dictates. 32 which raised the political question defense. The issue divided the Court
down the middle. Javellana v. Executive Secretary45 showed that
while a majority of the Court held that the issue of whether or not the
Similarly, in Abueva v. Wood,33 the Court held that the Governor-
1973 Constitution had been ratified in accordance with the 1935
General could not be compelled by mandamus to produce certain
Constitution was justiciable, a majority also ruled that the decisive
vouchers showing the various expenditures of the Independence
issue of whether the 1973 Constitution had come into force and effect,
Commission. Under the principle of separation of powers, it ruled that
with or without constitutional ratification, was a political question.46
it was not intended by the Constitution that one branch of government
could encroach upon the field of duty of the other. Each department
has an exclusive field within which it can perform its part within certain The validity of the declaration of martial law by then President Marcos
discretionary limits.34 It observed that "the executive and legislative was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it
departments of government are frequently called upon to deal with upheld the President's declaration of martial law. On whether the
what are known as political questions, with which the judicial validity of the imposition of martial law was a political or justiciable
department of government has no intervention. In all such questions, question, the Court was almost evenly divided. One-half embraced the
the courts uniformly refused to intervene for the purpose of directing political question position and the other half subscribed to the
or controlling the actions of the other department; such questions justiciable position in Lansang. Those adhering to the political question
being many times reserved to those departments in the organic law of doctrine used different methods of approach to it.48
the state."35
In 1983, the Lansang ruling was weakened by the Court in Garcia-
In Forties v. Tiaco,36 the Court also refused to take cognizance of a Padilla v. Enrile.49 The petitioners therein were arrested and detained
case enjoining the Chief Executive from deporting an obnoxious alien by the Philippine Constabulary by virtue of a Presidential Commitment
whose continued presence in the Philippines was found by him to be Order (PCO). Petitioners sought the issuance of a writ of habeas
injurious to the public interest. It noted that sudden and unexpected corpus. The Court found that the PCO had the function of validating a
conditions may arise, growing out of the presence of untrustworthy person's detention for any of the offenses covered in Proclamation No.
aliens, which demand immediate action. The President's inherent 2045 which continued in force the suspension of the privilege of the
power to deport undesirable aliens is universally denominated as writ of habeas corpus. It held that the issuance of the PCO by the
political, and this power continues to exist for the preservation of the President was not subject to judicial inquiry.50 It went further by
peace and domestic tranquility of the nation.37 declaring that there was a need to re-examine Lansang with a view to
reverting to Barcelon and Montenegro. It observed that in times of war
or national emergency, the President must be given absolute control
In Manalang v. Quitoriano,38 the Court also declined to interfere in
for the very life of the nation and government is in great peril. The
the exercise of the President's appointing power. It held that the
President, it intoned, is answerable only to his conscience, the people,
appointing power is the exclusive prerogative of the President, upon
and God.51
which no limitations may be imposed by Congress, except those
resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to But barely six (6) days after Garcia-Padilla, the Court
prescribe qualifications to a given appointive office. promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held
that by the power of judicial review, the Court must inquire into every
phase and aspect of a person's detention from the moment he was
We now come to the exercise by the President of his powers
taken into custody up to the moment the court passes upon the merits
as Commander-in-Chief vis-a-vis the political question doctrine. In
of the petition. Only after such a scrutiny can the court satisfy itself
the 1940's, this Court has held that as Commander-in-Chief of the
that the due process clause of the Constitution has been met.53
Armed Forces, the President has the power to determine whether war,
in the legal sense, still continues or has terminated. It ruled that it is
It is now history that the improper reliance by the Court on justiciable issue but a political question and therefore not subject to
the political question doctrine eroded the people's faith in its judicial review.
capacity to check abuses committed by the then Executive in
the exercise of his commander-in-chief powers, particularly
It must be borne in mind, however, that while a member's opinion
violations against human rights. The refusal of courts to be
expressed on the floor of the Constitutional Convention is valuable, it is
pro-active in the exercise of its checking power drove the
not necessarily expressive of the people's intent.55 The proceedings of
people to the streets to resort to extralegal remedies. They
the Convention are less conclusive on the proper construction of the
gave birth to EDSA.
fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the
Two lessons were not lost to the members of the Constitutional legislature the courts seek, while in the former, courts seek to arrive at
Commission that drafted the 1987 Constitution. The first was the need the intent of the people through the discussions and deliberations of
to grant this Court the express power to review the exercise of the their representatives.56 The conventional wisdom is that the
powers as commander-in-chief by the President and deny it of any Constitution does not derive its force from the convention which
discretion to decline its exercise. The second was the need to framed it, but from the people who ratified it, the intent to be arrived
compel the Court to be pro-active by expanding its jurisdiction and, at is that of the people. 57
thus, reject its laid back stance against acts constituting grave abuse
of discretion on the part of any branch or instrumentality of
It is true that the third paragraph of Section 18, Article VII of
government. Then Chief Justice Roberto Concepcion, a member of the
the 1987 Constitution expressly gives the Court the power to
Constitutional Commission, worked for the insertion of the second
review the sufficiency of the factual bases used by the
paragraph of Section 1, Article VIII in the draft Constitution, 54 which
President in the suspension of the privilege of the writ of
reads:
habeas corpus and the declaration of martial law. It does not
follow, however, that just because the same provision did not
"Sec. 1. x x x. grant to this Court the power to review the exercise of the
calling out power by the President, ergo, this Court cannot
pass upon the validity of its exercise.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a Given the light of our constitutional history, this express grant
grave abuse of discretion amounting to lack or excess of of power merely means that the Court cannot decline the
jurisdiction on the part of any branch or instrumentality of the exercise of its power because of the political question doctrine
Government." as it did in the past. In fine, the express grant simply stresses
the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated
The language of the provision clearly gives the Court the power to
the discretion of the Court not to wield its power of review
strike down acts amounting to grave abuse of discretion of both the
thru the use of the political question doctrine.
legislative and executive branches of government.

It may be conceded that the calling out power may be a "lesser

We should interpret Section 18, Article VII of the 1987 Constitution in
power" compared to the power to suspend the privilege of the writ of
light of our constitutional history. The provision states:
habeas corpus and the power to declare martial law. Even then, its
exercise cannot be left to the absolute discretion of the Chief Executive
"Sec. 18. The President shall be the Commander-in-Chief of all as Commander-in-Chief of the armed forces, as its impact on the rights
armed forces of the Philippines and whenever it becomes of our people protected by the Constitution cannot be downgraded.
necessary, he may call out such armed forces to prevent or We cannot hold that acts of the commander-in-chief cannot be
suppress lawless violence, invasion or rebellion. In case of reviewed on the ground that they have lesser impact on the civil and
invasion or rebellion, when the public safety requires it, he political rights of our people. The exercise of the calling out power may
may, for a period not exceeding sixty days, suspend the be "benign" in the case at bar but may not be so in future cases.
privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting
from the proclamation of martial law or the suspension of the privilege
and Concurring Opinion in Lansang that it would be dangerous and
of the writ of habeas corpus, the President shall submit a report in
misleading to push the political question doctrine too far, is apropos.
person or in writing to Congress. The Congress, voting jointly, by a
It will not be complementary to the Court if it handcuffs itself to
vote of at least a majority of all its Members in regular or special
helplessness when a grievously injured citizen seeks relief from a
session, may revoke such proclamation or suspension, which
palpably unwarranted use of presidential or military power, especially
revocation shall not be set aside by the President. Upon the initiative
when the question at issue falls in the penumbra between the
of the President, the Congress may, in the same manner, extend such
"political" and the "justiciable. "58
proclamation or suspension for a period to be determined by Congress,
if the invasion or rebellion shall persist and public safety requires it.
We should not water down the ruling that deciding whether a matter
has been committed by the Constitution to another branch of
The Congress, if not in session, shall, within twenty-four hours
government, or whether the action of that branch exceeds whatever
following such proclamation or suspension, convene in accordance
authority has been committed, is a delicate exercise in constitutional
with its rules without need of a call.
interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.59 When private justiciable
The Supreme Court may review, in an appropriate proceeding rights are involved in a suit, the Court must not refuse to assume
filed by any citizen, the sufficiency of the factual basis of the jurisdiction even though questions of extreme political importance
proclamation of martial law or the suspension of the privilege are necessarily involved.60 Every officer under a constitutional
of the writ or the extension thereof, and must promulgate its government must act according to law and subject to the controlling
decision thereon within thirty days from its filing. power of the people, acting through the courts, as well as through the
executive and legislative. One department is just as representative of
x x x." the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places
upon all official action.61 This historic role of the Court is the
It is clear from the foregoing that the President, as foundation stone of a government of laws and not of men.62
Commander-in-Chief of the armed forces of the Philippines,
may call out the armed forces subject to two conditions: (1)
whenever it becomes necessary; and (2) to prevent or I join the Decision in its result.
suppress lawless violence, invasion or rebellion. Undeniably,
these conditions lay down the sine qua  requirement for the
exercise of the power and the objective sought to be attained
by the exercise of the power. They define the constitutional
Footnotes
parameters of the calling out power. Whether or not there is
compliance with these parameters is a justiciable issue and is
not a political question.
1
 Sec. 1, Article VIII, 1987 Constitution.

 Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
2
I am not unaware that in the deliberations of the Constitutional
Commission, Commissioner Bernas opined that the President's exercise
of the "calling out power," unlike the suspension of the privilege of the
3
 Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408
[1909].
writ of habeas corpus and the declaration of martial law, is not a
4
 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary,  Id. at 474.
43

p. 859 [1996].

 Id. at 480-481.
44

5
 5 Phil. 87 [1905].
45
 50 SCRA 30 [1973].
 Id. at 97.
6

 Id. at 138, 140-141.

46

 Id. at 104.
7

47
 59 SCRA 183 [1973].
8
 See Cruz, Philippine Political law, p. 87 [1998].

 Ibid.
48

 Id. at 113-114.
9

49
 121 SCRA 472 [1983].
10
 Id. at 106-107.

 Id. at 490-491.
50

11
 46 Phil. 83 [1924].

 Id. at 500-501.
51

12
 Id. at 97.
52
 121 SCRA 538 [1983].
13
 77 Phil. 192 [1946].

 Id. at 563.
53

14
 78 Phil. 1 [1947].
54
 See Concepcion’s sponsorship speech, I Record 434-435; see also Bernas, the
 Id. at 4-5. The court also adopted the enrolled bill theory which, like findings
15
Constitution of the Republic of the Philippines A Commentary, p. 863 [1996].
under the political question doctrine, "imports absolute verity on the courts"-at
12.
 J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426
55

[1970].
16
 97 Phil. 358 [1955].

 Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory
56

17
 109 Phil. 863 [1960]. Construction, 4th ed., p. 454 [1998].

18
 83 Phil. 17 [1949]. 57
 Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p.
39 [1911].
19
 Id. at 21-22.
58
 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-
in-Chief, pp. 16-17 [1951].
20
 Id. at 68-69.

 Baker v. Carr, 7 L Ed 2d at 682.

59
21
 103 Phil. 1051 [1957].

60
 Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336
22
 Id. at 1068. [1929].

23
 Id. at 1083.  Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW
61

408 [1909].
24
 5 SCRA 1 [1962].
 Id.
62

25
 21 SCRA 774 [1967].
The Lawphil Project - Arellano Law Foundation
26
 41 SCRA 702 [1971].

27
 Id. at 785-786.

28
 Id. at 787.
SEPARATE OPINION
29
 41 SCRA at 713.
VITUG, J.:
30
 Bernas, The 1987 Constitution of the Republic of the Philippines A
Commentary, p. 861 [1996]. In the equation of judicial power, neither of two extremes - one
totalistic and the other bounded - is acceptable nor ideal. The 1987
31
 16 Phil. 366 [1910]. Constitution has introduced its definition of the term "judicial power" to
be that which -
32
 Id. at 401.
"x x x includes the duty of the courts of justice to settle actual
33
 45 Phil. 612 [1924]. controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been
34
 Id. At 630. grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."1
35
 Id. at 637-638.

36
 16 Phil. 534 [1910]. It is not meant that the Supreme Court must be deemed vested with
the awesome power of overseeing the entire bureaucracy, let alone of
37
 Id. at 568-569, 576.
institutionalizing judicial absolutism, under its mandate. But while this
Court does not wield unlimited authority to strike down an act of its
38
two co-equal branches of government, it must not wither under
 94 Phil. 903 [1954].
technical guise on its constitutionally ordained task to intervene, and to
nullify if need be, any such act as and when it is attended by grave
 Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil.
39
abuse of discretion amounting to lack or excess of jurisdiction. The
50 [1945].
proscription then against an interposition by the Court into purely
political questions, heretofore known, no longer holds within that
40
 91 Phil. 882 [1952]. context.

41
 Id. at 887.
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in
his concurring opinion:
42
 42 SCRA 448 [1971].
"x x x [I] concur with the majority that this Court has jurisdiction over the deployment of troops to such places is not like parading them at
cases like the present x x x so as to establish in this country the the Luneta on Independence Day. Neither is it, however, like calling
judicial supremacy, with the Supreme Court as the final arbiter, to see them out because of actual fighting or the outbreak of violence.
that no one branch or agency of the government transcends the
Constitution, not only in justiceable but political questions as well." 3
We need to have evidence on these questions because, under the
Constitution, the President's power to call out the armed forces in
It is here when the Court must have to depart from the broad principle order to suppress lawless violence, invasion or rebellion is subject to
of separation of powers that disallows an intrusion by it in respect to the limitation that the exercise of this power is required in the interest
the purely political decisions of its independent and coordinate of public safety.3
agencies of government.
Indeed, whether it is the calling out of the armed forces alone in order
The term grave abuse of discretion is long understood in our to suppress lawless violence, invasion or rebellion or also the
jurisprudence as being, and confined to, a capricious and whimsical or suspension of the privilege of the writ of habeas corpus or the
despotic exercise of judgment amounting to lack or excess of proclamation of martial law (in case of invasion or rebellion), the
jurisdiction. Minus the not-so-unusual exaggerations often invoked by exercise of the President's powers as commander-in-chief, requires
litigants in the duel of views, the act of the President in simply proof - not mere assertion.4 As has been pointed out, "Standing is not
calling on the Armed Forces of the Philippines, an executive `an ingenious academic exercise in the conceivable' . . . but
prerogative, to assist the Philippine National Police in "joint requires . . . a factual showing of perceptible harm." 5
visibility patrols" in the metropolis does not, I believe, constitute
grave abuse of discretion that would now warrant an exercise by the
Because of the absence of such record evidence, we are left to guess
Supreme Court of its extraordinary power as so envisioned by the
or even speculate on these questions. Thus, at one point, the majority
fundamental law.
opinion says that what is involved here is not even the calling out of
the armed forces but only the use of marines for law enforcement. (p.
Accordingly, I vote for the dismissal of the petition. 13) At another point, however, the majority opinion somersaults and
says that because of bombings perpetrated by lawless elements, the
deployment of troops in shopping centers and public utilities is
justified. (p. 24)

Footnotes
We are likely to err in dismissing the suit brought in this case on the
1
ground that the calling out of the military does not violate the
 Section 1, Article VIII of the Constitution.
Constitution, just as we are likely to do so if we grant the petition and
2
invalidate the executive issuance in question. For indeed, the lack of a
 83 Phil. 17.
real, earnest and vital controversy can only impoverish the judicial
process. That is why, as Justice Laurel emphasized in the Angara case,
3
 Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., "this power of judicial review is limited to actual cases and
298 SCRA 756.
controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the
very lis mota presented."6
The Lawphil Project - Arellano Law Foundation

We are told, however, that the issues raised in this case are of
"paramount interest" to the nation. It is precisely because the issues
raised are of paramount importance that we should all the more forego
ruling on the constitutional issues raised by petitioner and limit the
MENDOZA, J., concurring and dissenting: dismissal of this petition on the ground of lack of standing of
petitioner. A Fabian policy of leaving well enough alone is a counsel of
prudence.
I concur in the opinion of the Court insofar as it holds petitioner to be
without standing to question the validity of LOI 02/2000 which
mandates the Philippine Marines to conduct "joint visibility" patrols For these reasons and with due appreciation of the scholarly attention
with the police in Metro Manila. But I dissent insofar as the opinion lavished by the majority opinion on the constitutional questions raised,
dismisses the petition in this case on other grounds. I submit that I am constrained to limit my concurrence to the dismissal of this suit
judgment on the substantive constitutional issues raised by petitioner on the ground of lack of standing of petitioner and the consequent lack
must await an actual case involving real parties with "injuries" to show of an actual case or controversy.
as a result of the operation of the challenged executive action. While
as an organization for the advancement of the rule of law petitioner
has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls
short of that which is necessary to give petitioner standing.
Footnotes

As I have indicated elsewhere, a citizens' suit challenging the 1

 Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord,
constitutionality of governmental action requires that (1) the petitioner Telecommunication and Broadcast Attorneys of the Philippines v. COMELEC, 289
must have suffered an "injury in fact" of an actual or imminent nature; SCRA 343 (1998).
(2) there must be a causal connection between the injury and the
conduct complained of; and (3) the injury is likely to be redressed by a  Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
2

favorable action by this Court.1 The "injury in fact" test requires more

than injury to a cognizable interest. It requires that the party seeking 3
 See CONST., ART. VII, §18.
review be himself among those injured.2
 See Lansang v. Garcia, 42 SCRA 448 (1971).
4

My insistence on compliance with the standing requirement is

grounded in the conviction that only a party injured by the operation  Lujan v. Defenders of Wildlife, supra.
5

of the governmental action challenged is in the best position to aid the

Court in determining the precise nature of the problem presented.
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
6
Many a time we have adverted to the power of judicial review as an
awesome power not to be exercised save in the most exigent situation.
For, indeed, sound judgment on momentous constitutional questions is
not likely to be reached unless it is the result of a clash of adversary
arguments which only parties with direct and specific interest in the
outcome of the controversy can make. This is true not only when we
strike down a law or official action but also when we uphold it.

In this case, because of the absence of parties with real and

substantial interest to protect, we do not have evidence on the effect
of military presence in malls and commercial centers, i.e., whether
such presence is coercive or benign. We do not know whether the
presence of so many marines and policemen scares shoppers, tourists,
and peaceful civilians, or whether it is reassuring to them. To be sure,