EN BANC
G.R. No. 231671, July 25, 2017
ALEXANDER A. PADILLA, RENE A.V. SAGUISAG, CHRISTIAN S. MONSOD, LORETTA ANN P. ROSALES, RENE B. GOROSPE, AND SENATOR LEILA M. DE LIMA, Petitioners, v. CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE OF THE PHILIPPINES, AS REPRESENTED BY SENATE PRESIDENT AQUILINO "KOKO" PIMENTEL III, AND THE HOUSE OF REPRESENTATIVES, AS REPRESENTED BY HOUSE SPEAKER PANTALEON D. ALVAREZ, Respondents.
G.R. No. 231694
FORMER SEN. WIGBERTO E. TAÑADA, BISHOP EMERITUS DEOGRACIAS S. IÑIGUEZ, BISHOP BRODERICK PABILLO, BISHOP ANTONIO R. TOBIAS, MO. ADELAIDA YGRUBAY, SHAMAH BULANGIS AND CASSANDRA D. DELURIA, Petitioners, v. CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE AND THE HOUSE OF REPRESENTATIVES, AQUILINO "KOKO" PIMENTEL III, PRESIDENT, SENATE OF THE PHILIPPINES, AND PANTALEON D. ALVAREZ, SPEAKER, HOUSE OF THE REPRESENTATIVES, Respondents.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
These consolidated petitions under consideration essentially assail the failure and/or refusal of respondent Congress of the Philippines (the Congress), composed of the Senate and the House of Representatives, to convene in joint session and therein deliberate on Proclamation No. 216 issued on May 23, 2017 by President Rodrigo Roa Duterte (President Duterte). Through Proclamation No. 216, President Duterte declared a state of martial law and suspended the privilege of the writ of habeas corpus in the whole of Mindanao for a period not exceeding sixty (60) days effective from the date of the proclamation's issuance.
In the Petition for Mandamus of Alexander A. Padilla (Padilla), Rene A.V. Saguisag (Saguisag), Christian S. Monsod (Monsod), Loretta Ann P. Rosales (Rosales), Rene B. Gorospe (Gorospe), and Senator Leila M. De Lima (Senator De Lima), filed on June 6, 2017 and docketed as G.R. No. 231671 (the Padilla Petition), petitioners seek a ruling from the Court directing the Congress to convene in joint session to deliberate on Presidential Proclamation No. 216, and to vote thereon.1
In the Petition for Certiorari and Mandamus of former Senator Wigberto E. Tañada (Tañada), Bishop Emeritus Deogracias Iñiguez (Bishop Iñiguez), Bishop Broderick Pabillo (Bishop Pabillo), Bishop Antonio Tobias (Bishop Tobias), Mo. Adelaida Ygrubay (Mo. Ygrubay), Shamah Bulangis (Bulangis), and Cassandra D. Deluria (Deluria), filed on June 7, 2017 and docketed as G.R. No. 231694 (the Tañada Petition), petitioners entreat the Court to: (a) declare the refusal of the Congress to convene in joint session for the purpose of considering Proclamation No. 216 to be in grave abuse of discretion amounting to a lack or excess of jurisdiction; and (b) issue a writ of mandamus directing the Congress to convene in joint session for the aforementioned purpose.2
Respondent Congress, represented by the Office of the Solicitor General (OSG), filed its Consolidated Comment on June 27, 2017. Respondents Senate of the Philippines and Senate President Aquilino "Koko" Pimentel III (Senate President Pimentel), through the Office of the Senate Legal Counsel, separately filed their Consolidated Comment (Ex Abudanti Cautela) on June 29, 2017.
[I] THE PETITION SATISFIES THE REQUISITES FOR THE EXERCISE OF THE HONORABLE COURT'S POWER OF JUDICIAL REVIEW.Petitioners claim that there is an actual case or controversy in this instance and that their case is ripe for adjudication. According to petitioners, the resolutions separately passed by the Senate and the House of Representatives, which express support as well as the intent not to revoke President Duterte's Proclamation No. 216, injure their rights "to a proper [and] mandatory legislative review of the declaration of martial law" and that the continuing failure of the Congress to convene in joint session similarly causes a continuing injury to their rights.13
[i] THERE IS AN ACTUAL CASE OR CONTROVERSY. [ii] PETITIONERS, AS PART OF THE PUBLIC AND AS TAXPAYERS, POSSESS LEGAL STANDING TO FILE THIS PETITION. [iii] PETITIONER (DE LIMA], AS MEMBER OF CONGRESS, HAS LEGAL STANDING TO FILE THIS PETITION. [iv] THE CASE AND THE ISSUE INVOLVED ARE RIPE FOR JUDICIAL DETERMINATION.
[II] THE PLAIN TEXT OF THE CONSTITUTION, SUPPORTED BY THE EXPRESS INTENT OF THE FRAMERS, AND CONFIRMED BY THE SUPREME COURT, REQUIRES THAT CONGRESS CONVENE IN JOINT SESSION TO DELIBERATE AND VOTE AS A SINGLE DELIBERATIVE BODY.
[i] THE PLAIN TEXT OF THE CONSTITUTION REQUIRES THAT CONGRESS CONVENE IN JOINT SESSION. [ii] THE EXPRESS INTENT OF THE FRAMERS IS FOR CONGRESS TO CONVENE IN JOINT SESSION TO DELIBERATE AND VOTE AS A SINGLE DELIBERATIVE BODY. [iii] THE SUPREME COURT CONFIRMED IN FORTUN v. GMA THAT CONGRESS HAS THE "AUTOMATIC DUTY" TO CONVENE IN JOINT SESSION. [iv] LEGISLATIVE PRECEDENT ALSO RECOGNIZES CONGRESS' DUTY TO CONVENE IN JOINT SESSION.
[III] THE REQUIREMENT TO ACT AS A SINGLE DELIBERATIVE BODY UNDER ARTICLE VII, [SECTION] 18 OF THE CONSTITUTION IS A MANDATORY, MINISTERIAL CONSTITUTIONAL DUTY OF CONGRESS, WHICH CAN BE COMPELLED BY MANDAMUS.12
Similar to the contentions in the Padilla Petition, petitioners maintain that they have sufficiently shown all the essential requisites in order for this Court to exercise its power of judicial review, in that: (1) an actual case or controversy exists; (2) they possess the standing to file this case; (3) the constitutionality of a governmental act has been raised at the earliest possible opportunity; and (4) the constitutionality of the said act is the very lis mota of the petition.
- A PLAIN READING OF THE 1987 CONSTITUTION LEADS TO THE INDUBITABLE CONCLUSION THAT A JOINT SESSION OF CONGRESS TO REVIEW A DECLARATION OF MARTIAL LAW BY THE PRESIDENT IS MANDATORY.
- FAILURE TO CONVENE A JOINT SESSION DEPRIVES LAWMAKERS OF A DELIBERATIVE AND INTERROGATORY PROCESS TO REVIEW MARTIAL LAW.
- FAILURE TO CONVENE A JOINT SESSION DEPRIVES THE PUBLIC OF TRANSPARENT PROCEEDINGS WITHIN WHICH TO BE INFORMED OF THE FACTUAL BASES OF MARTIAL LAW AND THE INTENDED PARAMETERS OF ITS IMPLEMENTATION.
- THE FRAMERS OF THE CONSTITUTION INTENDED THAT A JOINT SESSION OF CONGRESS BE CONVENED IMMEDIATELY AFTER THE DECLARATION OF MARTIAL LAW.21
- Whether or not the Court has jurisdiction over the subject matter of these consolidated petitions;
- Whether or not the petitions satisfy the requisites for the Court's exercise of its power of judicial review;
- Whether or not the Congress has the mandatory duty to convene jointly upon the President's proclamation of martial law or the suspension of the privilege of the writ of habeas corpus under Article VII, Section 18 of the 1987 Constitution; and
- Whether or not a writ of mandamus or certiorari may be issued in the present cases.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government In the celebrated words of Justice Laurel in Angara v. Electoral Commission, it means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government" To the legislative branch of government, through Congress, belongs the power to make laws; to the executive branch of government, through the President, belongs the power to enforce laws; and to the judicial branch of government, through the Court, belongs the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, "[e]ach department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere." Thus, "the legislature has no authority to execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has no power to make or execute the law." The principle of separation of powers and its concepts of autonomy and independence stem from the notion that the powers of government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or the citizenry. To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally capable of independent action in exercising their respective mandates. Lack of independence would result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or others. (Emphases supplied, citations omitted.)Contrary to respondents' protestations, the Court's exercise of jurisdiction over these petitions cannot be deemed as an unwarranted intrusion into the exclusive domain of the Legislature. Bearing in mind that the principal substantive issue presented in the cases at bar is the proper interpretation of Article VII, Section 18 of the 1987 Constitution, particularly regarding the duty of the Congress to vote jointly when the President declares martial law and/or suspends the privilege of the writ of habeas corpus, there can be no doubt that the Court may take jurisdiction over the petitions. It is the prerogative of the Judiciary to declare "what the law is."42 It is worth repeating here that:
[W]hen the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.43 (Emphases supplied.)Political question doctrine
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.It cannot be gainsaid that there are compelling and weighty reasons for the Court to proceed with the resolution of these consolidated petitions on the merits. As explained in the preceding discussion, these cases involve a constitutional issue of transcendental significance and novelty. A definitive ruling from this Court is imperative not only to guide the Bench, the Bar, and the public but, more importantly, to clarify the parameters of congressional conduct required by the 1987 Constitution, in the event of a repetition of the factual precedents that gave rise to these cases.
x x x x
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.65 (Emphasis supplied, citations omitted.)
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.Outside explicit constitutional limitations, the Commander-in-Chief clause in Article VII, Section 18 of the 1987 Constitution vests on the President, as Commander-in-Chief, absolute authority over the persons and actions of the members of the armed forces,66 in recognition that the President, as Chief Executive, has the general responsibility to promote public peace, and as Commander-in-Chief, the more specific duty to prevent and suppress rebellion and lawless violence.67 However, to safeguard against possible abuse by the President of the exercise of his power to proclaim martial law and/or suspend the privilege of the writ of habeas corpus, the 1987 Constitution, through the same provision, institutionalized checks and balances on the President's power through the two other co-equal and independent branches of government, i.e., the Congress and the Judiciary. In particular, Article VII, Section 18 of the 1987 Constitution requires the President to submit a report to the Congress after his proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus and grants the Congress the power to revoke, as well as extend, the proclamation and/or suspension; and vests upon the Judiciary the power to review the sufficiency of the factual basis tor such proclamation and/or suspension.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied.)
a. Within forty-eight (48) hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress;There is no question herein that the first provision was complied with, as within forty-eight (48) hours from the issuance on May 23, 2017 by President Duterte of Proclamation No. 216, declaring a state of martial law and suspending the privilege of the writ of habeas corpus in Mindanao, copies of President Duterte's Report relative to Proclamation No. 216 was transmitted to and received by the Senate and the House of Representatives on May 25, 2017.
b. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President;
c. Upon the initiative of the President, the Congress may, in the same manner. extend such proclamation or suspension for a period to he determined by the Congress, if the invasion or rebellion shall persist; and
d. The Congress, if not in session, shall within twenty-four hours (24) following such proclamation or suspension, convene in accordance with its rules without need of call.
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must he given its literal meaning and applied without attempted interpretation. This is known as the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute there should be no departure.The provision in question is clear, plain, and unambiguous. In its literal and ordinary meaning, the provision grants the Congress the power to revoke the President's proclamation of martial law or the suspension of the privilege of the writ of habeas corpus and prescribes how the Congress may exercise such power, i.e., by a vote of at least a majority of all its Members, voting jointly, in a regular or special session. The use of the word "may" in the provision - such that "[t]he Congress x x x may revoke such proclamation or suspension x x x" - is to be construed as permissive and operating to confer discretion on the Congress on whether or not to revoke,71 but in order to revoke, the same provision sets the requirement that at least a majority of the Members of the Congress, voting jointly, favor revocation.
The primary source whence to ascertain constitutional intent or purpose is the language of the provision itself. If possible, the words in the Constitution must be given their ordinary meaning, save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule in this wise:We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to he assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus there are cases where the need for construction is reduced to a minimum. (Emphases supplied.)
A fool proof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.However, in the same Decision, the Court issued the following caveat:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views' of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framer's understanding thereof.74 (Emphasis supplied.)As the Court established in its preceding discussion, the clear meaning of the relevant provision in Article VII, Section 18 of the 1987 Constitution is that the Congress is only required to vote jointly on the revocation of the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. Based on the Civil Liberties Union case, there is already no need to look beyond the plain language of the provision and decipher the intent of the framers of the 1987 Constitution. Nonetheless, the deliberations on Article VII, Section 18 of the 1986 ConCom does not reveal a manifest intent of the framers to make it mandatory for the Congress to convene in joint session following the President's proclamation and/or suspension, so it could deliberate as a single body, regardless of whether its Members will concur in or revoke the President's proclamation and/or suspension.
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial law there is no need for concurrence of the majority of the Members of Congress because the provision says "in case of actual invasion and rebellion." If there is actual invasion and rebellion, as Commissioner Crispino de Castro said, there is need for immediate response because there is an attack. Second, the fact of securing a concurrence may be impractical because the roads might be blocked or barricaded. They say that in case of rebellion, one cannot even take his car and go to the Congress, which is possible because the roads are blocked or barricaded. And maybe if the revolutionaries are smart, they would have an individual team for each and every Member of the Congress so he would not be able to respond to a call for a session. So the requirement of an initial concurrence of the majority of all the Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.Ultimately, twenty-eight (28) Commissioners voted to remove the requirement for prior concurrence by the Congress for the effectivity of the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus, against only twelve (12) Commissioners who voted to retain it.
Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is subject to judicial review at any point in time. So on that basis, I agree that there is no need for concurrence as a prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus. x x x
x x x x
MR. SUAREZ. x x x
The Commissioner is suggesting that in connection with Section 15, we delete the phrase "and, with the concurrence of at least a majority of all the Members of the Congress..."
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ of habeas corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative of the President?
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be shortened by the Congress or the Senate because the next sentence says that the Congress or the Senate may even revoke the proclamation.
x x x x
MR. MONSOD. x x x
We are back to Section 15, page 7, lines 1 and 2. I just want to reiterate my previous proposal to amend by deletion the phrase "and, with the concurrence of at least a majority of all the members of Congress."
x x x x
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively unto the President the right to determine the factors which may lead to the declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has strong and compelling reasons in seeking to delete this particular phrase. May we be informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even during those first 60 days.
MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the President to determine these factors, especially the existence of an invasion or rebellion and the second factor of determining whether the public safety requires it or not, may I call the attention of the Gentleman to what happened to us during the past administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as President of the Philippines by virtue of the powers vested upon him purportedly under Article VII, Section 10(2) of the Constitution, wherein he made this predicate under the "Whereas" provision.Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists and other armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force have assumed the magnitude of an actual state of war against our people and the Republic of the Philippines.And may I also call the attention of the Gentleman to General Order No.3, also promulgated by Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein he said, among other things:Whereas, martial law having been declared because of wanton destruction of lives and properties, widespread lawlessness and anarchy and chaos and disorder now prevailing throughout the country, which condition has been brought about by groups of men who are actively engaged in a criminal conspiracy to seize political and state power in the Philippines in order to take over the government by force and violence, the extent of which has now assumed the proportion of an actual war against our people and the legitimate government...And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare martial law in our country without justifiable reason. Would the Gentleman still insist on the deletion of the phrase "and, with the concurrence of at least a majority of all the members of the Congress"?
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos he is undoubtedly an aberration in our history and national consciousness. But given the possibility that there would be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true, as the Gentleman has mentioned, that there is an exclusive right to determine the factual bases because the paragraph beginning on line 9 precisely tells us that the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its decision on the same within 30 days from its filing.
I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And here we are trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. And I am saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was able to do all those things mentioned.
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we are looking for are safeguards that are reasonable and, I believe, adequate at this point. On the other hand, in case of invasion or rebellion, even during the first 60 days when the intention here is to protect the country in that situation, it would be unreasonable to ask that there should be a concurrence on the part of the Congress, which situation is automatically terminated at the end of such 60 days.
x x x x
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check on this awesome power of the Chief Executive acting as Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those conditions.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority.
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of Congress would be available; and, secondly, the President will be able to act quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency.
MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event of an invasion or a rebellion.
MR. SUAREZ. No. But in both instances, we would be seeking to protect not only the country but the rights of simple citizens. We have to balance these interests without sacrificing the security of the State.
MR. MONSOD. I agree with the Gentleman that is why in the Article on the Bill of Rights, which was approved on Third Reading, the safeguards and the protection of the citizens have been strengthened. And on line 21 of this paragraph, I endorsed the proposed amendment of Commissioner Padilla. We are saying that those who are arrested should be judicially charged within five days; otherwise, they shall be released. So, there are enough safeguards.
MR. SUAREZ. These are safeguards after the declaration of martial law and after the suspension of the writ of habeas corpus.
MR. MONSOD. That is true.76 (Emphases supplied.)
MR. MONSOD. Madam President, I want to ask the Committee a clarifying question on line 4 of page 7 as to whether the meaning here is that the majority of all the Members of each House vote separately. Is that the intent of this phrase?When the matter was put to a vote, twenty-four (24) Commissioners voted for the two Houses of the Congress "voting jointly" in the revocation of the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus, and thirteen (13) Commissioners opted for the two Houses "voting separately."
x x x x
FR. BERNAS. We would like a little discussion on that because yesterday we already removed the necessity for concurrence of Congress for the initial imposition of martial law. If we require the Senate and the House of Representatives to vote separately for purposes of revoking the imposition of martial law, that will make it very difficult for Congress to revoke the imposition of martial law and the suspension of the privilege of the writ of habeas corpus. That is just thinking aloud. To balance the fact that the President acts unilaterally, then the Congress voting as one body and not separately can revoke the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.
MR. MONSOD. In other words, voting jointly.
FR. BERNAS. Jointly, yes.
x x x x
MR. RODRIGO. May I comment on the statement made by Commissioner Bernas? I was a Member of the Senate for 12 years. Whenever a bicameral Congress votes, it is always separately.
For example, bills coming from the Lower House are voted upon by the Members of the House. Then they go up to the Senate and voted upon separately. Even on constitutional amendments, where Congress meets in joint session, the two Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of absorbed by the House considering that the Members of the Senate are completely outnumbered by the Members of the House. So, I believe that whenever Congress acts, it must be the two Houses voting separately.
If the two Houses vote "jointly," it would mean mixing the 24 Senators with 250 Congressmen. This would result in the Senate being absorbed and controlled by the House. This violates the purpose of having a Senate.
FR. BERNAS. I quite realize that that is the practice and, precisely, in proposing this, I am consciously proposing this as an exception to this practice because of the tremendous effect on the nation when the privilege of the writ of habeas corpus is suspended and then martial law is imposed. Since we have allowed the President to impose martial law and suspend the privilege of the writ of habeas corpus unilaterally, we should make it a little more easy for Congress to reverse such actions for the sake of protecting the rights of the people.
MR. RODRIGO. Maybe the way it can be done is to vest this function in just one of the Chambers - to the House alone or to the Senate alone. But to say, "by Congress," both House and Senate "voting" jointly is practically a vote by the House.
FR. BERNAS. I would be willing to say just the vote of the House.
MR. RODRIGO. That is less insulting to the Senate. However, there are other safeguards. For example, if, after 60 days the Congress does not act, the effectiveness of the declaration of martial law or the suspension of the privilege of the writ ceases. Furthermore, there is recourse to the Supreme Court.
FR. BERNAS. I quite realize that there is this recourse to the Supreme Court and there is a time limit, but at the same time because of the extraordinary character of this event when martial law is imposed, I would like to make it easier for the representatives of the people to review this very significant action taken by the President.
MR. RODRIGO. Between the Senate being absorbed and controlled by the House numerically and the House voting alone, the lesser of two evils is the latter.
x x x x
MR. GUINGONA. x x x
In connection with the inquiry of Commissioner Monsod, and considering the statements made by Commissioner Rodrigo, I would like to say, in reply to Commissioner Bernas, that perhaps because of necessity, we might really have to break tradition. Perhaps it would be better to give this function of revoking the proclamation of martial law or the suspension of the writ or extending the same to the House of Representatives, instead of to the Congress. I feel that even the Senators would welcome this because they would feel frustrated by the imbalance in the number between the Senators and the Members of the House of Representatives.
Anyway, Madam President, we have precedents or similar cases. For example, under Section 24 of the committee report on the Legislative, appropriation, revenue or tariff bills, and bills authorizing increase of public debt are supposed to originate exclusively in the House of Representatives. Besides, we have always been saying that it is the Members of the House of Representatives who are mostly in touch with the people since they represent the various districts of our country.
x x x x
MR. MONSOD. I would prefer to have the vote of both Houses because this is a very serious question that must be fully discussed. By limiting it alone to the House of Representatives, then we lose the benefit of the advice and opinion of the Members of the Senate. I would prefer that they would be in joint session, but I would agree with Father Bernas that they should not be voting separately as part of the option. I think they should be voting jointly, so that, in effect, the Senators will have only one vote. But at least we have the benefit of their advice.
x x x x
MR. RODRIGO. I was the one who proposed that the two Houses vote separately because if they vote jointly, the Senators are absolutely outnumbered. It is insulting to the intelligence of the Senators to join a session where they know they are absolutely outnumbered. Remember that the Senators are elected at large by the whole country. The Senate is a separate Chamber. The Senators have a longer term than the Members of the House; they have a six-year term. They are a continuing Senate. Out of 24, twelve are elected every year. So, if they will participate at all, the Senate must vote separately. That is the practice everywhere where there are two chambers. But as I said, between having a joint session of the Senate and the House voting jointly where it is practically the House that will decide alone, the lesser of two evils is just to let the House decide alone instead of insulting the Senators by making them participate in a charade.
MR. REGALADO. May the Committee seek this clarification from Commissioner Rodrigo? This voting is supposed to revoke the proclamation of martial law. If the two Houses vote separately and a majority is obtained in the House of Representatives for the revocation of the proclamation of martial law but that same majority cannot he obtained in the Senate voting separately, what would be the situation?
MR. RODRIGO. Then the proclamation of martial law or the suspension continues for almost two months. After two months, it stops. Besides, there is recourse to the Supreme Court.
MR. REGALADO. Therefore, that arrangement would be very difficult for the legislative since they are voting separately and, for lack of majority in one of the Houses they are precluded from revoking that proclamation. They will just, therefore, have to wait until the lapse of 60 days.
MR. RODRIGO. It might be difficult, yes. But remember, we speak of the Members of Congress who are elected by the people. Let us not forget that the President is also elected by the people. Are we forgetting that the President is elected by the people? We seem to distrust all future Presidents just became one President destroyed our faith by his declaration of martial law. I think we are overreacting. Let us not judge all Presidents who would henceforth be elected by the Filipino people on the basis of the abuses made by that one President. Of course, we must be on guard; but let us not overreact.
Let me make my position clear. I am against the proposal to make the House and the Senate vote jointly. That is an insult to the Senate.
x x x x
MR. RODRIGO. Will the Gentleman yield to a question?
MR. MONSOD. Yes, Madam President.
MR. RODRIGO. So, in effect, if there is a joint session composed of 250 Members of the House plus 24 Members of the Senate, the total would be 274. The majority would be one-half plus one.
MR. MONSOD. So, 148 votes.
MR. RODRIGO. And the poor Senators would be absolutely absorbed and outnumbered by the 250 Members of the House. Is that it?
MR. MONSOD. Yes, that is one of the implications of the suggestion and the amendment is being made nonetheless because there is a higher objective or value which is to prevent a deadlock that would enable the President to continue the full 60 days in case one House revokes and the other House does not.
The proposal also allows the Senators to participate fully in the discussions and whether we like it or not, the Senators have very large persuasive powers because of their prestige and their national vote.
MR. RODRIGO. So, the Senators will have the "quality votes" but Members of the House will have the "quantity votes." Is that it?
MR. MONSOD. The Gentleman is making an assumption that they will vote against each other. I believe that they will discuss, probably in joint session and vote on it; then the consensus will be clear.
x x x x
MR. NOLLEDO. Madam President, the purpose of the amendment is really to set forth a limitation because we have to avoid a stalemate. For example, the Lower House decides that the declaration of martial law should be revoked, and that later on, the Senate sitting separately decides that it should not be revoked. It becomes inevitable that martial law shall continue even if there should be no factual basis for it.
MR. OPLE. Madam President, if this amendment is adopted, we will be held responsible for a glaring inconsistency in the Constitution to a degree that it distorts the bicameral system that we have agreed to adopt. I reiterate: If there are deadlocks, it is the responsibility of the presidential leadership, together with the leaders of both Houses, to overcome them.77 (Emphases supplied.)
MR. RODRIGO. Madam President, may I propose an amendment?The proposed amendment was not adopted, however, as only five (5) Commissioners voted in its favor and twenty-five (25) Commissioners voted against it. Thus, the power to revoke the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus still lies with both Houses of the Congress, voting jointly, by a vote of at least a majority of all its Members.
x x x x
MR. RODRIGO. On Section 15, page 7, line 4, I propose to change the word "Congress" to HOUSE OF REPRESENTATIVES so that the sentence will read: "The HOUSE OF REPRESENTATIVES, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension or extend the same if the invasion or rebellion shall persist and public safety requires it."
FR. BERNAS. Madam President, the proposed amendment is really a motion for reconsideration. We have already decided that both Houses will vote jointly. Therefore, the proposed amendment, in effect, asks for a reconsideration of that vote in order to give it to the House of Representatives.
MR. RODRIGO. Madam President, the opposite of voting jointly is voting separately. If my amendment were to vote separately, then, yes, it is a motion for reconsideration. But this is another formula.
x x x x
MR. DE CASTRO. What is the rationale of the amendment?
MR. RODRIGO. It is intended to avoid that very extraordinary and awkward provision which would make the 24 Senators meet jointly with 250 Members of the House and make them vote jointly. What I mean is, the 24 Senators, like a drop in the bucket, are absorbed numerically by the 250 Members of the House.
x x x x
MR. SARMIENTO. Madam President, we need the wisdom of the Senators. What is at stake is the future of our country - human rights and civil liberties. If we separate the Senators, then we deprive the Congressmen of the knowledge and experience of these 24 men. I think we should forget the classification of "Senators" or "Congressmen." We should all work together to restore democracy in our country. So we need the wisdom of 24 Senators.
MR. RODRIGO. Madam President, may I just answer. This advice of the 24 Senators can be sought because they are in the same building. Anyway, the provision, with the amendment of Commissioner Monsod, does not call for a joint session. It only says: "the Congress, by a vote of at least a majority of all its Members in regular or special session" - it does not say "joint session." So, I believe that if the Members of the House need the counsel of the Senators, they can always call on them, they can invite them.78 (Emphasis supplied.)
2. On the date of the President's declaration of martial law and the suspension of the privilege of the writ of habeas corpus, Congress was in session (from May 2, to June 2, 2017), in its First Regular Session of the 17th Congress, as evidenced by its Legislative Calendar, otherwise known as Calendar of Session as contained in Concurrent Resolution No. 3 of both the Senate and the House of Representatives. x x xIt cannot be disputed then that the Senate and House of Representatives placed President Duterte's Proclamation No. 216 under serious review and consideration, pursuant to their power to revoke such a proclamation vested by the Constitution on the Congress. Each House timely took action by accepting and assessing the President's Report, inviting over and interpellating executive officials, and deliberating amongst their fellow Senators or Representatives, before finally voting in favor of expressing support for President Duterte's Proclamation No. 216 and against calling for a joint session with the other House. The prompt actions separately taken by the two Houses of the Congress on President Duterte's Proclamation No. 216 belied all the purported difficulties and delays such procedures would cause as raised in the Concurring and Dissenting Opinion of Associate Justice Marvic M.V.F. Leonen (Justice Leonen). As earlier pointed out, there is no constitutional provision governing concurrence by the Congress in the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus, and absent a specific mandate for the Congress to hold a joint session in the event of concurrence, then whether or not to hold a joint session under such circumstances is completely within the discretion of the Congress.
3. During the plenary session of the Senate on the following day, 24 May 2017, privilege speeches and discussions had already been made about the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. This prompted Senator Franklin M. Drilon to move to invite the Secretary of National Defense, the National Security Adviser and the Chief of Staff of the Armed Forces of the Philippines to brief the senators in closed session on what transpired in Mindanao. Submitted to a vote and there being no objection, the Senate approved the motion. x x x
4. On 25 May 2017, the President furnished the Senate and the House of Representatives, through Senate President Aquilino "Koko" Pimentel III and Speaker Pantaleon D. Alvarez, respectively, with copies of his report (hereinafter, the "Report") detailing the factual and legal basis for his declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao.
5. On or about 25 May 2017, invitation letters were issued and sent by the Senate Secretary, Atty. Lutgardo B. Barbo to the following officials requesting them to attend a briefing for the Senators on 29 May 2017 at 3:00 p.m. at the Senators' Lounge at the Senate in a closed door session to describe what transpired in Mindanao which was the basis of the declaration of martial law in Mindanao: (a) Secretary Delfin N. Lorenzana, Secretary of National Defense (hereinafter, "Secretary Lorenzana"); (b) Secretary Hermogenes C. Esperon, Jr., National Security Adviser and Director General of the National Security Council (hereinafter, "Secretary Esperon"); and (c) General Eduardo M. Año, Chief of Staff of the Armed Forces of the Philippines (hereinafter, "Gen. Año"). The said letters stated that the Senators requested that the President's Report be explained and that more details be given about the same. x x x
6. On 29 May 2017, about 3:30 p.m., a closed door briefing was conducted by Secretary Lorenzana, Secretary Esperon and other security officials for the Senators to brief them about the circumstances surrounding the declaration of martial law and to inform them about details about the President's Report. The briefing lasted for about four (4) hours. After the briefing, the Senators had a caucus to determine what could be publicly revealed.
7. On the same day, 29 May 2017, the House of Representatives resolved to constitute itself as a Committee of the Whole on 31 May 2017 to consider the President's Report.
8. On 30 May 2017, two (2) resolutions were introduced in the Senate about the proclamation of martial law. The first one was P.S. Resolution No. 388 (hereinafter, "P.S.R. No. 388") introduced by Senators Sotto, Pimentel, Recto, Angara, Binay, Ejercito, Gatchalian, Gordon, Honasan, Lacson, Legarda, Pacquiao, Villanueva, Villar and Zubiri which was entitled, "Expressing the Sense of the Senate, Supporting the Proclamation No. 216 dated May 23, 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" and Finding no Cause to revoke the Same." The second one was P.S. Resolution No. 390 (hereinafter, "P.S.R. No. 390") introduced by Senators Pangilinan, Drilon, Hontiveros, Trillanes, Aquino and De Lima which was entitled, "Resolution to Convene Congress in Joint Session and Deliberate on Proclamation No. 216 dated 23 May 2017 entitled, "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao." x x x
9. Discussions were made on the two (2) proposed resolutions during the plenary deliberations of the Senate on 30 May 2017. The first resolution to be discussed was P.S.R. No. 388. During the deliberations, amendments were introduced to it and after the amendments and the debates, P.S.R. No. 388 was voted upon and it was adopted by a vote of seventeen (17) affirmative votes and five (5) negative votes. The amended, substituted and approved version of P.S.R. No. 388, which was then renamed Resolution No. 49, states as follows:x x x xRESOLUTION NO. 49
RESOLUTION EXPRESSING THE SENSE OF THE SENATE NOT TO REVOKE, AT THIS TIME, PROCLAMATION NO. 216, SERIES OF 2017, ENTITLED, "DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO."
WHEREAS, the 1987 Philippine Constitution, Article VII, Section 18, provides that:"... in case of invasion or rebellion, when the public safety requires it, he (President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law...";WHEREAS, President Rodrigo Roa Duterte issued Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao," on May 23, 2017 (the "Proclamation");
WHEREAS, pursuant to his duty under the Constitution, on May 25, 2017, and within forth-eight hours after the issuance of the Proclamation, President Duterte submitted to the Senate his report on the factual and legal basis of the Proclamation;
WHEREAS, on May 29, 2017, the Senators were briefed by the Department of National Defense (DND), the Armed Forces of the Philippines (AFP), and by the National Security Council (NSC) on the factual circumstances surrounding the Proclamation as well as the updates on the situation in Mindanao;
WHEREAS, on the basis of the information received by the Senators, the Senate is convinced that President Duterte declared martial law and suspended the privilege of the writ of habeas corpus in the whole of Mindanao because actual rebe11ion exists and that the public safety requires it;
WHEREAS, the Senate, at this time, agrees that there is no compelling reason to revoke Proclamation No. 216, series of 2017;
WHEREAS, the Proclamation does not suspend the operation of the Constitution, which among others, guarantees respect for human rights and guards against any abuse or violation thereof: Now, therefore, be it
Resolved, as it is hereby resolved, To express the sense of the Senate, that there is no compelling reason to revoke Proclamation No. 216, series of 2017 at this time.
Adopted. x x x"
10. Immediately thereafter, P.S.R. No. 390 was also deliberated upon. After a prolonged discussion, a vote was taken on it and nine (9) senators were in favor and twelve (12) were against. As such, P.S.R. No. 390 calling for a joint session of Congress was not adopted. x x x
11. In the meantime, on 31 May 2017, the House of Representatives acting as a Committee of the Whole was briefed for about six (6) hours by officials of the government led by Executive Secretary Salvador C. Medialdea (hereinafter, "Executive Secretary Medialdea"), Secretary Lorenzana and other security officials on the factual circumstances surrounding the President's declaration of martial law and on the statements contained in the President's Report. During the evening of the same day, a majority of the House of Representatives passed Resolution No. 1050 entitled, "Resolution Expressing the Full Support of the House of Representatives to President Rodrigo Roa Duterte As It Finds No Reason to Revoke Proclamation No. 216 Entitled, 'Declaring A State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao.'" In the same deliberations, it was likewise proposed that the House of Representatives call for a joint session of Congress to deliberate and vote on the President's declaration of martial law and the suspension of the privilege of the writ of habeas corpus. However, after debates, the proposal was not carried. x x x.79
It must be stated that the Senate and the House of Representatives have their own respective Rules, i.e., the Rules of the Senate and the Rules of the House of Representatives. There is no general body of Rules applicable to a joint session of Congress. Based on parliamentary practice and procedure, the Senate and House of Representatives only adopt Rules for a joint session on an ad hoc basis but only after both Houses have already agreed to convene in a joint session through a Concurrent Resolution. The Rules for a Joint Session for a particular purpose become functus officio after the purpose of the joint session has been achieved. Examples of these Rules for a Joint Session are (1) the Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 9, 2016 Election adopted on 24 May 2016; and (2) the Rules of the Joint Session of Congress on Proclamation No. 1959 (Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, Except for Certain Areas) adopted on 09 December 2009. The only time that the Senate and the House of Representatives do not adopt Rules for a joint session is when they convene on the fourth Monday of July for its regular session to receive or listen to the State of the Nation Address of the President and even then, they adopt a Concurrent Resolution to do so.With neither Senate nor the House of Representatives adopting a concurrent resolution, no joint session by the two Houses of the Congress can be had in the present cases.
The usual procedure for having a .ioint session is for both Houses to first adopt a Concurrent Resolution to hold a joint session. This is achieved by either of two (2) ways: (1) both the Senate and the House of Representatives simultaneously adopting the Concurrent Resolution - an example would be when the two (2) Houses inform the President that they are ready to receive his State of the Nation Address or (2) For one (1) House to pass its own resolution and to send it to the other House for the latter's concurrence. Once the joint session of both Houses is actually convened, it is only then that the Senate and the House of Representatives jointly adopt the Rules for the joint session. x x x80 (Emphases supplied.)
Since no one moved for nominal voting on House Resolution No. 1050, then the votes of the individual Representatives cannot be determined. It does not render though the proceedings unconstitutional or invalid.RULE XV
Voting
Sec. 115. Manner of Voting. - The Speaker shall rise and state the motion or question that is being put to a vote in clear, precise and simple language. The Speaker shall say "as many as are in favor, (as the question may be) say 'aye'". After the affirmative vote is counted, the Speaker shall say "as many as are opposed, (as the question may be) say 'nay'".
If the Speaker doubts the result of the voting or a motion to divide the House is carried, the House shall divide. The Speaker shall ask those in favor to rise, to be followed by those against. If still in doubt of the outcome or a count by tellers is demanded, the Speaker shall name one (1) Member from each side of the question to count the Members in the affirmative and those in the negative. After the count is reported, the Speaker shall announce the result.
An abstention shall not be counted as a vote. Unless otherwise provided by the Constitution or by these rules, a majority of those voting, there being a quorum, shall decide the issue.
Sec. 116. Nominal Voting. - Upon motion of a Member, duly approved by one-fifth (115) of the Members present, there being a quorum, nominal voting on any question may be called. In case of nominal voting, the Secretary General shall call, in alphabetical order, the nan1es of the Members who shall state their vote as their names are called.
Sec. 117. Second Call on Nominal Voting. - A second call on nominal voting shall be made to allow Members who did not vote during the first call to vote. Members who fail to vote during the second call shall no longer be allowed to vote.
Section 82. Sessions Open to the Public. - Sessions shall be open to the public. However, when the security of the State or the dignity of the House or any of its Members are affected by any motion or petition being considered, the House may hold executive sessions.Rule XLVII of the Rules of the Senate similarly sets forth the following:
Guests and visitors in the galleries are prohibited from using their cameras and video recorders. Cellular phones and other similar electronic devices shall be put in silent mode.
Section 83. Executive Sessions. - When the House decides to hold an executive session, the Speaker shall direct the galleries and hallways to be cleared and the doors closed. Only the Secretary General, the Sergeantat-Arms and other persons specifically authorized by the House shall be admitted to the executive session. They shall preserve the confidentiality of everything read or discussed in the session. (Emphasis supplied.)
SEC. 126. The executive sessions of the Senate shall be held always behind closed doors. In such sessions, only the Secretary, the Sergeant-at-Arms, and/or such other persons as may be authorized by the Senate may be admitted to the session hall.From afore-quoted rules, it is clear that matters affecting the security of the state are considered confidential and must be discussed and deliberated upon in an executive session, excluding the public therefrom.
SEC. 127. Executive sessions shall be held whenever a Senator so requests it and his petition has been duly seconded, or when the security of the State or public interest so requires. Thereupon, the President shall order that the public be excluded from the gallery and the doors of the session hall be closed.
The Senator who presented the motion shall then explain the reasons which he had for submitting the same.
The minutes of the executive sessions shall be recorded in a separate book. (Emphasis supplied)
SECTION 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sust;rined by the petitioner by reason of the wrongful acts of the respondent.Jurisprudence has laid down the following requirements for a petition for mandamus to prosper:
[T]hus, a petition for mandamus will prosper if it is shown that the subject thereof is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a welldefined, clear and certain right to warrant the grant thereof.It is essential to the issuance of a writ of mandamus that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. Mandamus never issues in doubtful cases. While it may not be necessary that the ministerial duty be absolutely expressed, it must however, be clear. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed.93
The difference between a ministerial and discretionary act has long been established. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.92 (Emphases added.)
Endnotes:
1Rollo (G.R. No. 231671), p. 22.
2Rollo (G.R. No. 231694), p. 27.
3 Entitled "Resolution Expressing the Sense of the Senate, Supporting Proclamation No. 216 dated May 23, 2017, Entitled 'Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao' and Finding No Cause to Revoke the Same." (Rollo [G.R. No. 231671], p. 177).
4 Entitled "Resolution to Convene Congress in Joint Session and Deliberate on Proclamation No. 216 dated 23 May 2017 Entitled 'Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao.'" (Rollo [G.R. No. 231671], pp. 178-181).
5Rollo (G.R. No. 231671), pp. 182-183.
6 The pertinent portions of the resolution reads:
WHEREAS, the 1987 Philippine Constitution, Article VII, Section 18, provides that:"... in case of invasion or rebellion, when the public safety requires it, he (President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law...";WHEREAS, President Rodrigo Roa Duterte issued Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the whole of Mindanao," on May 23, 2017 (the "Proclamation");
WHEREAS, pursuant to his duty under the Constitution, on May 25, 2017, and within forty-eight hours after the issuance of the Proclamation, President Duterte submitted to the Senate his report on the factual and legal basis of the Proclamation;
WHEREAS, on May 29, 2017, the Senators were briefed by the Department of National Defense (DND), the Armed Forces of the Philippines (AFP), and by the National Security Council (NSC) on the factual circumstances surrounding the Proclamation as well as the updates on the situation in Mindanao;
WHEREAS, on the basis of information received by the Senators, the Senate is convinced that President Duterte declared martial law and suspended the privilege of the writ of habeas corpus in the whole of Mindanao because actual rebellion exists and that public safety requires it;
WHEREAS, the Senate, at this time, agrees that there is no compelling reason to revoke Proclamation No. 216, series of 2017;
WHEREAS, the Proclamation does not suspend the operation of the Constitution, which among others, guarantees respect for human rights and guards against any abuse or violation thereof: Now, therefore, be it
Resolved, as it is hereby resolved, To express the sense of the Senate, that there is no compelling reason to revoke Proclamation No. 216, series of 2017, at this time.
7 See excerpts from the deliberations of the Senate on P.S. Resolution No. 390 held on May 30, 2017, attached as Annex "7" of the Consolidated Comment (Ex Abudanti Cautela) of the Senate of the Philippines and Senate President Aquilino "Koko" Pimentel III through the Office of the Senate Legal Counsel (Rollo [G.R. No. 231671], pp. 184-230.)
8 The House of Representatives resolved to constitute itself as a Committee of the Whole House on May 29, 2017.
9Rollo (G.R. No. 231671), pp. 130-131. The full text of said resolution is reproduced here:
WHEREAS, Section 18, Article VII (Executive Department) of the 1987 Constitution states, in pertinent part:"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a Report in person or in writing to the Congress. x x x";WHEREAS, on May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao";
WHEREAS, on May 25, 2017, President Rodrigo Roa Duterte submitted a Report to the House of Representatives relative to Proclamation No. 216 stating, among others:"x x x, after finding that lawless armed groups have taken up arms and committed public uprising against the duly constituted government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a whole. x x x"WHEREAS, on May 31, 2017, the House of Representatives constituted itself into a Committee of the Whole House to consider the Report of the President relative to Proclamation No. 216, and heard the briefing by the heads of departments of the Executive Department;
WHEREAS, during the said briefing and after interpellation, the Members of the House of Representatives determined the sufficiency of the factual basis for the issuance of Proclamation No. 216;
RESOLVED BY THE HOUSE OF REPRESENTATIVES, to express its full support to President Rodrigo Roa Duterte as it finds no reason to revoke Proclamation No. 216, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao."
10See excerpts from the deliberations of the Committee of the Whole House on House Resolution No. 1050 held on May 31, 2017, attached as Annex "8" of the Consolidated Comment (Ex Abudanti Cautela) of the Senate of the Philippines and Senate President Aquilino "Koko" Pimentel III through the Office of the Senate Legal Counsel. (Rollo [G.R. No. 231671], pp. 231-241.)
11Consolidated Comment (Ex Abudanti Cautela) of the Senate of the Philippines and Senate President Aquilino "Koko" Pimentei III through the Office of the Senate Legal Counsel. (Id. at 140.)
12Rollo (G.R. No. 231671), pp. 8-10, 12, 15, 19-20.
13 Id. at 8.
14 Id. at 8-9.
15 Id. at 21.
16 Id at. 12-13.
17 Id. at 14-15.
18 684 Phil. 526 (2012).
19Rollo (G.R. No. 231671), pp. 19-20.
20 Id. at 19.
21Rollo (G.R. No. 231694), pp. 18-21.
22 Id. at 13.
23 Id. at 16.
24 Id at. 17.
25 Id.
26 Id. at 20.
27 Id. at 21.
28 Id. at 25.
29 Id. at 224-225, 279.
30 Id. at 211.
31 Id. at 212-214.
32 Id at 236-240.
33 Id. at 217, citing Pacheco v. Court of Appeals, 389 Phil. 200, 203 (2000).
34 Id. at 228.
35 Id. at 230-231.
36 Id. at 233-234.
37 Id. at 222, citing Unilever Philippines v. Tan, 725 Phil. 486, 493-494 (2014).
38 Id.
39 Id. at 223, citing The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, 589 Phil. 387 (2008).
40 Id. at 223, 266-267.
41 721 Phil. 416, 534-535 (2013).
42See Lozano v. Nograles, 607 Phil. 334, 340 (2009), citing Marbury v. Madison, 1 Cranch 137, 2L. Ed. 60 [1803].
43Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
44 A recent example is Ocampo v. Enriquez, G.R. No. 225973, November 8, 2016.
45Marcos v. Manglapus, 258 Phil. 479, 506-507 (1989); Bengzon, Jr. v. Senate Blue Ribbon Committee, 280 Phil. 829, 840 (1991); Daza v. Singson, 259 Phil. 980, 983 (1983); Francisco, Jr. v. House of Representatives, 460 Phil. 830, 904 (2003).
46 751 Phil. 301, 340 (2015), citing Chief Justice Reynato Puno's separate opinion in Francisco, Jr. v. House of Representatives, id.
47 Id. at 338-339.
48 G.R. No. 207132, December 6, 2016.
49Purisima v. Lazatin, G.R. No. 210588, November 29, 2016, citing Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 170.
50David v. Macapagal-Arroyo, 522 Phil. 705, 756 (2006).
51De Castro v. Judicial and Bar Council, 629 Phil. 629, 680 (2010).
52Legaspi v. Civil Service Commission, 234 Phil. 521, 530 (1987).
53Tañada v. Tuvera, 220 Phil. 422, 430 (1985).
54Purisima v. Lazatin, supra note 49, citing Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 439 (2010).
55Biraogo v. The Philippine Truth Commission of 2010, id., citing Senate of the Philippines v. Ermita, 522 Phil. 1, 29 (2006).
56The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, supra note 39 at 481, citing Didipio Earth Savers' Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, 520 Phil. 457, 471 (2006).
57 RULES OF COURT, Rule 65, Sec. 3.
58Cawad v. Abad, 764 Phil. 705, 722 (2015).
59Araullo v. Aquino III, 737 Phil. 457, 531 (2014).
60 The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, supra note 39 at 486, citing Tañada v. Angara, 338 Phil. 546, 575 (1997).
61 This is implied in De Castro v. Judicial and Bar Council (supra note 51 at 737), wherein we ruled: "On its face, this petition fails to present any justiciable controversy that can be the subject of a ruling from this Court. As a petition for certiorari, it must frrst show as a minimum requirement that the JBC is a tribunal, board or officer exercising judicial or quasi-judicial functions and is acting outside its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. A petition for mandamus, on the other hand, at the very least must show that a tribunal, corporation, board or officer unlawfully neglects the performance of an act which the law specifically enjoins as a duty."
62 Article VII, Section 10(2) of the 1935 Constitution provides, "The President shall be commanderin-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law."
63The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, supra note 39 at 488, citing Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).
64 G.R. Nos. 231658, 231771 and 231774, July 4, 2017.
65 Supra note 50 at 753-754.
66B/Gen. Gudani v. Lt./Gen. Senga, 530 Phil. 398, 421-422 (2006).
67The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on the Ancestral Domain, supra note 39 at 529.
68 The First Regular Session of the 17th Congress was from May 2 to June 2, 2017.
69Bolos v. Bolos, 648 Phil. 630, 637 (2010).
70 686 Phil. 571, 591-592 (2012).
71See Office of the Ombudsman v. De Sahagun, 584 Phil. 119, 127 (2008).
72 Compared to Article VI, Section 23(1) of the 1987 Constitution, which reads, "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war." See also Article VII, Section 4, fourth paragraph, which states:The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.73 272 Phil. 147, 157 (1991).
74 Id. at 169-170.
75 II RECORD, CONSTITUTIONAL COMMISSION 393-394 (July 29, 1986).
76 Id. at 470-477.
77 II RECORD, CONSTITUTIONAL COMMISSION 493-501 (July 31, 1986).
78 Id. at 501-502.
79Rollo (G.R. No. 231671), pp. 136-140.
80 Id. at 156-157.
81Dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981, 986 (2009).
82McGillicuddy v. Commissioner, Department of Agriculture, Food and Rural Resources, 646 A.2d 354, July 22, 1994, citing State v. Hills, 574 A.2d 1357, 1358 (Me. 1990).
83 The Court wrote in the Fortun case, that "President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the same[;]" and "Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated." (Supra note 18 at 556, 558.)
84 See Rule XI, Section 82, The Rules of the House of Representatives.
85Neri v. Senate Committee on Accountability of Public Officers and Investigations, 586 Phil. 135, 162 (2008), citing Almonte v. Vasquez, 314 Phil. 150, 167 (1995); Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).
86Chavez v. Philippine Commission on Good Government, 360 Phil. 133, 162 (1998).
87 SEC. 128. The President as well as the Senators and the officials and employees of the Senate shall absolutely refrain from divulging any of the confidential matters taken up by the Senate, and all proceedings which might have taken place in the Senate in connection with the said matters shall be likewise considered as strictly confidential until the Senate, by two-thirds (2/3) vote of all its Members, decides to lift the ban of secrecy.
88 SEC. 129. Any Senator who violates the provisions contained in the preceding section may, by a two-thirds (2/3) vote of all the Senators, be expelled from the Senate, and if the violator is an official or employee of the Senate, he shall be dismissed.
89 Republic Act No. 6713, enacted on February 20, 1989, cited in Chavez v. Philippine Commission on Good Government, supra note 86.
90 Section 7, Republic Act No. 6713.
91 Sec. 12. Testimony Under Oath. All witnesses at executive sessions or public hearings who testify as to matters of fact shall give such testimony under oath or affirmation. Witnesses may be called by the Committee on its own initiative or upon the request of the petitioner or person giving the information or any person who feels that he may be affected by the said inquiry.
92Velasco v. Belmonte, Jr., G.R. No. 211140, January 12, 2016, 780 SCRA 81, 119 citing Codilla, Sr. v. De Venecia, 442 Phil. 139, 189 (2002).
93University of San Agustin, Inc. v. Court of Appeals, 300 Phil. 819, 830 (1994).
94See Velasco v. Belmonte, Jr., supra note 92 at 123, citing Codilla, Sr. v. De Venecia, supra note 92 at 188-189.
95Jardeleza v. Sereno, 741 Phil. 460, 491 (2014).
96Limkaichong v. Land Bank of the Phils., G.R. No. 158464, August 2, 2016.
LEONEN, J.:
But, this case is not being decided pro hac vice. We are not dismissing the case on the ground that it is moot and academic upon the automatic expiration of the 60-day period for Proclamation No. 216 on July 22, 2017. Rather, the ponencia proposes a doctrine which will possibly result in a deadlock in the future. With the interpretation proposed by the ponencia, two (2) of the four (4) possibilities will result in a constitutional crisis.
Senate House of Representatives One Not to revoke Not to revoke Two Not to revoke Revoke Three Revoke Not to revoke Four Revoke Revoke
The sentences which mention the role of Congress are as follows:ARTICLE VII
Executive Department
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative o(the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safetv requires it.
The Congress, if not in session, shall, within twentv-four hours following such proclamation or suspension, convene in accordance with its rules without anv need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)
First:I agree with the ponencia that this case should be reviewed based on the. interpretative modality adopted in Civil Liberties Union v. The Executive Secretary.1 A reading of the Constitution requires an examination of the text and an understanding of the "intention underlying the provision under consideration."2
"Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress."
Second:
"The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President."
Third:
"Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it."
Fourth:
"The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call."
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.The interpretation of the Constitution based on textual primacy entails a review of the evolution of its provisions. This may involve a comparison between the current text and its counterpart in previous texts.4 However, the interpretation of the Constitution may also include recourse to extrinsic aids to validate the meaning of the text when the latter is capable of multiple meanings.5 The primary duty of this Court in interpreting the Constitution is to reasonably construe its provisions under contemporary conditions so that what has been ratified by the sovereign people is given full effect.6
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.3
Section 5.It was in the Philippine Autonomy Act of 1916 or the Jones Law where the concept of martial law was first introduced into the organic law of the Philippines. The power to suspend the privilege of the writ of habeas corpus was however retained. The relevant text then read:
....
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor, with the approval of the Philippine Commission, wherever during such period the necessity for such suspension shall exist.
Section 21.In the exercise of these powers, legislative concurrence was not necessary. Nevertheless, the Governor General was required to notify the President of the United States when the privilege of the writ of habeas corpus was suspended or when any part of the country was placed under martial law. No other branch of government was authorized to review the action taken by the Governor General except the President of the United States.12
....
[The Governor General of the Philippine Islands] shall be responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Islands, or summon the posse comitatus, or call out the militia or other locally created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the Islands, or any part thereof, under martial law: Provided, That whenever the Governor General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power to modify or vacate the action of the Governor-General. (Emphasis supplied)
In the exercise of his Commander-in-Chief powers, the discretion of the President was paramount and was not subject to review by any of the other branches of the government. The participation of Congress was practically nil. It could only step in when it grants emergency powers to the President pursuant to Article VI, Section 26 of the 1935 Constitution.14 This provided:ARTICLE VII
Executive Department
Section 10.
....
(2) The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.
Section 26. In times of war and other national emergency the Congress may by law authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.The text of Article VII, Section 10, paragraph 2 of the 1935 Constitution was reproduced in Article VII, Section 11 of the 1973 Constitution:
Similar to the 1935 Constitution, the 1973 Constitution appeared to not textually allow any form of intrusion or participation from any of the other branches of the government in the President's exercise of his powers except in cases where there was a vacancy in the office of the President. Legislative concurrence was only deemed necessary when the acting President declared martial law:ARTICLE VII
The President and Vice-President
Section 10. The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.
The 1935 and 1973 Constitutions suggested deference to the President's discretion and wisdom in declaring martial law or in suspending the privilege of the writ of habeas corpus. This changed with the 1987 Constitution, which was cognizant of the aberrant type of martial law imposed by then President Ferdinand Marcos. That part of our history served as the impetus to limit the President's powers as Commander-in-Chief15 by making that power less exclusive.ARTICLE VII
The President and Vice-President
Section 9.
....
The Acting President may not declare martial law or suspend the privilege of the writ of habeas corpus without the prior consent of at least a majority of all the Members of the Batasang Pambansa, or issue any decree, order or letter of instruction while the law-making power of the President is in force. He shall be deemed automatically on leave and the Speaker Pro Tempore shall act as Speaker. While acting as President, the Speaker may not be removed. He shall not be eligible for election in the immediately succeeding election for President and Vice-President. (Emphasis supplied)
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke suclt proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of tlte President, tile Congress may, in the same manner, extend suclt proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.Article VII, Section 18 of the 1987 Constitution and its historical underpinning direct the legislature and the judiciary not to grant full deference to the President's discretion when he chooses to declare martial law or suspend the privilege of the writ of habeas corpus. The two (2) other branches of the government were intended to play an active role to check any possible abuses that may be committed. As it now stands, the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is no longer a power that exclusively pertains to the President.16
The Congress, if not in session, sltall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)
Although the above vests in the President the power to proclaim martial law or suspend the privilege of the writ of habeas corpus, he shares such power with the Congress. Thus:Unlike this Court, whose power of review is activated only upon the filing of an "appropriate proceeding filed by any citizen,"20 Congress is not constrained by any condition precedent before it can act. Congress convenes automatically through a constitutional mandate. Subject to the voting requirements under the Constitution, Congress can revoke the proclamation or suspension at any time, which the President cannot undo.21 It can also extend the proclamation or suspension upon the initiative of the President voting "in the same manner."22It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.19
- The President's proclamation or suspenston ts temporary, good for only 60 days;
- He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress;
- Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and
- The Congress, voting jointly, may revoke or affirm the President's proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted.
FR. BERNAS: We would like a little discussion on that because yesterday we already removed the necessity for concurrence of Congress for the initial imposition of martial law. If we require the Senate and the House of Representatives to vote separately for purposes of revoking the imposition of martial law, that will make it very difficult for Congress to revoke the imposition of martial law and the suspension of the privilege of tlte writ of habeas corpus. That is just thinking aloud. To balance the fact that the President acts unilaterally[,] then the Congress voting as one body and not separately can revoke the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.Clearly, those who participated in the drafting of the Constitution were contemplating not only the voting but likewise the deliberations that would lead to the voting. Thus, Commissioner Monsod mentioned that "the proposal allows Senators to participate fully in the discussions and whether we like it or not, the Senators have very large persuasive powers because of their prestige and national vote."26
MR. MONSOD: In other words, voting jointly.
FR. BERNAS: Jointly, yes.
....
MR. RODRIGO: May I comment on the statement made by Commissioner Bernas? I was a Member of the Senate for 12 years. Whenever a bicameral Congress votes, it is always separately.
For example, bills coming from the Lower House are voted upon by the Members of the House. Then they go up to the Senate and voted upon separately. Even on constitutional amendments, where Congress meets in joint session, the two Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of absorbed by the House considering that the Members of the Senate are completely outnumbered by the Members of the House. So, I believe that whenever Congress acts, it must be the two Houses voting separately.
If the two Houses vote "jointly," it would mean mixing the 24 Senators with 250 Congressmen. This would result in the Senate being absorbed and controlled by the House. This violates the purpose of having a Senate.
FR. BERNAS: I quite realize that that is the practice and, precisely, in proposing this, I am consciously proposing this as an exception to this practice because of the tremendous effect on the nation when the privilege of the writ of habeas corpus is suspended and then martial law is imposed. Since we have allowed the President to impose martial law and suspend the privilege of the writ of habeas corpus unilaterally, we should make it a little more easy for Congress to reverse such actions for the sake of protecting the rights of the people.
....
MR. RODRIGO: Will the Gentleman yield to a question?
MR. MONSOD: Yes, Madam President.
MR. RODRIGO: So, in effect, if there is a joint session composed of 250 Members of the House plus 24 Members of the Senate, the total would be 274. The majority would be one-half plus one.
MR. MONSOD: So, 148 [sic] votes.
MR. RODRIGO: And the poor Senators would be absolutely absorbed and outnumbered by the 250 Members of the House. Is that it?
MR. MONSOD: Yes, that is one of the implications of the suggestion and the amendment is being made nonetheless because there is a higher objective or value which is to prevent a deadlock that would enable the President to continue the full 60 days in case one House revokes and the other House does not.
The proposal also allows the Senators to participate fullv in the discussions and whether we like it or not, the Senators have very large persuasive powers because of their prestige and their national vote.25 (Emphasis supplied)
FR. BERNAS: [W]e should make it a little more easy for Congress to reverse such actions for the sake of protecting the rights of the people.27The present Constitution negates a vision of an authoritarian. Its goal is the establishment of a "democratic and republican" State.28 It cannot be read to allow the emergence of a strongman. Even in situations that may appear to require the derogation of certain rights through the suspension of the privilege of the writ of habeas corpus or the declaration of martial law, our fundamental law requires further deliberation by Congress, which should effectively check on the contingent powers of the President. The representatives of the people, thus, gather as a whole Congress jointly considering the reasons, necessity, and appropriateness of the policies taken.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules even without need of a call.The ponencia thus isolates this sentence:
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.I disagree with this approach. The parts of the Constitution must be construed in its entirety. Each provision should provide the context of meaning.
Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. (Emphasis provided)The phrase "in the same manner" clearly textually refers to the prior sentence, which reads:
The Congress, voting jointly, by a vote of at least a majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.If the ponencia holds, this means that Congress should deliberate in separate chambers first and will only convene jointly as a whole body when it is ready to vote to extend the suspension or the proclamation. Thus, the fact that rebellion and invasion persist and that public safety requires the suspension or proclamation should first be determined separately. Only when both chambers are convinced of the merits to extend the suspension or proclamation will Congress convene jointly. Again, all this confluence of events should happen within the same 60 days-the same 60 days when the House and the Senate separately determine whether they should revoke and then the same 60 days that they will also separately deliberate for the purpose of acting on a proposal of the President to extend.
Endnotes:
1 272 Phil. 147 (1991) [Per CJ. Fernan, En Banc].
2 Id. at 157.
3 Id. at 162.
4David v. Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016 22 [Per J. Leonen, En Banc].
5 Id. at 23.
6See J. Leonen, Dissenting Opinion in Chavez v. Judicial and Bar Council, 709 Phil. 478, 501-523 (2013) [Per J. Mendoza, En Banc].
7 5 Phil. 87 (1905) [Per J. Johnson, En Banc].
8 Id. at 98.
9 Id. at 115.
10 Id. at 91-92.
11 Phil. Bill of 1902, sec. 5, par. 7.
12 Phil. Autonomy Act (1916), sec. 21.
13 Phil. Independence Act (1934), sec. 1.
14 Similarly, the 1987 Constitution in art. VI, sec. 23(2) provides:
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
15Sanlakas v. Reyes, 466 Phil. 482, 521-522 (2004) [Per J. Tinga, En Banc] citing Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
16Fortun v. Macapagal-Arroyo, 684 Phil. 526,557 (2012) [Per J. Abad, En Banc].
17 CONST, art. VII, sec. 18.
18 684 Phil. 526 (2012) [Per J. Abad, En Banc].
19 Id. at 557-558.
20 CONST., art. VII, sec. 18, par. 3.
21 CONST., art. VII, sec. 18, par. 1.
22 CONST., art. VII, sec. 18, par. 1.
23 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. Nos. 231658, 231771, 231774, July 4, 2017 [Per J. Del Castillo, En Banc].
24 CONST., art. VII, sec. 18, par. 3.
25 II Records of the Constitutional Commission, dated July 31, 1986.
26 II Records of the Constitutional Commission, dated July 31, 1986.
27 II Records of the Constitutional Commission, dated July 31, 1986.
28 CONST., art II, sec 1.
29Ponencia, pp. 27-30.
30Ponencia, p. 48.
31 Id.