G.R. No. 231658, December 05, 2017 - REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A. BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners, v. HON.SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO AÑO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, Respondents.; G.R. No. 231771 - EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LINCUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO, CARL ANTHONY D. OLALO, ROY JIM BALANGHIG, RENATO REYES, JR., CRISTINA E. PALABAY, AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY REPRESENTATIVE ARLENE D. BROSAS, KABATAAN PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK VINCENT D. LIM, VENCER MARL CRISOSTOMO, JOVITA MONTES, Petitioners, v. EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT. GENERAL EDUARDO AÑO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents.; G.R. No. 231774 - NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA P. MUTI-MAPANDI, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG) SECRETARY (OFFICER-IN-CHARGE) CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHIEF OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., Respondents.

On July 4, 2017, the Court rendered its Decision finding sufficient factual bases tor the issuance of Proclamation No. 216 and declaring it as constitutional. Petitioners timely filed separate Motions for Reconsideration. The Office of the Solicitor General (OSG) also filed its Comment.

After a careful review of the arguments raised by the parties, we find no reason to reverse our July 4, 2017 Decision.

All three Motions for Reconsideration question two aspects of the July 4, 2017 Decision, i.e., the sufficiency of the tactual bases of Proclamation No. 216 and the parameters used in determining the sufficiency of the factual bases. Petitioners, however, tailed to present any substantial argument to convince us to reconsider our July 4, 2017 Decision.

Sufficiency of the Factual Bases of Proclamation No. 216 has been rendered moot by tile expiration of the said Proclamation.

Section 18, Article VII of the Constitution provides that "the President x x x 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. x x x 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."

From the foregoing, it is clear that the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus is effective for 60 days. As aptly described by Commissioner Monsod, "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."¹ Any extension thereof should be determined by Congress. 1be act of declaring martial law and/or suspending the privilege of the writ of habeas corpus by the President, however, is separate from the approval of the extension of the declaration and/or suspension by Congress. The initial declaration of martial law and/or suspension of the writ of habeas corpus is determined solely by the President, while the extension of the declaration and/or suspension, although initiated by the President, is approved by Congress.

In this case, Proclamation No. 216 issued on May 23, 2017 expired on July 23, 2017. Consequently, the issue of whether there were sufficient factual bases for the issuance of the said Proclamation has been rendered moot by its expiration. We have consistently ruled that a case becomes moot and academic when it "ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value."² As correctly pointed out by the OSG, "the martial law and suspension of the privilege of the writ of habeas corpus now in effect in Mindanao no longer finds basis in Proclamation No. 216"³ but in Resolution of Both Houses No. 11 (RBH No. 11) adopted on July 22, 2017. RBH No. 11 is totally different and distinct from Proclamation No. 216. The former is a joint executive-legislative act while the latter is purely executive in nature.

The decision of the Congress to extend the same is of no moment. The approval of the extension is a distinct and separate incident, over which we have no jurisdiction to review as the instant Petition only pertains to the President's issuance of Proclamation No. 216.

Thus, considering the expiration of Proclamation No. 216 and considering further the approval of the extension of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by Congress, we find no reason to disturb our finding that there were sufficient factual bases for the President's issuance of Proclamation No. 216.

However, although the Motions for Reconsideration are dismissible on the ground of mootness, we deem it prudent to emphasize our discussion on the parameters for determining the sufficiency of factual basis for the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus.

The Constitution requires sufficiency of factual basis, not accuracy.

Petitioners, in essence, posit that the Court is required to determine the accuracy of the factual basis of the President for the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus. To recall, we held that "the parameters for determining the sufficiency of factual basis are as follows: 1) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion."⁴ Moreover, we stated in the assailed Decision that "the phrase 'sufficiency of factual basis' in Section 18, Article VII of the Constitution should be understood as the only test for judicial review of the President's power to declare martial law and suspend the privilege of the writ of habeas corpus."⁵ Requiring the Court to determine the accuracy of the factual basis of the President contravenes the Constitution as Section 18, Article VII only requires the Court to determine the sufficiency of the factual basis. Accuracy is not the same as sufficiency as the former requires a higher degree of standard. As we have explained in our July 4, 2017 Decision:

In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. either should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to 'immediately put an end to the root cause of the emergency'. Possibly, by the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the day as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.

Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible evidence that the President can appraise and to which he can anchor his judgment, as appears to be the case here.

At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J. Velasco, Jr. in Fortun:

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was within their realm of competence, and that a state of emergency has also been declared in Central Mindanao to prevent lawless violence similar to the 'Maguindanao massacre,' which may be an indication that there is a threat to the public safety warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of rebellion. The President is called to act as public safety requires.

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent events prove that the situation had not been accurately reported to him. After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is concerned. x x x

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or inaccuracies in some of the facts stated in the proclamation and written report are not enough reasons for the Court to invalidate the declaration and/or suspension as long as there are other facts in the proclamation and the written Report that support the conclusion that there is an actual invasion or rebellion and that public safety requires the declaration and/or suspension.

In sum, the Court's power to review is limited to the determination of whether the President in declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our review would be limited to an examination on whether the President acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus.⁶ (Emphasis supplied)

This is consistent with our ruling that "the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed."⁷ The standard of proof of probable cause does not require absolute truth. Since "martial law is a matter of urgency x x x the President x x x is not expected to completely validate all the information he received before declaring martial law or suspending the privilege of the writ of habeas corpus."⁸

Notably, out of the several facts advanced by the President as basis for Proclamation No. 216, only five of them were being questioned by the petitioners. However, they were not even successful in their refutation since their "counter-­evidence were derived solely from unverified news articles on the internet, with neither the authors nor the sources shown to have affirmed the contents thereof. It was not even shown that efforts were made to secure such affirmation albeit the circumstances proved futile."⁹ Even granting that the petitioners were successful in their attempt to refute the aforesaid five incidents, there are other facts sufficient to serve as factual basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus.

There is absolutely no basis to petitioners' claim that the Court abdicated its power to review. To be sure, our findings that there was sufficient factual basis for the issuance of Proclamation No. 216 and that there was probable cause, that is, that more likely than not, rebellion exists and that public safety requires the declaration of martial law and suspension of the privilege of the writ of habeas corpus, were reached after due consideration of the facts, events, and information enumerated in the proclamation and report to Congress. The Court did not content itself with the examination only of the pleadings/documents submitted by the parties. In addition, it conducted a closed-door session where it tried to ferret additional information, confirmation and clarification from the resource persons, particularly Secretary of National Defense Delfin Lorenzana and Armed Forces of the Philippines Chief of Staff Eduardo Año. At this juncture, it must be stated that the Court is not even obliged to summon witnesses as long as it satisfies itself with the sufficiency of the factual basis; it is purely discretionary on its part whether to call additional witnesses. In any event, reliance on so-called intelligence reports, even without presentation of its author, is proper and allowed by law.

The Court's acknowledgment of the President's superior data gathering apparatus, and the fact that it has given the Executive much leeway and flexibility, should never be understood as a prelude to surrendering the judicial power to review. The Court never intended to concede its power to verify the sufficiency of factual basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus. The leeway and flexibility accorded to the Executive must be construed in the context of the present set up wherein the declaration of martial law and suspension of the privilege of the writ of habeas corpus are grounded on actual invasion or rebellion, not on imminent threat or danger thereof; as such, time is of the essence for the President to act quickly to protect the country. It is also a recognition of the unassailable fact that as Commander-in­-Chief, the President has access to confidential information. In fact, Fr. Joaquin Bernas even opined that the Court might have to rely on the fact-finding capabilities of the Executive; in turn, the Executive should share its findings with the Court if it wants to convince the latter of the propriety of its action.¹⁰ Moreover, it is based on the understanding that martial law is a flexible concept; that "the precise extent or range of the rebellion [cannot] be measured by exact metes and bounds;"¹¹ that public safety requirement cannot be quantified or measured by metes and bounds; that the Constitution does not provide that the territorial scope or coverage of martial law should be confined only to those areas where the armed public uprising actually transpired; that it will be impractical to expand the territorial application of martial law each time the coverage of actual rebellion expands and in direct proportion therewith; and, that there is always a possibility that the rebellion and other accompanying hostilities will spill over.

As regards the other arguments raised by petitioners, the same are a mere rehash which have already been considered and found to have no merit.

WHEREFORE, petitioners' Motions for Reconsideration are hereby DENIED WITH FINALITY for mootness and lack of merit.

No further pleadings shall be entertained.

Let entry of judgment be made in immediately.

SO ORDERED.

Sereno, C. J., I reiterate my Dissent.
Velasco, Jr., Leonardo-De Castro, Peralta, Martires, Tijam, and Reyes, Jr., JJ., concur.
Carpio, J., See Dissenting Opinion.
Bersamin, J., This is to certify that J. Bersamin left his vote of concurrence.
Perlas-Bernabe, J., I concur in the result to deny the MR. On the merits. I maintain my Separate Opinion.
Leonen, J., I reiterate my earlier dissent in the main opinion.
Jardeleza, J., on leave.
Caguioa, J., See Separate Dissent.
Gesmundo, J., This is to certify that J. Gesmundo left his vote of concurrence.

Endnotes:

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¹ II RECORD, CONSTITUTIONAL COMMISSION 476 (July 30, 1986).

²Agriex Co., Ltd v. Commissioner Villanueva, 742 Phil. 574, 583 (2014).

³ Comment of the Office of the Solicitor General, pp. 7-8; rollo (G.R. No. 231658), Vol. 2, pp. 1419-1420.

⁴ Decision, p. 53; id. at 857.

⁵ Id. at 48; id. at 852.

⁶ Id. at 49-51; id. at 853-855.

⁷ Id. at 53; id. at 857.

⁸ Id. at 54; id. at 858.

⁹ Id. at 63; id. at 867.

¹⁰ Id. at 68; id. at 872.

¹¹ Id. at 72; id. at 876.

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CARPIO, J.:

The Motion for Reconsideration seeks to review the 4 July 2017 Decision of this Court declaring valid Presidential Proclamation No. 216 dated 23 May 2017 which declared a state of martial law and suspended the privilege of the writ of habeas corpus (writ) in the whole Mindanao group of islands. Exercising this Court's power to review the sufficiency of the factual basis of the proclamation of martial law and suspension of the privilege of the writ under the third paragraph of Section 18, Article VII of the 1987 Constitution, this Court sustained the validity of the territorial application of martial law in Marawi City and the whole Mindanao group of islands.

In the 4 July 2017 Decision, the ponente held that there is "no constitutional edict that martial law should be confined only in the particular place where the armed public uprising actually transpired."¹ The ponente gave two reasons for this: (1) as a crime, rebellion has a unique character of absorbing other crimes punishable under the Revised Penal Code and other special laws which may be committed outside the particular place where the actual rebellion transpired; and (2) the prerogative to declare martial law lies with the President, meaning he has a wide leeway and flexibility in determining the territorial scope of martial law.

I disagree with the ponente that the 1987 Constitution does not provide the exact territorial scope or coverage of martial law and that the proclamation of martial law throughout the whole of Mindanao including areas outside of Marawi City is valid. The ponente states:

[M]artial law is a flexible concept; that the "precise extent or range of the rebellion [cannot] be measured by exact metes and bounds;" that public safety requirement cannot be quantified or measured by metes and bounds; that the Constitution does not provide that the territorial scope or coverage of martial law should be confined only to those areas where the armed public uprising actually transpired; that it will be impractical to expand the territorial application of martial law each time the coverage of actual rebellion expands and in direct proportion therewith; and, that there is always a possibility that the rebellion and other accompanying hostilities will spill over.²

The ponente is wrong in holding that the 1987 Constitution does not provide for the exact territorial scope of martial law and that the President has the latitude to determine the territorial scope of martial law and the suspension of the privilege of the writ. Section 18, Article VII of the 1987 Constitution provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress 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. (Emphasis supplied)

Before the President can declare martial law or suspend the privilege of the writ, the 1987 Constitution requires that the President establish the following: (1) the existence of actual rebellion or invasion; and (2) public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress the rebellion or invasion. Needless to say, the presence of an actual rebellion is necessary before the President is authorized by the Constitution to declare martial law in any part of the country.

According to the Revised Penal Code, actual rebellion exists when the following elements concur: (1) there is (a) a public uprising and (b) taking up of arms against the Government; and (2) the purpose of the uprising is either (a) to remove from the allegiance to the Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.³

The letter and intent of the 1987 Constitution is that the territorial scope of the President's proclamation of martial law and the suspension of the privilege of the writ must be confined only to the territory where actual rebellion exists. The absence of an actual rebellion as defined by the Revised Penal Code prohibits the President, acting as Commander-in-Chief, from declaring martial law or suspending the privilege of the writ in any territory of the Philippines. In short, actual rebellion must exist in a particular territory in the Philippines before the President is authorized by the Constitution to declare martial law or suspend the privilege of the writ in a particular territory.

Proclamation No. 216 and the President's Report to Congress do not show the existence of actual rebellion outside of Marawi City. In fact, the Proclamation itself states that the Maute-Hapilon armed fighters in Marawi City intended to remove "this part of Mindanao," referring to Marawi City, from Philippine sovereignty. The Proclamation itself admits that only "this part of Mindanao," referring to Marawi City, is the subject of separation from Philippine sovereignty by the rebels. The President's Report did not mention any other city, province, or territory in Mindanao, other than Marawi City, that had a similar public uprising by a rebel group, an element of actual rebellion. Thus, the President's Report concludes that "based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of lawless armed groups in Marawi City."⁴ To extend the territorial scope of martial law to areas outside of Marawi City where there is no actual rebellion would uphold a clear violation of the letter and intent of the 1987 Constitution.

By way of background, the concept of martial law was first introduced into the organic law of the Philippines through the Philippine Autonomy Act of 1916 or the Jones Law.⁵ Under the law, the Governor-General of the Philippine Islands may place the Islands or any part thereof under martial law in case of rebellion or imminent danger thereof and public safety requires it:

Section 21.

x x x x

[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)

With the passage of the Tydings-McDuffie Act or the Philippine Independence Act, the 1935 Constitution was subsequently enacted. Section 10(2), Article VII of the 1935 Constitution, as amended, provided for the power of the President to place the country or any part thereof under martial law in case of rebellion or imminent danger thereof and public safety requires it:

ARTICLE VII
Executive Department

Section 10. x x x x

(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. (Boldfacing and underscoring supplied)

The text of paragraph 2, Section 10, Article VII of the 1935 Constitution was reproduced m Section 9, Article VII of the 1973 Constitution:

ARTICLE VII
The President and Vice-President

Section 9. 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. (Emphasis supplied)

As I stated in my Dissenting Opinion to the 4 July 2017 Decision, the 1987 Constitution gives the President the discretion and prerogative to decide how to deal with an actual rebellion. The President may either call out the armed forces to suppress the rebellion or he may declare martial law, with or without the suspension of the privilege of the writ.⁶ However, he does not have a wide leeway in determining the territorial scope of martial law. Section 18, Article VII of the 1987 Constitution is clear that martial law must be founded on two factual bases: (1) the existence of actual rebellion or invasion; and (2) public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress rebellion or invasion. These two factual bases cannot be stretched to mean that martial law can be proclaimed or the privilege of the writ may be suspended in those areas outside of Marawi City where "there is [a] possibility that the rebellion and other accompanying hostilities will spill over"⁷ (as held by the ponente). The President cannot proclaim martial law or suspend the privilege of the writ in areas outside ofMarawi City simply because of the possibility that the rebels might escape to areas outside of Marawi City.

Indeed, the Jones Law,⁸ the 1935 Constitution, and the 1973 Constitution seemed to have conferred to the President the absolute prerogative to determine the territorial scope of martial law because of the phrase "the Philippines or any part thereof." However, this seeming absolute discretion must also be interpreted in relation to the legal reality then that the "imminent danger" of rebellion was a valid ground to declare martial law. In other words, the three organic laws expressly empowered the President to place the entire country under martial law, even if the rebellion was limited to a particular locality, because of the "imminent danger" that it would spread or spill over outside the place of actual rebellion.

This no longer holds true under the 1987 Constitution. With the intentional removal of "imminent danger" as a ground to declare martial law, the President cannot proclaim martial law or suspend the privilege of the writ because of a possibility of a "spill-over of hostilities" outside the place of actual rebellion. As I stated in my Dissenting Opinion:

Moreover, imminent danger or threat of rebellion or invasion is not sufficient. The 1987 Constitution requires the existence of actual rebellion or actual invasion. "Imminent danger" as a ground to declare martial law or suspend the privilege of the writ, which was present in both the 1935 and 1973 Constitutions, was intentionally removed in the 1987 Constitution. By the intentional deletion of the words "imminent danger" in the 1987 Constitution, the President can no longer use imminent danger of rebellion or invasion as a ground to declare martial law or suspend the privilege of the writ. Thus, the President cannot proclaim martial law or suspend the privilege of the writ absent an actual rebellion or actual invasion. This is the clear, indisputable letter and intent of the 1987 Constitution.⁹

x x x x

x x x. The fear that the rebellion in Marawi City will spread to other areas in Mindanao is a mere danger or threat and may not even amount to an imminent danger or threat. In any event, to allow martial law outside Marawi City on the basis of an imminent danger or threat would unlawfully reinstate the ground of "imminent danger" of rebellion or invasion, a ground that was intentionally removed from the 1987 Constitution.¹⁰ (Emphasis supplied)

To validate the President's action of declaring martial law outside of Marawi City on the basis of a "spill-over of hostilities" would unlawfully reinstate "imminent danger," a ground not present in the 1987 Constitution, as a ground to declare martial law or suspend the privilege of the writ. To reiterate, the President must be confined strictly to the existence of the two elements under Section 18, Article VII of the 1987 Constitution of actual rebellion or invasion and the satisfaction of the public safety requirement for the declaration of martial law and the suspension of the privilege of the writ in any part of the Philippines. The two elements under the Constitution are only present in Marawi City and are absent in geographic areas of Mindanao outside of Marawi City.

ACCORDINGLY, I vote to PARTIALLY GRANT the Motion for Reconsideration in G.R. Nos. 231658, 231771, and 231774, and DECLARE Proclamation No. 216 UNCONSTITUTIONAL as to geographic areas of Mindanao outside of Marawi City, for failure to comply with Section 18, Article VII of the 1987 Constitution. Proclamation No. 216 is valid, effective, and CONSTITUTIONAL only within Marawi City.

Endnotes:

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¹ Decision, p. 73.

² Resolution, p. 7.

³Ladlad v. Velasco, 551 Phil. 313, 329 (2007).

⁴ Decision, p. 7.

⁵ See Justice Leonen's Concurring and Dissenting Opinion in Padilla v. Congress of the Philippines, G.R. Nos. 231671 and 231694, 25 July 2017.

⁶ Justice Antonio T. Carpio's Dissenting Opinion, p. 14.

⁷ Resolution, p. 7.

⁸ Under the Jones Law, it is the Governor-General who may place the Philippines or any part thereof under martial law. The President of the United States shall have the power to modify or vacate the action of the Governor-General.

⁹ Justice Antonio T. Carpio's Dissenting Opinion, p. 19.

¹⁰ Id. at 23.

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CAGUIOA, J.:

I maintain my dissent.

I maintain that no sufficient factual basis was shown for the declaration of martial law and suspension of the writ of habeas corpus over the entire Mindanao. As well, I maintain that the Court's review under Section 18 to determine the sufficiency of factual basis necessarily requires an examination of the veracity and accuracy of the factual basis offered by the Executive.

To reiterate, Section 18, being a neutral and straightforward fact-­checking mechanism, serves the functions of (1) preventing the concentration in one person - the Executive - of the power to put in place a rule that significantly implicates civil liberties, (2) providing the sovereign people a forum to be informed of the factual basis of the Executive's decision, and (3) at the very least, assuring the people that a separate department independent of the Executive may be called upon to determine for itself the propriety of the declaration of martial law and suspension of the privilege of the writ.¹

This is what is owed to the sovereign people in this case.

The petition for the review of the sufficiency of factual basis of Proclamation No. 216 is not mooted by its expiration.

In International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Phils.),² the Court explained:

An action is considered 'moot' when it no longer presents a justiciable controversy because the issues involved have become academic or dead, or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. Time and again, courts have refrained from even expressing an opinion in a case where the issues have become moot and academic, there being no more justiciable controversy to speak of, so that a determination thereof would be of no practical use or value.

Nonetheless, 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 the 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. x x x³

Guided by these exceptions, the Court had ruled on the case and ultimately enjoined the field testing of Bt talong despite its termination. Similarly, the Court ruled on the constitutionality of the Memorandum of Agreement on the Ancestral Domain Aspect (MOA-AD) of the GRP-MILF Tripoli Agreement on Peace of 2001 despite the government's claim of satisfaction of the reliefs prayed for in Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP),⁴ certain provisions in the national budget despite the end of the fiscal year for which the law was passed in Belgica v. Ochoa,⁵ and a declaration of a state of emergency and the corresponding implementing General Order despite their having been lifted in David v. Macapagal-­Arroyo,⁶ among the catena of cases where the issue of mootness was raised.

This case falls within the second, third, and fourth exceptions. First, the state of martial law and suspension of the writ of habeas corpus is an exception to the normal workings of our system of government and involves paramount public interest in view of the attendant curtailment of civil liberties. Second, the issues raised by the petitions require formulation of controlling principles to guide the bench, the bar and the public, more specifically, the agents of the Executive department, the police, and the military, with respect to the nature and threshold of evidence required in a Section 18 petition, and the scope of and standards in the implementation of martial law, among others. Lastly, the events (e.g., skirmishes, kidnappings, explosions) that led to the issuance of Proclamation No. 216 are neither rare nor exceptional so as to foreclose the possibility of repetition.

The first exception is irrelevant in a Section 18 review because its function is not to determine a grave violation of the Constitution. In this regard, I had summarized in my Dissent to the July 4, 2017 Decision the essence of the Court's duty to review under Section 18 is, thus:

x x x to embrace and actively participate in the neutral, straightforward, apolitical fact-checking mechanism that is mandated by Section 18, Article VII of the Constitution, and accordingly determine the sufficiency of the factual basis of the declaration of martial law or suspension of the privilege of the writ of habeas corpus. The Court, under Section 18, steps in, receives the submissions relating to the factual basis of the declaration of martial law or suspension of the privilege of the writ, and then renders a decision on the question of whether there is sufficient factual basis for the declaration of martial law or suspension of the privilege of the writ. Nothing more.

To be sure, the Court will even ascribe good faith to the Executive in its decision to declare martial law or suspend the privilege of the writ of habeas corpus. But that does not diminish the Court's duty to say, if it so finds, that there is insufficient factual basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus. That is the essence of the Court's duty under Section 18.

In discharging this duty, the Court does not assign blame, ascribe grave abuse or determine that there was a culpable violation of the Constitution. It is in the courageous and faithful discharge of this duty that the Court fulfills the most important task of achieving a proper balance between freedom and order in our society. It is in this way that the Court honors the sacrifice of lives of the country's brave soldiers - that they gave their last breath not just to suppress lawless violence, but in defense of freedom and the Constitution that they too swore to uphold.⁷ (Emphasis supplied)

And:

Since Section 18 is a neutral straightforward fact-checking mechanism, any nullification necessarily does not ascribe any grave abuse or attribute any culpable violation of the Constitution to the Executive. Meaning, the fact that Section 18 checks for sufficiency and not mere arbitrariness does not, as it was not intended to, denigrate the power of the Executive to act swiftly and decisively to ensure public safety in the face of emergency. Thus, the Executive will not be exposed to any kind of liability should the Court, in fulfilling its mandate under Section 18, make a finding that there were no sufficient facts for the declaration of martial law or the suspension of the privilege of the writ.⁸ (Emphasis supplied)

The veracity and accuracy of the factual basis offered by the Executive is inextricably linked to the review of its sufficiency.

This appears to be the where the case turns. The ponencia, in drawing distinctions between a review of sufficiency and accuracy, adverts to Justice Velasco's Dissenting Opinion in Fortun v. Macapagal-Arroyo⁹:

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was within their realm of competence, and that a state of emergency has also been declared in Central Mindanao to prevent lawless violence similar to the "Maguindanao massacre," which may be an indication that there is a threat to public safety warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of rebellion. The President is called to act as public safety requires.¹⁰ (Emphasis supplied)

This justification misses the mark. Since the function of the Court's Section 18 review is NOT to ascribe fault to the Executive in declaring martial law or suspending the writ of habeas corpus, but to determine the sufficiency of the factual basis for the proclamation of martial law - an anomalous situation that directly affects the operations of government and the enjoyment of the people of their civil liberties within the scope of its implementation - with a view of either upholding or nullifying the same, a finding of sufficient factual basis should necessarily mean sufficient truthful, accurate, or at the very least, credible, factual basis. This is because the Court's judgment is not temporally-bound to the time the proclamation was issued - the ultimate question not being the liability of the Executive for the proclamation or suspension, but whether the abnormal state of affairs should continue. The transitory nature of the actions of the legislative and judicial branches was discussed by the framers, thus:

MR. BENGZON: And if the Supreme Court promulgates its decision ahead of Congress, Congress is foreclosed because the Supreme Court has 30 days within which to look into the factual basis. If the Supreme Court comes out with the decision one way or the other without Congress having acted on the matter, is Congress foreclosed?

FR. BERNAS: The decision of the Supreme Court will be based on its assessment of the factual situation. Necessarily, therefore, the judgment of the Supreme Court on that is a transitory judgment because the factual situation can change. So, while the decision of the Supreme Court may be valid at that certain point of time, the situation may change so that Congress should be authorized to do something about it.

MR. BENGZON: Does the Gentleman mean the decision of the Supreme Court then would just be something transitory?

FR. BERNAS: Precisely.

MR. BENGZON: It does not mean that if the Supreme Court revokes or decides against the declaration of martial law, the Congress can no longer say, "no, we want martial law to continue" because the circumstances can change.

FR. BERNAS: The Congress can still come in because the factual situation can change.

MR. BENGZON: Thank you, Madam President.¹¹ (Emphasis supplied)

In the same manner that the Congress has the latitude to extend martial law in the event that factual circumstances change despite a theoretical antecedent contrary judgment on the part of the Court, the latter, in parity of reasoning, can and should declare the proclamation as having been issued without sufficient basis if the facts relied upon by the Executive in the proclamation have been shown to be false or inaccurate during the pendency of the Court's review. As a consequence, the proclamation or suspension is nullified, and the normal workings of government shall be restored. This is the only reasonable interpretation.

Therefore, I harken back to my previous discussion on this point:

As well, in the same manner that the Court is not limited to the four comers of Proclamation No. 216 or the President's report to Congress, it is similarly not temporally bound to the time of proclamation to determine the sufficiency of the factual basis for both the existence of rebellion and the requirements of public safety. In other words, if enough of the factual basis relied upon for the existence of rebellion or requirements of public safety are shown to have been inaccurate or no longer obtaining at the time of the review to the extent that the factual basis is no longer sufficient for the declaration of martial law or suspension of the privilege of the writ, then there is nothing that prevents the Court from nullifying the proclamation.

In the same manner, if the circumstances had changed enough to furnish sufficient factual basis at the time of the review, then the proclamation could be upheld though there might have been insufficient factual basis at the outset. A contrary interpretation will defeat and render illusory the purpose of review.

To illustrate, say a citizen files a Section 18 petition on day 1 of the proclamation, and during the review it was shown that while sufficient factual basis existed at the outset (for both rebellion and public necessity) such no longer existed at the time the Court promulgates its decision at say, day 30 then it makes no sense to uphold the proclamation and allow the declaration of martial law or suspension of the privilege of the writ to continue for another thirty days, assuming it is not lifted earlier.

Conversely, if it was shown that while there was insufficient factual basis at the outset, circumstances had changed during the period of review resulting in a finding that there is now sufficient factual basis for the declaration of martial law or suspension of the privilege of the writ, then the Court is called upon to uphold the proclamation.¹²

The ponencia pushes a false dichotomy of "accuracy" versus "sufficiency" that reeks of avoidance. In a court of law, the judge deals with evidence. As defined, evidence is the means of ascertaining in a judicial proceeding the truth respecting a matter of fact.¹³ Inescapably, therefore, truth, veracity, and accuracy are indispensable qualities of the evidence that the Court shall accept to support a finding of a certain fact - in this case, the existence of the twin requirements for the declaration and suspension.

Otherwise, if any fact offered by a party is acceptable despite being false or inaccurate, the laying down of the nature and quantum of evidence required in a Section 18 review becomes illusory. Furthermore, a finding of sufficiency of factual basis from the Court that does not carry with it what would otherwise be the silent premise in every other judicial proceeding that the evidence relied upon is true, accurate, or at the very least "credible"¹⁴ falls short of its duty under Section 18 - which is, again, to determine not whether the Executive committed error in issuing the declaration or suspension but whether there is sufficient factual basis to warrant the continuation of the abnormal state of affairs that such declaration or suspension brings about. I reiterate my discussion on this point:

The use of the word "sufficiency," signals that the Court's role in the neutral straightforward fact-checking mechanism of Section 18 is precisely to check post facto, and with the full benefit of hindsight, the validity of the declaration of martial law or suspension of the privilege of the writ, based upon the presentation by the Executive of the sufficient factual basis therefor (i.e., evidence tending to show the requirements of the declaration of martial law or suspension of the privilege of the writ: actual rebellion or invasion, and requirements of public safety). This means that the Court is also called upon to investigate the accuracy of the facts forming the basis of the proclamation - whether there is actual rebellion and whether the declaration of martial law and the suspension of the privilege of the writ are necessary to ensure public safety.

For truly, without ascertaining the accuracy of the factual basis offered for the proclamation, the Court is sending a perverse message that the Executive, in this case and in future Section 18 reviews that may come before it, may offer any and all kinds of "factual" bases, without regard to accuracy. It is truly baffling how the majority's concession of the Executive's superior "competence," "logistical machinery," and "superior data gathering apparatus" does not equate to the Court imposing upon the Executive the obligation to produce before the Court sufficient evidence that is true, accurate, or at the very least, credible. This superiority must lead the Court to raise the bar instead of lower it. Else, it leads precisely to a nugatory Court finding I already adverted to:

x x x The Executive needs to reveal so much of its factual basis for the declaration of martial law and suspension of the privilege of the writ so that it produces in the mind of the Court the conclusion that the declaration and suspension meets the requirements of the Constitution. Otherwise, the Court's finding of sufficiency becomes anchored upon bare allegations, or silence. In any proceeding, mere allegation or claim is not evidence; neither is it equivalent to proof.¹⁵ (Emphasis supplied)

The holding that the review of sufficiency of factual basis does not involve an examination of the accuracy of factual basis is but one degree removed from allowing the use of presumptions of constitutionality and regularity in a Section 18 review, which, as well, I have already described as incompatible to the nature of the exercise:

x x x The presumption disposes of the need to present evidence - which is totally opposite to the fact-checking exercise of Section 18; to be sure, reliance on the presumption in the face of an express constitutional requirement amounts to a failure by the Executive to show sufficient factual basis, and judicial rubberstamping on the part of the Court.¹⁶ (Emphasis supplied)

Again, and in fine, a Section 18 review functions not to fix blame, but to be an avenue for the restoration of the normal workings of government and the enjoyment of individual liberties should there be showing of insufficient factual basis.¹⁷ In a democracy like ours, a ruling that directly affects these terminal values requires no less than accuracy and truth. The Court must uphold this standard.

Therefore, I vote to grant the Motions for Reconsideration and to declare the proclamation of martial law over the entire Mindanao as having been issued without sufficient factual basis, and the proclamation can be justified only in Lanao del Sur, Maguindanao, and Sulu.

Endnotes:

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¹J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, p. 5.

² 774 Phil. 508 (2015) [En Banc, Per J. Villarama, Jr.].

³ Id. at 577-578.

⁴ 589 Phil. 387 (2008) [En Banc, Per J. Carpio Morales].

⁵ 721 Phil. 416 (2013) [En Banc, Per J. Perlas-Bernabe].

⁶ 522 Phil. 705 (2006) [En Banc, Per J. Sandoval-Gutierrez].

⁷J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 24.

⁸ Id. at 11.

⁹ 684 Phil. 526, 620-631 (2012) [En Banc, Per J. Abad].

¹⁰ Id. at 629.

¹¹ II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 494 (1986).

¹²J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 12.

¹³ Rule 128, Section 1. Evidence defined. - Evidence is the means, sanctioned by these Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

¹⁴ MR. NATIVIDAD. And the Commissioner said that in case of subversion, sedition or imminent danger of rebellion or invasion, that would be the causus beli for the suspension of the privilege of the writ of habeas corpus. But I wonder whether or not the Commissioner would consider intelligence reports of military officers as evidence of imminent danger of rebellion or invasion because this is usually the evidence presented.

MR. PADILLA. Yes, as credible evidence, especially if they are based on actual reports and investigation of facts that might soon happen.

MR. NATIVIDAD. Then the difficulty here is, of course, that the authors and the witnesses in intelligence reports may not be forthcoming under the rule of classified evidence or documents. Does the Commissioner still accept that as evidence?

MR. PADILLA. It is for the President as commander-in-chief of the Armed Forces to appraise these reports and be satisfied that the public safety demands the suspension of the writ After all, this can also be raised before the Supreme Court as in the declaration of martial law because it will no longer be, as the former Solicitor General always contended, a political issue. It becomes now a justiciable issue. The Supreme Court may even investigate the factual background in support of the suspension of the writ or the declaration of martial law. (Emphasis supplied) II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 470 (1986).

¹⁵J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 8.

¹⁶J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 8.

¹⁷ "[I]f the Executive satisfies the requirement of showing sufficient factual basis, then the proclamation is upheld, and the sovereign people are either informed of the factual basis or assured that such has been reviewed by the Court. If the Executive fails to show sufficient factual basis, then the proclamation is nullified and the people are restored to full enjoyment of their civil liberties." J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 11.