EN BANC
G.R. No. 231658, July 04, 2017
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJAÑO, 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 MARI CRISOSTOMO, JOVITA MONTES, Petitioners, v. PRESIDENT RODRIGO DUTERTE, 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.
D E C I S I O N
DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding 60 days, 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.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on May 25, 2017, a written Report on the factual basis of Proclamation No. 216.
WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when the public safety requires it, he (the 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 x x x';
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that 'the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives';
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.
Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years, we have witnessed the perpetration of numerous acts of violence challenging the authority of the duly constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured prominently in all these, namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which have been unleashing havoc in Mindanao, however, confronted the government operation by intensifying their efforts at sowing violence aimed not only against the government authorities and its facilities but likewise against civilians and their properties. As narrated in the President's Report:
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government. Through these groups' armed siege and acts of violence directed towards civilians and government authorities, institutions and establishments, they were able to take control of major social, economic, and political foundations of Marawi City which led to its paralysis. This sudden taking of control was intended to lay the groundwork for the eventual establishment of a DAESH wilayat or province in Mindanao.In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City which impelled him to declare a state of martial law and suspend the privilege of writ of habeas corpus, to wit:
Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by the DAESH, as evidenced by, among others, its publication of a video footage declaring its allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and logistical support to the Maute Group.
The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives.2
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about undue constraints and difficulties to the military and government personnel, particularly in the performance of their duties and functions, and untold hardships to the civilians, viz.:
The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government.
There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments.4
Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from the city is likewise hindered.The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in Mindanao, and the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions once Marawi City falls under the control of the lawless groups.
The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of the entire Island of Mindanao.5
The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages.The President ended his Report in this wise:
Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity.6
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.7In addition to the Report, representatives from the Executive Department, the military and police authorities conducted briefings with the Senate and the House of Representatives relative to the declaration of martial law.
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that the Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance with the law. The Senate hereby supports fully Proclamation No. 216 and finds no compelling reason to revoke the same.9The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives likewise issued House Resolution No. 105010 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO 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'".
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.During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph of Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.88
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went about reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed during the authoritarian years. The new formula included revised grounds for the activation of emergency powers, the manner of activating them, the scope of the powers, and review of presidential action.94 (Emphasis supplied)To recall, the Court held in the 1951 case of Montenegro v. Castañeda95 that the authority to decide whether there is a state of rebellion requiring the suspension of the privilege of the writ of habeas corpus is lodged with the President and his decision thereon is final and conclusive upon the courts. This ruling was reversed in the 1971 case of Lansang where it was held that the factual basis of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus is not a political question and is within the ambit of judicial review.96 However, in 1983, or after the declaration of martial law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted to Montenegro. According to the Supreme Court, the constitutional power of the President to suspend the privilege of the writ of habeas corpus is not subject to judicial inquiry.98
MR. SUAREZ. Thank you, Madam President.To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus within the ambit of judicial review, it also relaxed the rule on standing by allowing any citizen to question before this Court the sufficiency of the factual basis of such proclamation or suspension. Moreover, the third paragraph of Section 18, Article VII veritably conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis of said proclamation or suspension. It further designated this Court as the reviewing tribunal to examine, in an appropriate proceeding, the sufficiency of the factual basis and to render its decision thereon within a limited period of 30 days from date of filing.
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 basis 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.100
The executive power is vested in the President of the Philippines elected by the people for a six-year term with no reelection for the duration of his/her life. While traditional powers inherent in the office of the President are granted, nonetheless for the first time, there are specific provisions which curtail the extent of such powers. Most significant is the power of the Chief Executive to suspend the privilege of the writ of habeas corpus or proclaim martial law.f) To interpret "appropriate proceeding" as filed under Section 1 of Article VIII would be contrary to the intent of the Constitution.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial law for more than eight years and the suspension of the privilege of the writ even after the lifting of martial law in 1981. The new Constitution now provides that those powers can be exercised only in two cases, invasion or rebellion when public safety demands it, only for a period not exceeding 60 days, and reserving to Congress the power to revoke such suspension or proclamation of martial law which congressional action may not be revoked by the President. More importantly, the action of the President is made subject to judicial review, thereby again discarding jurisprudence which render[s] the executive action a political question and beyond the jurisdiction of the courts to adjudicate.
For the first time, there is a provision that the state of martial law does not suspend the operation of the Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the privilege of the writ. Please forgive me if, at this point, I state that this constitutional provision vindicates the dissenting opinions I have written during my tenure in the Supreme Court in the martial law cases.101
MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress will be able to revoke such proclamation.c) Re-examination of the Court's pronouncement in Fortun v. President Macapagal-Arroyo.
MR. RAMA. Yes.
MS. QUESADA. But now, if they cannot meet because they have been arrested or that the Congress has been padlocked, then who is going to declare that such a proclamation was not warranted?
x x x x
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A petition for a writ of habeas corpus, if the Members are detained, can immediately be applied for, and the Supreme Court shall also review the factual basis. x x x107
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. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.109By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same to Congress as well as, abdicated from its bounden duty to review. Worse, the Court considered itself just on stand-by, waiting and willing to act as a substitute in case Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set aside in this proceeding.111
x x x x
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis. x x x.110
FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the military's assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the State.126A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies . . .The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case of Aquino v. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theater of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theater of war.124
x x x x
FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial law; meaning, limiting it to martial law as it has existed in the jurisprudence in international law, that it is a law for the theater of war. In a theater of war, civil courts are unable to function. If in the actual theater of war civil courts, in fact, are unable to function, then the military commander is authorized to give jurisdiction even over civilians to military courts precisely because the civil courts are closed in that area. But in the general area where the civil courts are open then in no case can the military courts be given jurisdiction over civilians. This is in reference to a theater of war where the civil courts, in fact, are unable to function.
MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical area.
FR. BERNAS. That is correct.
MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief.
FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The understanding here is that the phrase 'nor authorize the conferment of jurisdiction on military courts and agencies over civilians' has reference to the practice under the Marcos regime where military courts were given jurisdiction over civilians. We say here that we will never allow that except in areas where civil courts are, in fact, unable to function and it becomes necessary for some kind of court to function.125
MR. PADILLA. x x xThe foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a priori in the President's choice of extraordinary powers.
We all agree with the suspension of the writ or the proclamation of martial law should not require beforehand the concurrence of the majority of the Members of the Congress. However, as provided by the Committee, the Congress may revoke, amend, or shorten or even increase the period of such suspension.134
x x x x
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 Members of Congress because the provision says 'in case of actual invasion or rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino de Castro said, there is a 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. x x x So the requirement of an initial concurrence of the majority of all Members of the Congress in case of an invasion or rebellion might be impractical as I can see 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 x135
x x x x
MR. SUAREZ. Thank you.
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.136
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.
x x x x
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 mentioned, that there is an exclusive right to determine the factual basis because the paragraph being 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. x x x
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. Ido not believe it is expediency when one is trying to protect the country in the event of an invasion or a rebellion.137
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected speech. The theory is that '[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes entirely on the ground that they might be applied to Rarties not before the Court whose activities are constitutionally protected.146 "Such invalidation would constitute a departure from the usual requirement of 'actual case and controversy' and permit decisions to be made in a sterile abstract context having no factual concreteness."147
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.
x x x x
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.' x x x145
As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of common intelligence must necessarily guess at its meaning and differ as to its application.' It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the words that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 55, which it cited by way of reference in its Whereas clauses.
But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegal for 'three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by.' Clearly, the ordinance imposed no standard at all 'because one may never know in advance what annoys some people but does not annoy others.'
Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on its face. It is to be distinguished, however, from legislation couched in imprecise language - but which nonetheless specifies a standard though defectively phrased - in which case, it may be 'saved' by proper construction.151
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification.153In other words, the President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may also be a prelude to a possible future exercise of the latter powers, as in this case.
Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. As the new Civil Code puts it: 'When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.' The above provision of the Civil Code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties, and affords no protection. This doctrine admits of qualifications, however. As the American Supreme Court stated: 'The actual existence of a statute prior to such a determination [of constitutionality], is an operative fact and may have consequences which cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to the invalidity may have to be considered in various aspects, - with respect to particular regulations, individual and corporate, and particular conduct, private and official.However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would repulse any challenge to acts performed during the effectivity of martial law or suspension of the privilege of the writ of habeas corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion of public safety, when evidence shows otherwise.
The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the measure for the validity of legislative or executive acts. Clearly then, neither the legislative nor the executive branch, and for that matter much less, this Court, has power under the Constitution to act contrary to its terms. Any attempted exercise of power in violation of its provisions is to that extent unwarranted and null.
The growing awareness of the role of the judiciary as the governmental organ which has the final say on whether or not a legislative or executive measure is valid leads to a more appreciative attitude of the emerging concept that a declaration of nullity may have legal consequences which the more orthodox view would deny. That for a period of time such a statute, treaty, executive order, or ordinance was in 'actual existence' appears to be indisputable. What is more appropriate and logical then than to consider it as 'an operative fact?' (Emphasis supplied)159
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer that its power was 'merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. More specifically, the Court said that its power was not 'even comparable with its power over civil or criminal cases elevated thereto by appeal . . . in which cases the appellate court has all the powers of the court of origin,' nor to its power of quasi-judicial administrative decisions where the Court is limited to asking whether 'there is some evidentiary basis' for the administrative finding. Instead, the Court accepted the Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.'164Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for judicial review based on th determination of the sufficiency of the factual bases, has in fact done away with the test of arbitrariness as provided in Lansang.
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.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 intelligencd 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.
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.168
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident, everybody knows what happened. Would the Committee consider that an actual act of rebellion?Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of the RPC. To give it a different definition would not only create confusion but would also give the President wide latitude of discretion, which may be abused - a situation that the Constitution seeks to prevent.174
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article 135. x x x173
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.Thus, for rebellion to exist, the following elements must be present, to wit: "(1) there is a (a) public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising or movement 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."175
1. That there be (a) public uprising, and (b) taking up arms against the Government; andPetitioners concede that there is an armed public uprising in Marawi City.179 However, they insist that the armed hostilities do not constitute rebellion in the absence of the element of culpable political purpose, i.e., the removal from the allegiance to the Philippine 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.
2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said Government or its laws the territory of the Philippines or any part thereof, or 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 or prerogatives.178
x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly burden and effectively incapacitate her from exercising such powers.c) Inaccuracies, simulations, falsities, and hyperboles.
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof required for convicting an accused charged with a criminal offense. x x x
x x x x
Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish the existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the writ amounts to an excessive restriction on 'the President's power to act as to practically tie her hands and disable her from effectively protecting the nation against threats to public safety.'
Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the President in exercising her emergency powers, as it requires proof greater than preponderance of evidence although not beyond reasonable doubt.
Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is demanded for a lawful declaration of martial law.
x x x x
Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and impose martial law or suspend the writ unreasonably curtails the President's emergency powers.
Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of her emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.
Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined as a 'set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.
In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.
Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a declaration of martial law. x x x230
However, the so-called 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. As the Court has consistently ruled, news articles are hearsay evidence, twice removed, and are thus without any probative value, unless offered for a purpose other than proving the truth of the matter asserted.237 This pronouncement applies with equal force to the Cullamat Petition which likewise submitted online news articles238 as basis for their claim of insufficiency of factual basis.
FACTUAL STATEMENTS COUNTER-EVIDENCE (1) that the Maute group attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among several locations. As of 0600H of 24 May 2017, members of the Maute Group were seen guarding the entry gates of the Amai Pakpak Hospital and that they held hostage the employees of the Hospital and took over the PhilHealth office located thereat (Proclamation No. 216 and Report); Statements made by:
(a) Dr. Amer Saber, Chief of the Hospital
(b) Health Secretary Paulyn Ubial;
(c) PNP Spokesperson Senior Supt. Dionardo Carlos;
(d) AFP Public Affairs Office Chief Co. Edgard Arevalo; and
(e) Marawi City Mayor Majul Gandamra denying that the hospital was attacked by the Maute Group citing online news articles of Philstar, Sunstar, Inquirer, and Bombo Radyo.232 2. that the Maute Group ambushed and burned the Marawi Police Station (Proclamation No. 216 and the Report); Statements made by PNP Director General Ronald dela Rosa and Marawi City Mayor Majul Gandamra in the online news reports of ABS-CBN News and CNN Philippines233 denying that the Maute group occupied the Marawi Police Station. 3. that lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its armored vehicles (Report); Statement made by the bank officials in the on-line news article of Philstar234 that the Marawi City branch was not ransacked but sustained damages from the attacks. 4. that the Marawi Central Elementary Pilot School was burned (Proclamation No. 216 and the Report); Statements in the on-line news article of Philstar235 made by the Marawi City Schools Division Assistant Superintendent Ana Alonto denying that the school was burned and Department of Education Assistant Secretary Tonisito Umali stating that they have not received any report of damage. 5. that the Maute Group attacked various government facilities (Proclamation No. 216 and the Report). Statement in the on-line news article of Inquirer236 made by Marawi City Mayor Majul Gandamra stating that the ASG and the Maute Terror Groups have not taken over any government facility in Marawi City.
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.252Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the privilege of the writ of habeas corpus have been properly and fully complied with. Proclamation No. 216 has sufficient factual basis there being probable cause to believe that rebellion exists and that public safety requires the martial larv declaration and the suspension of the privilege of the writ of habeas corpus.
MR. MONSOD. x x xEven Bishop Bacani was convinced that the 1987 Constitution hrs enough safeguards against presidential abuses and commission of human rights violations. In voting yes for the elimination of the requirement pf prior concurrence of Congress, Bishop Bacani stated, viz.:
Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a fixed period not exceeding 60 days, which is subject to judicial review, is going to result in numerous violations ofhuman rights, the predominance of the military forever and in untold sufferings. Madam President, we are talking about invasion and rebellion. We may not have any freedom to speak of after 60 days, if we put as a precondition the concurrence of Congress. That might prevent the President from acting at that time in order to meet the problem. So I would like to suggest that, perhaps, we should look at this in its proper perspective. We are only looking at a very specific case. We are only looking at a case of the first 60 days at its maximum. And we are looking at actual invasion and rebellion, and there are other safeguards in those cases.262
BISHOP BACANI. Yes, just two sentences. The reason I vote yes is that despite my concern for human rights, I believe that a good President can also safeguard human rights and human lives as well. And I do not want to unduly emasculate the powers of the President. x x x263Commissioner De los Reyes shared the same sentiment, to wit:
MR. DE LOS REYES. May I explain my vote, Madam President.At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his extraordinary powers are already in place and that no further emasculation of the presidential powers is called for in the guise of additional safeguards. The Constitution recognizes that any further curtailment, encumbrance, or emasculation of the presidential powers would not generate any good among the three co-equal branches, and to the country and its citizens as a whole. Thus:
x x x The power of the President to impose martial law is doubtless of a very high and delicate nature. A free people are naturally jealous of the exercise of military power, and the power to impose martial law is certainly felt to be one of no ordinary magnitude. But as presented by the Committee, there are many safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3) the Supreme Court can still review as to the sufficiency of factual basis; and 4) it does not suspend the operation of the Constitution. To repeat what I have quoted when I interpellated Commissioner Monsod, it is said that the power to impose martial law is dangerous to liberty and may be abused. All powers may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power will be more safe and at the same time equally effectual. When citizens of the State are in arms against each other and the constituted authorities are unable to execute the laws, the action of the President must be prompt or it is of little value. x x x264 (Emphasis supplied)
MR. OPLE. The reason for my concern, Madam President, is that when we put all of these encumbrances on the President and Commander-in-Chief during an actual invasion or rebellion, given an intractable Congress that may be dominated by opposition parties, we may be actually impelling the President to use the sword of Alexander to cut the Gordian knot by just declaring a revolutionary government that sets him free to deal with the invasion or the insurrection. x x x265 (Emphasis supplied)f) Rebellion and public safety; nature, scope, and range.
MR. OPLE. x x xh) Several local armed groups have formed linkages aimed at committing rebellion and acts in furtherance thereof in the whole of Mindanao.
x x x x
Madam President, there is a tendency to equate patriotism with rendering the executive branch of the government impotent, as though by reducing drastically the powers of the executive, we are rendering a service to human welfare. I think it is also important to understand that the extraordinary measures contemplated in the Article on the Executive pertain to a practical state of war existing in this country when national security will become a common bond of patriotism of all Filipinos, especially if it is an actual invasion or an actual rebellion, and the President may have to be given a minimum flexibility to cope with such unprecedented threats to the survival of a nation. I think the Commission has done so but at the same time has not, in any manner, shunned the task of putting these powers under a whole system of checks and balances, including the possible revocation at any time of a proclamation of martial law by the Congress, and in any case a definite determination of these extraordinary powers, subject only to another extension to be determined by Congress in the event that it is necessary to do so because the emergency persists.
So, I think this Article on the Executive for which I voted is completely responsible; it is attuned to the freedom and the rights of the citizenry. It does not render the presidency impotent and, at the same time, it allows for a vigorous representation of the people through their Congress when an emergency measure is in force and effect.284
Endnotes:
1Rollo of G.R. No. 231658, p. 37.
2 Id.
3 Id. at 38-39.
4 Id. at 40.
5 Id.
6 Id. at 40-41.
7 Id. at 41.
8 Id. at 42-43.
9 Id. at 43.
10 Id. at 44-45.
11 Id. at 3-32.
12 Id. at 15.
13 Id. at 16.
14 Id. at 16-17.
15 Id. at 17.
16 Id.
17 Id.
18 Id. at 19.
19 Id. at 20.
20 Id. at 20-21.
21 Id. at 23.
22 Id. at 24.
23 Id.
24 Id. at 24-25.
25 Id. at 25.
26 Id.
27 Id. at 26-27.
28 Id. at 28.
29 Id. at 29.
30 Id. at 29-30.
31 Id. at 48-50.
32Rollo of G.R. No. 231771, pp. 80-83; rollo of G.R. No. 231774, pp. 47-50.
33Rollo of G.R. No. 231771, pp. 4, 7.
34 Id. at 5.
35 Id. at 23. Italics supplied.
36 Id. at 23-24. Italics supplied.
37 Id. at 24.
38 Id.
39 Id. at 27.
40 Id. at 24-25.
41 Id. at 28-29.
42 Id. at 31.
43Rollo of G.R. No. 231774, p. 3.
44 Id. at 6.
45 Id. at 8.
46 Id. at 11.
47 Id.
48 Id.
49 Id. at 12.
50 Id. at 15.
51 Id. at 17.
52 Id. at 12.
53 Id. at 20-21.
54 Id. at 23.
55 Id. at 24.
56 Id.
57 Id. at 25.
58Rollo of G.R. No. 231658, pp. 85-135.
59 Id. at 130.
60 Id. at 105.
61 Id. at 106.
62 Id. at 105.
63 Id.
64 Id. at 107.
65 Id.
66 Id. at 111.
67 Id.
68 Id.
69 Id. at 112.
70 Id. at 113.
71 Id.
72 Id.
73 Id.
74 Id. at 114.
75 Id.
76 Id.
77 Id. at 119.
78See Notice dated June 13, 2017, id. at 211-216.
79 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 850.
80 Id., citing People v. Vera, 65 Phil. 56, 89 (1937); Police General Macasiano (Ret.) v. National Housing Authority, 296 Phil. 56, 64 (1993).
81 Bernas, Joaquin G., Constitutional Rights and Social Demands, 2010 ed., p. 795.
82Rollo of G.R. No. 231771, p. 7.
83Rollo of G.R. No. 231774, p. 6.
84Rollo of G.R. No. 231658, pp. 4-5.
85 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 852.
86 Id. at 851.
87 TSN of Oral Argument, June 13, 2017, p. 83.
88 Id. at 21-22.
89De Jesus v. Garcia, 125 Phil. 955, 959 (1967).
90 Agpalo, Ruben, E., Statutory Construction, 2003 ed., p. 167, citing Pimentel v. Commission on Elections, 189 Phil. 581, 587 (1980) and Dimagiba v. Geraldez, 102 Phil. 1016, 1019 (1958).
91De Jesus v. Garcia, supra at 960.
92 149 Phil. 547 (1971).
93 Agpalo, Ruben, E., Statutory Construction, 2003 edition, p. 109.
94 Bernas, Joaquin, G., The Intent of the 1986 Constitution Writers, 1995 ed., p. 456.
95 91 Phil. 882, 887 (1952).
96In the Matter of the Petition for Habeas Corpus of Lansang, supra note 92 at 585-586.
97 206 Phil. 392 (1983).
98 Id. at 419.
99 See also Cruz, Isagani, A., Philippine Political Law, 2002 edition, pp. 225-226.
100 II RECORD, CONSTITUTIONAL COMMISSION 476-477 (July 30, 1986).
101 V RECORD, CONSTITUTIONAL COMMISSION 1009-1010 (October 15, 1986). Emphasis supplied.
102 "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."
103 "Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." (Emphasis supplied)
104 Ballentine, J., Law Dictionary with Pronunciations, 1948 ed., p. 1023; Bouvier, J., Law Dictionary and Concise Encyclopedia, 8th ed., Vol. II, p. 2730.
105 TSN of Oral Argument, June 14, 2017, pp. 99-100.
106 David v. President Macapagol-Arroyo, 522 Phil. 705, 767 (2006), citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 643 (2000).
107 II RECORD, CONSTITUTIONAL COMMISSION 503-504 (July 31, 1986).
108Fortun v. President Macapagal-Arroyo, 684 Phil. 526 (2012).
109 Id. at 558.
110 Id. at 561.
111 Any reference in the Majority Opinion and in the Dissent of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo to acting "in tandem", "not only sequentially, but in a sense jointly", and "sequential or joint" pertains to the interplay of powers/actions between the President and the Congress; not of the Judiciary. See Fortun v. President Macapagal-Arroyo, id. at 557, 560, 604.
112 CONSTITUTION, Article VII, Section 18.
113 Bernas, Joaquin G., The Intent of the 1986 Constitution Writers, 1995 ed., p. 456.
114David v. President Macapagal-Arroyo, supra note 106 at 780.
115 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 642 (2000).
116 Id. at 639-640.
117 Bernas, Joaquin, G., Constitutional Structure and Powers of Government, Notes and Cases Part I, 2010 ed., p. 472.
The difference in the treatment of the calling out power vis-a-vis the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law is explained in this wise:The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by the Congress and review by this Court. (Id. at 479.)118 Bernas, Joaquin, G., Constitutional Structure and Powers of Government, Notes and Cases Part I, 2010 ed., p. 474.
119 Bernas, Joaquin, G., The Intent of the 1986 Constitution Writers, 1995 ed., p. 456.
120 Id. at 458.
121 Id.
122David v. President Macapagal-Arroyo, supra note 106 at 781.
123Integrated Bar of the Philippines v. Zamora, supra note 115 at 643.
124 II RECORD, CONSTITUTIONAL COMMISSION 398 (July 29, 1986).
125 II RECORD, CONSTITUTIONAL COMMISSION 402 (July 29, 1986).
126 Bernas, Joaquin, G. Constitutional Structure and Powers of Government, Notes and Cases Part I, 2010 ed., p. 473.
127 Supra note 106.
128 Id. at 781-782.
129 See Dissenting Opinion of J. Carpio, Fortun v. President Macapagal-Arroyo, supra note 108 at 599.
130David v. President Macapagal-Arroyo, supra note 106 at 781.
131SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 510-511 (2004).
132 Id. at 518.
133 Bernas, Joaquin, G., The Intent of the 1986 Constitution Writers, 1995 ed., p. 464.
134 II RECORD, CONSTITUTIONAL COMMISSION 469 (July 30, 1986).
135 II RECORD, CONSTITUTIONAL COMMISSION 470 (July 30, 1986).
136 II RECORD, CONSTITUTIONAL COMMISSION 471 (July 30, 1986).
137 II RECORD, CONSTITUTIONAL COMMISSION 476-477 (July 30, 1986).
138 II RECORD, CONSTITUTIONAL COMMISSION 476-477 (July 30, 1986).
139 WHEREAS, this [May 23, 2017 Marawi incident] recent attack shows the capability of the Maute Group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao. (Emphasis supplied)
140Ermita-Malate Hotel & Motel Operators Association, Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 325 (1967).
141People v. Nazario, 247-A Phil. 276, 286 (1988).
142Estrada v. Sandiganbayan, 421 Phil. 290, 354 (2001).
143Disini, Jr. v. The Secretary of Justice, 727 Phil. 28, 122 (2014).
144Spouses Romualdez v. Commission on Elections, 576 Phil. 357, 390-391 (2008).
145 Separate Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra note 142 at 430-432.
146 Id. at 355.
147Romualdez v. Hon. Sandiganbayan, 479 Phil. 265, 283 (2004).
148 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 490 (2010).
149 Supra note 106.
150 Supra note 141.
151 Id. at 286-287.
152 690 Phil. 72, (2012).
153 Id. at 91-92. Emphasis supplied.
154 Supra note 115.
155 Id. at 640.
156 Id. at 632-634.
157 CONSTITUTION, Article VII, Section 18, par. 3.
158 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary; 1996 ed., p. 865.
159 Id. at 864-865, citing Fernandez v. Cuerva, 129 Phil. 332, 340 (1967).
160 Supra note 92.
161 Both the 1935 and 1973 Constitution do not have the equivalent provision of Section 18, par. 3, Article VII, 1987 Constitution.
162In the Matter of the Petition for Habeas Corpus of Lansang, supra note 92 at 586. See Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 473.
163 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 475.
164 Id. at 473.
165 According to petitioner Lagman, "the length of the proclamation and the assertion of facts therein is the call of the President; see TSN of Oral Argument, June 14, 2017, p. 67.
166 See Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo, supra note 108 at 607.
167 II RECORD, CONSTITUTIONAL COMMISSION 470-471 (July 30, 1986).
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 andi 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 of 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.
MR. NATIVIDAD. As far as the Commissioner is concerned, would he respect the exercise of the right to, say, classified documents, and when authors of or witnesses to these documents may not be revealed?
MR. PADILLA. Yes, because the President, in making this decision of suspending the writ, will have to base his judgment on the document because, after all, we are restricting the period to only 60 days and further we are giving the Congress or the Senate the right or the power to revoke, reduce, or extend its period.
168 See Dissenting Opinion of Justice Presbitero J. Velasco in Fortun v. President Macapagal-Arroyo, supra note 108 at 629.
169 II RECORD, CONSTITUTIONAL COMMISSION 470-471 (July 30, 1986).
170 See Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo, supra note 108 at 610.
171 Agpalo, Ruben, E., Statutory Construction, Fifth Edition, 2003, pp. 187-189.
172 See Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo, supra note 108 at 592.
173 II RECORD, CONSTITUTIONAL COMMISSION 412 (July 29, 1986).
174 See Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo, supra note 108 at 595.
175 Id. at 594-595.
176 Id. at 597-598.
177 Id.
178 Caraig, Benjamin R., The Revised Penal Code, Criminal Law, Book Two, 2008 revised ed., p. 59.
179Rollo ofG.R. No. 231658, p. 267.
180 Id. at 380.
181 See Proclamation No. 216, 1st Whereas Clause.
182 See Proclamation No. 216, 4th Whereas Clause.
183 See Proclamation No. 216, 5th Whereas Clause.
184Rollo of G.R. No. 231658, pp. 187-193.
185 Id. at 189.
186 Id.
187 Id.
188 Id.
189 Id.
190 Id.
191 Id.
192 Id.
193 Id.
194 Id.
195 Id.
196 Id.
197 Id.
198 Id.
199 Id.
200 Id.
201 Id.
202 Id. at 190.
203 Id.
204 Id.
205 Id.
206 Id.
207 Id.
208 Id.
209 Id. at 191.
210 Id.
211 Id.
212 Id.
213 Id.
214 Id.
215 Id.
216 Id.
217 Id.
218 Id.
219 Id.
220 Id.
221 See Proclamation No. 216, 5th Whereas Clause.
222 See Report, p. 1, 1st par., rollo G.R. No. 231658, p. 187.
223 Id. at 3, last par., id. at 189.
224 Id. at 6, 1st par., id. at 192.
225 Id., 2nd par., id.
226 Id., 3rd par., id.
227 Id., 4th par., id.
228 Id., 5th par., id.
229 Id. at 7, penultimate par., id. at 193.
230Fortun v. President Macapagal-Arroyo, supra note 112 at 595-598.
231Rollo of G.R. No. 231658, pp. 275-276.
232 Id. at 320-332.
233 Id. at 331-332, 343-344.
234 Id. at 320-323.
235 Id.
236 Id. at 347-348.
237Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).
238 See rollo of G.R. No. 231771. p. 29.
239 621 Phil. 498 (2009).
240 Id. at 517.
241 TSN of the Oral Arguments, June 14, 2017, pp. 10-23.
242 See Report, p. 3, 2nd par. Rollo of G.R. No. 231658, p. 189.
243 Id. at 4; id. at 190.
244 Id.; id.
245 Id. at 5; id. at 191.
246 Id.; id.
247 Id.; id.
248 Id.; id.
249 Id. at 6; id. at 192.
250 Id.; id.
251 Id.; id.
252 Id. at 7; id. at 193.
253 I RECORD, CONSTITUTIONAL COMMISSION 710 (July 17, 1986).
254 I RECORD, CONSTITUTIONAL COMMISSION 774 (July 18, 1986).
255 TSN of Oral Argument, June 14, 2014, p. 67.
256 II RECORD, CONSTITUTIONAL COMMISSION 470 (July 30, 1986).
257 II RECORD, CONSTITUTIONAL COMMISSION 470 (July 30, 1986).
258David v. President Macapagal-Arroyo, supra note 106 at 767.
259 Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 486.
260 Id.
261 II RECORD, CONSTITUTIONAL COMMISSION 394 (July 29, 1986).
262 II RECORD, CONSTITUTIONAL COMMiSSION 482 (July 30, 1986).
263 II RECORD, CONSTITUTIONAL COMMISSION 483 (July 30, 1986).
264 II RECORD, CONSTITUTIONAL COMMISSION 485 (July 30, 1986).
265 II RECORD, CONSTITUTIONAL COMMISSION 509 (July 31, 1986).
266People v. Lovedioro, 320 Phil. 481, 488 (1995).
267People v. Geronimo, 100 Phil. 90, 96 (1956); People v. Lovedioro, 320 Phil. 481, 488 (1995).
268 Definitions of PUBLIC SAFETY www.definition.net/definition/PUBLIC SAFETY (visited July 3, 2017).
269People v. Dasig, 293 Phil. 599, 608 (1993). Italics supplied.
270People v. Lovedioro, supra note 266 at 488.
271People v. Dasig, supra 269 at 608-609.
272People v. Mangallan, 243 Phil. 286 (1988) cited in People v. Dasig, supra at 609.
273People v. Lovedioro, supra at 488.
274Ponce Enrile v. Judge Amin, 267 Phil. 603, 612 (1990).
275 Id.
276 Id.
277People v. Dasig, supra at 609.
278Ponce EnriIe v. Judge Amin, supra at 603.
279People v. Lovedioro, supra at 490.
280Ponce Enrile v. Judge Amin, supra at 611.
281People v. Hernandez, 99 Phil. 515, 550 (1956).
282 II RECORD, CONSTITUTIONAL COMMISSION 509 (July 31, 1986).
283 II RECORD, CONSTITUTIONAL COMMISSION 510 (July 31, 1986). Emphasis supplied.
284 II RECORD, CONSTITUTIONAL COMMISSION 735 (August 6, 1986). Emphasis supplied.
285 History of Lanao del Sur https://lanaodelsur.gov.ph/about/history (visited July 3, 2017).
286 Islamic City of Marawi: Historical Background https://sites.google.com/site/icomgovph/govemment/historical-background (visited July 3, 2017).
287 Islamic City of Marawi: Historical Backgroundhttps://sites.google.com/site/icomgovph/govemment/historical-background (visited July 3, 2017).
288Rollo of G.R. No. 231658, pp. 40-41.
289 Id. at 156.
290 Id. at 146.
291 Id.
292 Id.
293 Id. at 147-148.
294 Id. at 146.
295 Id.
296 Id.
297 Id.
298 President Duterte's Report to Congress, May 25, 2017, p. 3; id. at 37.
299 Section 3 of Republic Act No. 9372, otherwise known as the Human Security Act of 2007, lists he following predicate crimes of terrorism:
a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Article 134 (Rebellion or Insurrection); c. Article 134-a (Coup d'Etat), including acts committed by private persons; d. Article 248 (Murder); e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction, or under (1) Presidential Decree No. 1613 (The Law on Arson); (2) Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); (3) Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968); (4) Republic Act No. 6235 (Anti-Hijacking Law); (5) Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and, (6) Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunitions or Explosives).
300 In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 148 at 493, the Court held that the elements of terrorism are as follows: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.
SERENO, C.J.:
Due process has never been and perhaps can never be precisely defined. It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty. In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed.4As examples, the Court refused in two decisions, to apply retroactively what purported to be the rules governing agrarian courts and the DARAB5 rules of procedure. In Land Bank of the Phils. v. De Leon,6 we emphasized that our ruling on the novel issue concerning proper procedure for appeals of decisions of Special Agrarian Courts must only be applied prospectively. We explained that prior to that case, there was no authoritative guideline on the matter and the Court of Appeals has, in fact, rendered conflicting decisions on that issue. Consequently, a prospective application of the ruling was necessitated by equity and fair play.
. . . today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic States of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion;The President's Report, on the other hand, attempts to detail facts supporting his claim of rebellion - on pages 4 and 5 but again, falls short of claiming any other act committed by any other group in any other place in Mindanao other than in Marawi City.
Considering the network of alliance-building activities among terrorist groups, local criminals and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity.All the claims of violence and networking in the President's Report refer solely to those perpetrated and nurtured by the Maute Group and its claimed ally, the Abu Sayyaf. The nexus therefore, must be demonstrated to these two groups' alleged alliance to establish an ISIS wilayat to justify coverage under Proclamation No. 216.
1) | The duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the determination of proportionality of the powers sought to be exercised by the President. As pointed out by the ponencia, the exercise of the powers of the President under Section 18, Article VII "can be resorted to only under specified conditions."12 This means that greater powers are needed only when other less intrusive measures appear to be ineffective. When it is deemed that the power exercised is disproportional to what is required by the exigencies of the situation, any excess therefore is deemed not required to protect public safety, and should be invalidated. |
2) | The duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the definition of the metes and bounds of the areas to be validly covered by martial law. This is another aspect of proportionality. Put differently, if martial law is not necessary to protect public safety in a certain locality, then that locality cannot be included in the coverage of martial law. If it were otherwise, then this Court would be rendering nugatory the requirements of the Constitution that martial law can only be declared in case of an invasion or rebellion, and when the public safety requires it. This much was clarified by Lansang. |
3) | Contrary to the thinking of the ponencia, it is possible and feasible to define the territorial boundaries of martial law. No less than Section 18, Article VII provides that the President can place the entire country "or any part thereof" under martial law. For example, if the province is the largest administrative unit for law enforcement that covers the area of actual conflict, then that unit can be used. This opinion actually recognizes that the areas for a valid martial law operation cover much more than the actual area of combat. As will be shown below, there are only a handful of violent incidents in specific localities in which the elements of publicly taking up of arms against the government and endangerment to public safety are alleged by respondents. |
4) | When the Court makes a determination on the area coverage of martial law in accordance with the necessity of public safety test, the Court does not substitute its wisdom for that of the President, nor its expertise (actually, non-expertise) in military strategy or technical matters for that of the military's. The Court has to rely on the allegations put forward by the President and his subalterns and on that basis apply a trial judge's reasonable mind and common sense on whether the sufficiency and necessity tests are satisfied. The Court cannot be defending vigorously its review power at the beginning, with respect to the sufficiency-of-factual basis question, then be in default when required to address the questions of necessity, proportionality, and coverage. Such luxury is not allowed this Court by express directive of the Constitution. Such position is no different from ducking one's head under the cover of the political question doctrine. But we have already unanimously declared that Section 18, Article VII does not allow government a political question defense. When the military states that present powers are sufficient to resolve a particular violent situation, then the Court must deem them as sufficient, and thus martial law should be deemed as not necessary. |
In the language of Justice Black, it authorizes "the military to act vigorously for the maintenance of an orderly civil government." Or in the language of Chief Justice Stone, it isc. Sufficiency and necessity test requires calibration and delimitation of the coverage of martial lawthe exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety . . . It is the law of necessity to be prescribed and administered by the executive power. Its object, the preservation of the public safety and good order, defines the scope which will vary the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the exigency which calls it forth . . .13
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended . . . ." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art. VII of the Constitution, "imminent danger thereof" - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.14 (emphasis supplied)Indeed, the Court had described instances of actual rebellion and the corresponding declaration of martial law as being often limited in geographical scope.
This [referring to the area of actual rebellion] is apparent from the very provision of the Revised Penal Code defining the crime of rebellion, which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ "wherever" - in case of rebellion "the necessity for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and Batangas only. The case of In re Boyle involved a valid proclamation suspending the privilege in a smaller area - a county of the state of Idaho.While Lansang recognized that actual rebellion can be limited in geographical area, it nevertheless upheld the nationwide suspension of the privilege of the writ of habeas corpus because the evidence that the Court detailed in the Decision spoke of a nationwide spread of acts of rebellion and anarchy.
The magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension of the privilege - namely, that the suspension be required by public safety.15
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 of the President, the Congress may, in the same manner, extends 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.The phraseology of the Constitution is purposive and directed. Martial law can only be declared: a) when there is actual invasion or rebellion; b) when public safety requires it; and c) over the entire Philippines or any part thereo£ This Court cannot render inutile the second sentence of Article VII, section 18 by refusing to review the presidential decision on the coverage of martial law vis-a-vis the place where actual rebellion is taking place, and the necessity to public safety of declaring martial law in such places. The use of the phrase "when public safety requires it" can only mean that the Court must ask whether the powers being invoked is proportional to the state of the rebellion, and corresponds with its place of occurrence.
x x x
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 of habeas corpus 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.From the foregoing provision springs a series of inhibitions in existing laws that are imposed on the government during martial law. It behooves this Court, as the guardian of the Constitution and protector of the constitutional rights of the citizens, to specify these limitations. It is this Court's duty, upon recognizing government's own difficulty with the concept of martial law, to sufficiently outline the legal framework upon which the implementation of martial law depends; and to ensure that the power to declare martial law is discharged in full accordance with this framework. To shirk from this duty would be a disservice to our men and women in uniform who, at this very moment, are rendering sacrificial service in the field as implementors of martial law. Ultimately, it would be a disservice to the Filipino people.
The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities.72The arrest of persons involved in rebellion is thus synonymous with a valid warrantless arrest of a person committing a crime in the presence of the arresting officer.
(1) Any person under investigation for the commission of ,an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.Section 19(2), Article III of the Constitution further provides:
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
R.A. 9745 (Anti-Torture Act of 2009) strengthens the right of an arrested person not to be subjected to physical or mental torture111 while under detention. This law provides that, the freedom from torture and other cruel, inhuman, and degrading treatment and punishment is an absolute right, even during a public emergency.112 Further, an "order of battle" cannot be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.113 As in R.A. 7438, any confession, admission, or statement obtained as a result of torture shall be inadmissible in evidence in any proceeding, except if the same is used as evidence against a person or persons accused of committing torture.114
- The right to be informed of the nature and cause of their arrest;
- The right to remain silent;
- The right to have competent and independent counsel;
- The right to be informed of the cause or causes of their detention in the presence of their legal counsel;
- The right to communicate freely with their legal counsel and to confer with them at any time without restriction;
- The right to communicate freely and privately without restrictions with the members of their family or with their nearest relatives and to be visited by them;
- The right to freely avail themselves of the service of a physician or physicians of choice; and
- The right to be informed of the above rights.
The inviolability of the home is one of the most fundamental of all the individual rights declared and recognized in the political codes of civilized nations. No one can enter into the home of another without the consent of its owners or occupants.The limitations on the manner in which the search warrant shall be secured and implemented can be found in the Revised Penal Code, specifically as follows:
The privacy of the home the place of abode, the place where man with his family may dwell in peace and enjoy the companionship of his wife and children unmolested by anyone, even the king, except in rare cases has always been regarded by civilized nations as one of the most sacred personal rights to whom men are entitled. Both the common and the civil law guaranteed to man the right to absolute protection to the privacy of his home. The king was powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the humblest citizen or subject might shut the door of his humble cottage in the face of the monarch and defend his intrusion into that privacy which was regarded as sacred as any of the kingly prerogatives x x x.
'A man's house is his castle,' has become a maxim among the civilized peoples of the earth. His protection therein has become a matter of constitutional protection in England, America, and Spain, as well as in other countries.134
The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.Under the first paragraph, the liberty of abode and of changing it may be impaired only "upon lawful order of the court" as guided by the "limits prescribed by law."135 The clear intent is to proscribe "hamletting" or the herding of people into a militarily-quarantined sanctuary within rebel areas as was done during the Marcos regime.136 Therefore, the restrictive type of military blockade is not countenanced by law.
Section 26. Restriction on Travel. - In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court.An allowable and "less restrictive" version of a military blockades is the setting up of police or military checkpoints, which has been ruled by this Court as not illegal per se.138 Checkpoints are allowed for as long as they are warranted by the exigencies of public order and are conducted in a manner least intrusive to motorists.139 As explained by this Court in Caballes v. Court of Appeals:140
He/she may also be placed under house arrest by order of the court at his or her usual place of residence.
While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court.
The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.137
A checkpoint may either be a mere routine inspection or it may involve an extensive search.However, subjecting a vehicle to an extensive search, as opposed to a mere routine inspection, has been held to be valid only for as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality, or evidence pertaining to a crime, in the vehicle to be searched.142
Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area.141
The written order of the RTC shall only be issued or granted upon a written application and the examination, under oath or affirmation, of the applicants and the witnesses they may produce, as well as a showing
- Treason,
- Espionage,
- Provoking war and disloyalty in case of war,
- Piracy,
- Mutiny in the high seas,
- Rebellion,
- Conspiracy and proposal to commit rebellion,
- Inciting to rebellion,
- Sedition,
- Conspiracy to commit sedition,
- Inciting to sedition,
- Kidnapping as defined by the Revised Penal Code, and
- Violations of Commonwealth Act No. 616, which punishes espionage and other offenses against national security.144
Endnotes:
1 Entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" dated 23 May 2017.
2 Unless the context otherwise indicates, I refer to the declaration of martial law here by President Rodrigo Roa Duterte to refer also to his suspension of the privilege of the writ of habeas corpus, both of which are contained in Proclamation No. 216.
3 Armed Forces of the Philippines
4People v. Lacson, 459 Phil. 330 (2003) and Lassiter v. Department of Social Service of Durham City, 452 U.S. 18, 101 S.Ct. 2153, 2158, 68 L. Ed. 2d 640 (U.S. 1981).
5 Department of Agrarian Reform Adjudicative Board.
6 447 Phil. 495 (2003).
7 G.R. No. 158464, 2 August 2016.
8 Id.
9 JUSTICE LEONEN:
If they go to Dinagat, they will stick out like a sore tongue [thumb]?
GENERAL PURISIMA:
Yes, Your Honor
JUSTICE LEONEN:
They do not have pintakasi there?
GENERAL PURISIMA:
Yes, Your Honor.
JUSTICE LEONEN:
They do not have relations there, correct? So, why is it extended to Dinagat?
GENERAL PURISIMA:
Sir, the declaration of martial law is the whole of Mindanao that means, as I said before, the military is implementing martial law in the whole of Mindanao and we shall implement martial law if there is a necessity. For example, a group of Maute/ISIS escaped from Marawi and they go to Siargao or Dinagat then we can use the special power of martial law in order to get those people immediately. But if you go there, there is no semblance of martial law there even in other areas of Mindanao.
JUSTICE LEONEN:
I understand.
GENERAL PURISIMA:
We just implemented curfew and checkpoint in key areas, selected areas that we believe might have connection with the Marawi uprising, Your Honor.
10 JUSTICE LEONEN:
Let me be more specific by a concrete example. Abu Sayyafwent to Bohol?
GENERAL PURISIMA:
Yes, Your Honor.
JUSTICE LEONEN:
And martial law was not in place but you were able to quell the intrusion of the fighters in Bohol?
GENERAL PURISIMA:
Yes, Your Honor.
11 See Philippine Military Academy Roadmap 2015 (2005); Philippine Navy Strategic Sail Plan 2020 (2006); Army Transformation Roadmap 2028 (2010); AFP Transformation Roadmap 2028 (2012).
12 Decision, p. 31.
13 JOAQUIN G. BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, p. 901-902 (2009).
14In re: Lansang v. Garcia, supra note 4, at 586.
15 Id. at 591-592.
16 99 Phil. 1956 (1956).
17 Id. at 521.
18 R.A. 9372, Sec. 3.
19 Memorandum of the OSG, Annex 2 (Affidavit of General Eduardo M. Año), p. 5.
20 Id.
21 Proclamation No. 55 dated 4 September 2016 (Declaring a State of National Emergency on Account of Lawless Violence in Mindanao).
22 Memorandum of the Office of the Solicitor General (OSG), Annex 9 (Significant Atrocities in Mindanao Prior to the Marawi Incident), p. 1.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id. at Annex 2 (Affidavit of General Eduardo M. Año), p. 4.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id. at p. 5.
39 Id. at Annex 9 (Significant Atrocities in Mindanao Prior to the Marawi Incident), p. 2.
40 ld.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id. at p. 3.
49 Id.
50 Id.
51 Id.
52 Id.
53 Garrett Atkinson, Abu Sayyaf: The Father of the Swordsman, A review of the rise of Islamic insurgency in the southern Philippines, American Security Project, March 2012, Available: https://www.americansecurityproject.org/wp-contentluploads/2012/03/Abu-Sayyaf-The-Father-of-theSwordsman.pdf (Accessed: 4 July 2017).
54 Roel Pareno, 10 Abu Sayyaf Killed, 32 Soldiers Hurt in Sulu Encounter, Available: http://www.philstar.com/nation/2017/04/03/1687306/10-abu-sayyaf-killed-32-soldiers-hurt-sulu-encounter (Acccessed: 4 July 2017).
55 Victor Taylor, Terrorist Activities of the Abu Sayyaf, The Mackenzie Institute, Available: http://mackenzieinstitute.com/terrorist-activities-abu-sayyaf/#reference-1 (Accessed: 4 July 2017).
56 Zachary Abuza, Balik-Terrorism: The Return of the Abu Sayyaf, 4 (2005): Available: https://ssi.armywarcollege.edu/pdffiles/PUB625.pdf (Accessed: 4 July 2017).
57 Abu Sayyaf Kidnappings, Bombings, and Other Attacks, Available: http://www.gmanetwork.com/news/news/content/154797/abu-sayyaf-kidnappings-bombings-and-otherattacks/story/ (Accessed: 4 July 2017).
58 Abu Sayyaf Kidnappings, Bombings, and Bther Attacks, Available: http://www.gmanetwork.com/news/news/content/154797/abu-sayyaf-kidnappings-bombings-and-otherattacks/story/ (Accessed: 4 July 2017).
59 Julie S. Alipala, Abu Sayyaf Gunmen Kill 21 in Sulu attack, Available: http://newsinfo.inquirer.net/624137/abu-sayyaf-gunmen-kill-at-least-16-villagers#ixzz4lr5CQIb4 (Accessed: 4 July 2017).
60http://newsinfo.inquirer.net/895173/biff-sub-leader-killed-in-maguindanao-clash-with-soldiers. (Last accessed 4 July 2017).
61 Id.
62http://www.philstar.com/nation/2017/05/18/1701212/2-soldiers-hurt-ied-blast-maguindanao. The news report stated that the casualty of the incident were two wounded soldiers. (Last accessed 4 July 2017)
63 Memorandum of the OSG, Annex 2 (Affidavit of General Eduardo M. Año), p. 3.
64 FATHER BERNAS: A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies . . .
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers. (II Record, CONSTITUTIONAL COMMISSION 398 ([29 July 1986]).
65 BERNAS, supra note 12 at 920.
66 FATHER BERNAS: The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war. (II Record, CONSTITUTIONAL COMMISSION 398 [29 July 1986]).
67 BERNAS, supra note 12 at 920.
68 Constitution, Article VII, Sec. 18.
69Umil v. Ramos, 265 Phil. 325 (1990).
70 Id.
71 206 Phil. 392 (1983).
72 Id. at 417.
73 R.A. 9372, Sec. 18.
74 SECTION 18. Period of Detention Without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.
The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.
The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify and judge as Provided in the preceding paragraph.
SECTION 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. - In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.
SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The penalty often (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days. (R.A. 9372)
75 Id.
76 Rules of Court, Rule 113, Sec. 5(a).
77People v. Chua, 444 Phil. 757 (2003).
78 Rules of Court, Rule 113, Sec. 5(b).
79Pestilos v. Generoso, G.R. No. 182601, 10 November 2014.
80Pestilos v. Generoso, supra.
81Sindac v. People, G.R. No. 220732, 6 September 2016.
82Pestilos v. Generoso, supra note 69.
83Pestilos v. Generoso, supra note 69.
84 RULES OF COURT, Rule 113, Sec. 5(c).
85 RULES OF COURT, Rule 113, Sec. 13.
86 RULES OF COURT, Rule 114, Sec. 23.
87 RULES OF COURT, Rule 113, Sec. 7.
Section 7. Method of arrest by officer by virtue of warrant. - When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.
88 RULES OF COURT, Rule 113, Sec. 8:
Section 8. Method of arrest by officer without warrant. - When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.
89 RULES OF COURT, Rule 113, Sec. 5: "In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail"; Rule 113, Section 3, Rules of Court: "It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay"; Pestilos v. Generoso, G.R. No. 182601, 10 November 2014.
90 RULES OF COURT, Rule 113, Sec. 5.
91 RULES OF COURT, Rule 113, Sec. 4: Execution ofwarrant. - The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor.
92In Re: Salibo v. Warden, G.R. No. 197597, 8 April 2015, 755 SCRA 296.
93 SECTION 18. Period of Detention Without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period ofthree days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.
The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcemenpersonnel shall notifY in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.
The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify and judge as Provided in the preceding paragraph.
x x x x
SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or Jaw enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days.
94 SECTION 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. - In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.
95 SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The penalty often (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days.
96 REVISED PENAL CODE, Art. 125: Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.
97 Id.
98 Art. 124. Arbitrary detention. - Any public officer or employee who, without legal grounds, detains a person, shall suffer;
1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the detention has not exceeded three days;
2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued more than three but not more than fifteen days;
3. The penalty of prision mayor, if the detention has continued for more than fifteen days but not more than six months; and
4. That of reclusion temporal, if the detention shall have exceeded six months.
The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person.
99 Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.
Art. 268. Slight illegal detention. - The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of circumstances enumerated therein.
The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.
If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos.
100 Art. 269. Unlawful arrest. - The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities.
101 CONSTITUTION, Art. III, Sec. 19(2),
102 An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof.
103 R.A. 7438, Sec. 2(a).
104 R.A. 7438, Sec. 2(b).
105 Id.
106 R.A. 7438, Sec. 2(f).
107 R.A. 7438, Sec. 2.
108 R.A. 7838, Sec. 2(d).
109 R.A. 7838, Sec. 2(e).
110 R.A. 9372, Sec. 21: Rights of a Person under Custodial Detention. - The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney's Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person(s) detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice; (b) informed of the cause or causes of his detention in the presence of his legal counsel; (c) allowed to communicate freely with his legal counsel and to confer with them at any time without restriction; (d) allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and to be visited by them; and, (e) allowed freely to avail of the service of a physician or physicians of choice.
111 Republic Act No. (R.A.) 9745 (Anti-Torture Act of 2009) defines torture as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Sec. 3[a]).
112 R.A. 9745, Sec. 6: Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, an Absolute Right. - Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.
113 Id.
114 R.A. 9745, Sec. 8.
115 R.A. 9372 (Human Security Act of 2007), Sec. 24.
Section 24. No Torture or Coercion in Investigation and Interrogation. - No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his free-will, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative, investigation, inquiry, proceeding, or hearing.
116 Id.
117People v. Canton, 442 Phil. 743 (2002).
118 CONSTITUTION, Art. III, Sec. 2.
119Columbia Pictures, Inc. v. Court of Appeals, 329 Phil. 875 (1996).
120Miclat, Jr. y Cerbo v. People, 612 Phil. 191 (2011).
121People v. Aruta, 351 Phil. 868 (1998).
122Sy v. People, 671 Phil. 164 (2011).
123Sanchez v. People, 747 Phil. 552 (2014).
124People v. Lo Ho Wing, 271 Phil. 120 (1991).
125Caballes v. Court of Appeals, 424 Phil. 263 (2002).
126Dela Cruz v. People, G.R. No. 209387, 11 January 2016.
127Papa v. Mago, 130 Phil. 886 (1968).
128People v. Canton, supra note 7.
129People v. Cogaed, 740 Phil. 212 (2014).
130 304 Phil. 118 (1994).
131 Id. at 113.
132People v. Aruta, supra note 111.
133 3 Phil. 381, 384 (1904).
134 Id. at 384.
135 BERNAS, supra note 12 at 375-376.
136 BERNAS, supra note 12 at 376.
137 R.A. 9372, Sec. 26.
138People v. Manago, G.R. No. 212340, 17 August 2016; Caballes v. Court of Appeals, 424 Phil. 263 (2002).
139Caballes v. Court of Appeals, supra note 115.
140Caballes y Taiño v. Court of Appeals, supra.
141 Id. at 280.
142People v. Manago y Acut, supra note 124.
143 CONSTITUTION Article III, Section 3(1).
144 R.A. 4200, Sec. 3.
145 Id.
146 Id.
147 R.A. 9372, Sec. 7: Surveillance of Suspects and Interception and Recording of Communications. - The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.
148 Id. at Sec. 17: Proscription of Terrorist Organizations, Association, or Group of Persons. - Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
149 G.R. No. 216914, 6 December 2016.
150 R.A. 9372, Sec. 27: Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. - The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that: (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons; and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or fmancial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.
151 Id.
152 Promulgated on 18 June 2012.
153 R.A. 10168, Sec. 10.
154 Id.
155 R.A. 10168, Sec. 11.
156 Id.
157 Id.
158 Id.
159 CONSTITUTION, Article III, Sec. 4.
160Eastern Broadcasting Corp. v. Dans, Jr., 222 Phil. 151 (1985).
161 Concurring Opinion of J. Carpio, Chavez v. Gonzales, 569 Phil. 155 (2008).
162Eastern Broadcasting Corp. v. Dans, Jr., supra note 150.
163 Id.
164 R.A. 9851, Sec. 3(c): "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply.
165 R.A. 9851, Sec. 3(c): Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation.
166 R.A. 9851, Sec. 3(c): Armed conflict may be non-international, that is, between governmental authorities and organized armed groups or between such groups within a State. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
167 R.A. 9851, Sec. 4.
168 R.A. 9851, Sec. 3(k): "Hors de combat" means a person who: (1) is in the power of an adverse party; (2) has clearly expressed an intention to surrender; or (3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself: Provided, That in any of these cases, the person abstains from any hostile act and does not attempt to escape.
169 R.A. 9851, Sec. 4.
170 R.A. 9851, Sec. 4.
171 R.A. 9851, Sec. 5.
172 R.A. 9851, Sec. 6.
173 R.A. 9851, Sec. 11.
174 R.A. 9851, Sec. 9.
175 R.A. 9851, Sec. 12.
176 Common Article 2 to the 1949 Geneva Conventions provides:In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.177 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.
178 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
179See HENCKAERTS, J. M., STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL REVIEW OF THE RED CROSS, Volume 87 Number 857, pp. 198-212, March 2005; International Committee of the Red Cross, Customary IHL Database, Available at: https://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf, accessed on 30 June 2017.
180The Prosecutor v. Dusko Tadic, International Criminal Tribunal for the Former Yugoslavia, IT-94-1AR72, Appeals Chamber Decision, 2 October 1995.
181 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
182See Henckaerts, supra note 169.
183See International Committee of the Red Cross, How is the Term 'Armed Conflict' Defined in International Humanitarian Law? (Opinion Paper), March 2008.
CARPIO, J.:
11. On April 2016, the [Islamic State of Iraq and Syria's] weekly newsletter, Al Naba, announced the appointment of Abu Sayyaf leader [Isnilon] Hapilon as the emir or leader of all ISIS forces in the Philippines. x x x.On the night of 23 May 2017, President Rodrigo Roa Duterte (President Duterte) issued Proclamation No. 216, declaring a state of martial law and suspending the privilege of ihe writ in the whole of Mindanao. The full text of Proclamation No. 216, signed by President Duterte and attested by Executive Secretary Salvador C. Medialdea reads:
x x x x
20. On 22 to 25 April 2017, the rebel group, led by Hapilon, engaged in armed offensives against the military in Piagapo, Lanao del Sur. The government offensives, which involved a combination of ground assaults and airstrikes, forced the rebel group to flee to Marawi City.
21. Military forces spotted Hapilon in Marawi City sometime in early May 2017. Specifically, on 18 May 2017, intelligence reports revealed that the ISIS-inspired local rebel groups were planning to raise the ISIS flag at the provincial capitol. x x x.
22. On 23 May 2017, Hapilon was seen at the safe house of the ISIS-inspired local rebel groups in Barangay Basak Malutlut, Marawi City. A joint military and police operation to serve a warrant of arrest and to capture Hapilon and the Maute Group operational leaders for kidnapping for ransom was initiated. The focused military operation started with an encounter at about 1:30 in the afternoon between government forces and ISIS-inspired local rebel group members. This was followed by a series of encounters throughout the day in different parts of Marawi City.
x x x x
24. The rebel groups launched an overwhelming and unexpected offensive against government troops. Multitudes numbering about five hundred (500) armed men marched along the maistreets of Marawi and swiftly occupied strategic positions throughout the city. Snipers positioned themselves atop buildings and began shooting at government troops. The ISIS-inspired local rebel groups were also equipped with rocket-propelled grenades ("RPG") and ammunition for high-powered assault rifles.
25. The ISIS-inspired local rebel groups occupied the Philhealth Office and Salam Hospital in Barangay Lilod. They burned three (3) buildings: the Marawi City Jail, Landbank Moncada Branch, and Senator Ninoy Aquino Foundation College. They also kidnapped and killed innocent civilians. In their rampage, the rebel groups brandished the black ISIS flag and hoisted it in the locations that they occupied.2
On 25 May 2017, President Duterte submitted his Report to Congress in accordance with Section 18, Article VII of the 1987 Constitution, which states in part that "[w]ithin 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." In his Report, President Duterte presented the following justifications for imposing martial law and suspending the privilege of the writ in the whole of Mindanao: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, Proclamation No. 55, series of2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;
WHEREAS, Section 18 Article VII of the Constitution provides that "x x x In case of invasion or rebellion, when the public safety requires it, he (the 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 x x x";
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that "the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or ay part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives";
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;
WHEREAS, today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
DONE, in the Russian Federation, this 23rd day of May in the year of our Lord[,] Two Thousand and Seventeen.3
Pursuant to Section 18, Article VII of the 1987 Constitution, I am submitting hereunder the Report relative to 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," 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 his 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. The text of Proclamation No. 216 reads:These petitions impugn the constitutionality of Proclamation No. 216.
x x x x
Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years, we have witnessed the perpetration of numerous acts of violence challenging the authority of the duly constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured prominently in all these, namely, the Abu Sayyaf Group (ASG) and the ISIS-backed Maute Group.
On 23 May 2017, a government operation to capture Isnilon Hapilon, senior leader of the ASG, and Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government. Through these groups' armed siege and acts of violence directed towards civilians and government authorities, institutions and establishments, they were able to take control of major social, economic, and political foundations of Marawi City which led to its paralysis. This sudden taking of control was intended to lay the groundwork for the eventual establishment of a DAESH4wilayat or province in Mindanao.
Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by DAESH, as evidenced by, among others, its publication of a video footage declaring its all giance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and logistical support to the Maute Group.
The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives.These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.
- At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on various facilities - government and privately owned - in the City of Marawi. - At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being managed by the Bureau of Jail Management and Penology (BJMP). - The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty' personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells. - The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private vehicles). - By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard and felt everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply was still cut off, plunging the city into total black-out.) - From 1800 to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police Station. A patrol car of the Police Station was also taken. - A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail. - The BJMP directed its personnel at the Marawi City and other affected areas to evacuate. - By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell under the control of these groups. They threatened to bomb the bridges to pre-empt military reinforcement. - As of 2222H, persons connected with the Maute group had occupied several areas in Marawi City, including Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and Abubakar. - These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City junction. - Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncado Colony. Hostages were taken from the church. - About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless groups. - Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School. - The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several locations. As of 0600H of 24 May 2017, members of the Maute Group were seen guarding the entry gates of the Amai Pakpak Hospital. They held hostage the employees of the Hospital and took over the Phil-Health office located thereat. - The groups likewise laid siege to another hospital, Filipino Libyan Friendship Hospital, which they latr set ablaze. - Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one its armored vehicles. - Latest information indicated that about seventy-five percent (75%) of Marawi City has been infiltrated by lawless armed groups composed of members of the Maute Group and the ASG. As of the time ofthis Report, eleven (11) members of the Armed Forces and the Philippine National Police have been killed in action, while thirty-five (35) others have been seriously wounded. - There are reports that these lawless armed groups are searching for Christian communities in Marawi City to execute Christians. They are also preventing Maranaos from leaving their homes and forcing young male Muslims to join their groups. - 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, seizing public and private facilities, perpetrating killings of government personnel, and committing armed uprising against and open defiance of the government.
The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government.
There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and .remove his supervisory powers over local governments.
Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from the city is likewise hindered.
The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of the entire island of Mindanao.
The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts ofMindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages.
Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.5
Sec. 18. x x x.Based on this constitutional provision, the "appropriate proceeding" referred to is a sui generis petition not falling under any of the actions or proceedings in the Rules of Court for the following three reasons.
x x x x
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 of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)
Sec. 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis supplied)What is assailed in a petition for certiorari under Rule 65 of the Rules of Court are acts of government officials or tribunals exercising judicial or quasi-judicial functions. In contrast, what is assailed in a proceeding under paragraph 3, Section 18, Article VII of the 1987 Constitution is an executive act of the President not involving judicial or quasi-judicial functions.
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. x x x.14 (Emphasis supplied)Neither is the case of Lansang v. Garcia15 applicable because it was decided under the 1935 Constitution, which had no provision similar to the "sufficiency of the factual basis" standard under the 1987 Constitution. Section 11 (2), Article VII of the 1935 Constitution reads:
Sec. 11. (1) x x x.Nowhere in the 1935 Constitution did it state that any citizen could ask the Court to review the "sufficiency of the factual basis" of the President's suspension of the privilege of the writ. In Lansang,16 the Court used its ordinary certiorari power to review the constitutionality of the suspension of the privilege of the writ as the 1935 Constitution neither contained the expanded certiorari power of the Court nor the "sufficiency of the factual basis" standard now found in the 1987 Constitution. This is not the situation in the present case. Applying the ordinary certiorari power the Court used in Lansang to the present petitions is to erase from the 1987 Constitution the "sufficiency of the factual basis" standard expressly written in paragraph 3, Section 18, Article VII of the 1987 Constitution, a standard specifically applicable to the review of the imposition of martial law or the suspension of the privilege of the writ. Applying the ordinary certiorari review power in Lansang to the present petitions is to drastically revise paragraph 3, Section 18, Article VII of the 1987 Constitution, an act obviously beyond the power of the Court to do.
(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, 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.
FR. BERNAS. x x x. When he (the President) judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. x x x.20 (Emphasis supplied)Justices of the Court took an oath to preserve and defend the Constitution. Their oath of office does not state that they must trust the President when he declares martial law or suspends the privilege of the writ. On the contrary, paragraph 3, Section 18, Article VII of the 1987
x x x. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. x x x.30 (Emphasis supplied)The requirement of probable cause is consistent with Section 18, Article VII of the 1987 Constitution. It is only upon the existence of probable cause that a person can be "judicially charged" under the last two paragraphs of Section 18, Article VII of the 1987 Constitution, to wit:
Sec. 18. x x x.The standard of "reasonable belief" advanced by the OSG31 is essentially the same as probable cause. The Court has held in several cases that probable cause does not mean "actual and positive cause" nor does it import absolute certainty. Rather, probable cause is merely based on opinion and reasonable belief that the act or omission complained of constitutes the offense charged.32 The facts and circumstances surrounding the case must be such as to excite reasonable belief in the mind of the person charging.33
x x x x
The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)
Section 18. The President shall be the Co:riunander-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.In exercising his Commander-in-Chief power to 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 absence of either element will not authorize the President, who is sworn to defend the Constitution, from exercising his Commander-in-Chief power to declare martial law or suspend the privilege of the writ.
Article 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed. by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.Based on its statutory definition, the crime of rebellion has the following elements: (1) there is a (a) public uprising and (b) taking 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: (1) the territory of the Philippines or any part thereof; or (2) 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.37
There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments. (Emphasis supplied)Neither did the OSG present any evidence of a Maute-Hapilon-led rebellion in Camiguin Province, Dinagat Province, Bukidnon Province, the Misamis, Agusan, Davao, Zamboanga, Pagadian, Cotabato, Surigao, General Santos, and the other islands and parts of Mindanao.
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident; everybody knows what happened. Would the committee consider that an actual act of rebellion?The argument that martial law is justified in the whole of Mindanao since the rebels in Marawi City could easily flee or escape to other areas of Mindanao is also wrong.
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed in Article 135. x x x.43 (Emphasis supplied)
The gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, thus:To repeat, Lovedioro never declared that rebellion cannot be confined to geographical boundaries. Lovedioro referred to the many crimes that are absorbed in rebellion when it stated that that "rebellion x x x cannot be confined a priori within predetermined bounds."In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance to the Government the territory of the Philippine Islands or any part thereof, then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. (Emphasis supplied)
However, Rolando Dural was arrested for being a member of the New People's Army (NPA), an outlawed subversive organization. Subversion, being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. x x x48 (Emphasis supplied)Considering that rebellion is a continuing crime in our jurisdiction, any suspected rebel can be the subject of a warrantless arrest within Philippine territory wherever he or she goes. Under the Rules of Criminal Procedure, any person who has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer can be arrested without warrant; or if it be an offense which had just been committed, that the police officer making the arrest has personal knowledge of facts or circumstances that the person to be arrested has committed it.49 Once there is a rebellion, any rebel is deemed to be continuously committing the crime of rebellion wherever he or she may be in the Philippines, even if the rebel has hidden his or her firearm to avoid arrest. In short, with or without a state of martial law, a suspected rebel of a known rebellion such as the present communist CCP-NPA rebellion, can be arrested anywhere in the Philippines, with or without a warrant. Trial courts can take judicial notice of the ongoing communist rebellion in the country.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.The existence of the twin requirements for the imposition of martial law actual rebellion or invasion and the need to protect public safety may lead to a valid restriction on the privacy of communication and correspondence as well as on the freedom to travel, provided there is an existing law specifically authorizing such restrictions.
x x x x
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impai ed except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied)
Sec. 23. (1) x x x.Of course, such time-bound delegation of emergency powers to the President must be embodied in a law enacted by Congress.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Emphasis supplied)
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in the definition are the elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United States since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic, b) natural disaster, and c) national security.As to what emergency powers can by law be delegated by Congress to the President, Section 17, Article XII of the 1987 Constitution reads:
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. This is evident in the Records of the Constitutional Commission, thus:MR. GASCON. Yes. What is the Committee's definition of 'national emergency' which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean Is threat from external aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term 'national emergency.'
MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.x x x x x x x x x
MR. TINGSON. May I ask the committee if 'national emergency' refers to military national emergency or could this be economic emergency?'
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.55 (Emphasis supplied)
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. (Emphasis supplied)In David v. Macapagal-Arroyo, the Court expressly held' that the takeover of privately owned public utilities or businesses affected with public interest is one of the emergency powers that Congress can validly delegate by law to the President, thus:
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: x x xTo illustrate, in 1989, Congress enacted Republic Act No. 6826 delegating emergency powers to former President Corazon C. Aquino on account of "a rebellion committed by certain elements of the Armed Forces of the Philippines aided and abetted by civilians (giving) rise to an emergency of national proportions."57 Among the emergency powers granted to former President Corazon C. Aquino was the takeover of privately-owned public utilities or businesses affected with public interest, thus:
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. x x x.
x x x x
Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.56 (Emphasis supplied)
Sec. 3. Authorized Powers. - Pursuant to Article VI, Section 23 (2) of the Constitution, and to implement the declared national policy, the President is hereby authorized to issue such rules and regulations as may be necessary to carry out any or all of the following powers:Notably, a perusal of the congressional franchises granted to radio and television operators, such as ABS-CBN Broadcasting Corporation and GMA Network, Inc., shows the following provision:
x x x x
(3) To temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest that violates the herein declared national policy: Provided, however, That to the extent feasible, management shall be retained, under the direction and supervision of the President or her duly design ted representative who shall render a full accounting to the President of the operations of the utility or business taken over: Provided, further, That whenever the President shall determine that the further use or operation by the Government of any such public service or enterprise is no longer necessary under existing conditions, the same shall be restored to the person entitled to the possession thereof;
Sec. 5. Right of the Government. - A special right is hereby reserved to the President of the Philippines, in times of war, rebellion, public peril, calamity, emergency, disaster or serious disturbance of peace and order; to temporarily take over and operate the stations or facilities of the grantee; to temporarily suspend the operation of any station or facility in the interest of public safety, security and public welfare; or to authorize the temporary use and operation thereof by any agency of the government, upon due compensation to the grantee, for Jhe use of the stations or facilities of the grantee during the period when these shall be so operated.58The grant of franchise to the National Grid Corporation of the Philippines, a privately-owned corporation in charge of operating, maintaining and developing the country's state-owned power grid, is also subject to the takeover emergency power of the President in times of rebellion. Republic Act No. 9511 thus reads in pertinent part:
Sec. 5. Right of the Government. - A special right is hereby reserved to the President of the Philippines, in times of war, rebellion, public peril, calamity, emergency, disaster, or disturbance of peace and order, to temporarily take over and operate the transmission system, and/or the sub-transmission systems operated and maintained by the Grantee, to temporarily suspend the operation of any portion thereof, or the facility in the interest of public safety, security and public welfare, or to authorize the temporary use and operation thereof by any agency of the government upon due compensation to the Grantee for the use of the said transmission system, and sub transmission systems and any portion thereof during the period when they shall be so operated. (Emphasis supplied)Similarly, Section 14 of Republic Act No. 8479, or the Downstream Oil Industry Deregulation Act of 1998, vests the Secretary of the Department of Energy, in times of national emergency and when the public interest so requires, with the power to take over or direct the operation of any business of importing, exporting, re-exporting, shipping, transporting, processing, refining, storing, distributing, marketing and/or selling crude oil, gasoline, diesel, liquefied petroleum gas, kerosene, and other petroleum products.59
Sec. 8. Right of Government. - In case of war, insurrection, domestic trouble, public calamity or national emergency, the Philippine Government, upon the order of the President, shall have the right to take over and operate the equipment of the grantee paying for its use or damages. (Emphasis supplied)The franchise of Philippine Long DistancTelephone Company also authorizes the President to take over in times of "rebellion, x x x emergency, x x x or disturbance of peace and order." Act No. 3436, as amended by Republic Act No. 7082, thus reads:
Sec. 10. A special right is hereby reserved to the President of the Philippines in times of war, rebellion, public peril, calamity, emergency, disaster, or disturbance of peace and order to take over and operate the transmitting, receiving, and switching stations or to authorize the temporary use and operation thereof by any department of the Government upon due compensation to the grantee of said stations during the period when they shall be so operated. (Emphasis supplied)Fourth, under paragraph 2, Section 18, Article VII of the Constitution, a state of martial law may "authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are not able to function."60 However, this also needs a law to be enacted by Congress since a state of martial law does not suspend the operation of the 1987 Constitution and it is Congress that is empowered by law "to define, prescribe, and apportion the jurisdiction of various courts."61 To date, no statute confers jurisdiction on military courts and agencies over civilians where civil courts are unable to function. On the contrary, Republic Act No. 705562 even strengthened civilian supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees promulgated during the Marcos dictatorship.
"Alam mo, iyong Central Mindanao if you look at the map is in Central Mindanao kaya nga central, sa gitna. You have the two Lanaos," he said.This only confirms that there is no actual rebellion outside of Marawi City. However, the President feared a "spillover" to other areas of Mindanao because "it is easy to escape" from Marawi City "because there is no division in terms of land."
"When you declare martial law, you have to use your coconut, the grey matter between your ears. It's easy to escape because there is no division in terms of land. You can go anywhere, there can be a spillover," he added.64
Endnotes:
1 Annex "A" of Lagman Petition; Annex "A" of Cullamat Petition; Annex "A" of Mohamad Petition; Annex "10" of OSG Consolidated Comment.
2 OSG Consolidated Comment, pp. 6, 9-10; citations omitted.
3 Annex "A" of Lagman Petition; Annex "A" of Cullamat Petition; Annex "A" of Mohamad Petition; Annex "10" ofOSG Consolidated Comment.
4 Acronym of a group's full Arabic name, al-Dawla al-Islamiya fi al-Iraq wa al-Sham, translated as "Islamic State in Iraq and Syria."
5 Annex "B" of Lagman Petition; Annex "B" of Mohamad Petition; Annex "11" of OSG Consolidated Comment.
6 OSG Consolidated Comment, pp. 20-22.
7 II RECORD, CONSTITUTIONAL COMMISSION 392 (July 29, 1986).
8 The first paragraph of Section 15, Article VIII of the 1987 Constitution reads:
Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts. (Emphasis supplied)
9Julie's Franchise Corp. v. Ruiz, 614 Phil. 108, 117 (2009), citing Soriano v. Ombudsman, 610 Phil. 75 (2009) & Castro v. People, 581 Phil. 639 (2008).
10De Vera v. De Vera, 602 Phil. 886, 877 (2009).
11 Id.
12 OSG Consolidated Comment, pp. 23-26.
13 392 Phil. 618 (2000).
14 Id. at 642.
15 149 Phil. 547 (1971).
16 Id. at 592-594.
17 OSG Consolidated Comment, p. 27; OSG Memorandum, p. 45.
18 Id.
19 Supra.
20 II RECORD, supra note 7, at 409.
21 The following discussion on the quantum of evidence is taken from the Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. Macapagal-Arroyo, 684 Phil. 526, 595-598 (2012).
22 Section 2, Rule 133 of the Rules of Court reads in its entirety:
Sec. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is requited, or that degree of proof which produces conviction in an unprejudiced mind.
23Fortun, supra, at 596, quoting from the Brief of Amicus Curiae Father Joaquin Bernas, S.J.
24 In Manalo v. Roldan-Confesor, 290 Phil 311, 323 (1992), the Court held:
Clear and convincing proof is "x x x more than mere preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases x x x" while substantial evidence "x x x consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance x x x." Consequently, in the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order. (Citations omitted)
25 Section 1, Rule 133 of the Rules of Court reads in its entirety:
Sec. 1. Preponderance of evidence, how determined. - In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of the evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.
26 Raymundo v. Lunaria, 590 Phil 546, 553 (2008).
27 Section 5, Rule 133 of the Rules of Court provides:
Sec. 5. Substantial evidence. - In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
28Santos v. Orda, Jr., 634 Phil 452, 461 (2010).
29Viudez II v. Court of Appeals, 606 PhiL 337 (2009).
30 Id. at 349.
31 OSG Memorandum, pp. 49-51; TSN, 14 June 2017, pp. 210-211.
32 Aguilar v. Department of Justice, 717 Phil 789, 800 (2013).
33 People v. Court of Appeals, 361 Phil. 401, 410-413 (1999).
34 The definition of rebellion under the Revised Penal Code is the only legal definition of rebellion known and understood by the Filipino people when they ratified the 1987 Constitution.
35 Proclamation No. 216 states in part:
"WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that "the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or ay part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives."
36 An Act Punishing the Crime of Coup D'etat by Amending Articles 134, 135 and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as The Revised Penal Code, and for Other Purposes.
37Ladlad v. Velasco, 551 Phil. 313, 329 (2007).
38 During the deliberations of the Constitutional Commission, Fr. Bernas clarified:
FR. BERNAS. Let me just say that when the Committee decided to remove that, it was for the reason that the phrase "OR IMMINENT DANGER THEREOF" could cover a multitude of sins and could be a tremendous amount of irresistible temptation. And so, to better protect the liberties of the people, we preferred to eliminate that. x x x (I RECORDS, CONSTITUTIONAL COMMISSION 773 (July 18, 1986).
39 100 Phil. 90 (1956).
40 320 Phil. 481 (1995).
41 Supra note 37, at 329.
42 Jeoffrey Maitem, Broadcaster tells of encounter with Omar Maute, http://newsinfo.inquirer.net/906440/broadcaster-tells-of-encounter-with-omar-maute [last accessed June 22, 2017].
43 II RECORD, supra note 7, at 412.
44 Supra note 39, at 96.
45 Supra note 40, at 488.
46 Section 3 of R.A. No. 9372, otherwise known as the Human Security Act of 2007, defines terrorism in this wise:
Sec. 3. Terrorism. - Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:a. x x x.Sec. 4. Conspiracy to Commit Terrorism. - Persons who conspire to commit the crime of terrorism shall suffer the penalty offorty (40) years of imprisonment.
x x x x
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction), or underthereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.x x x x
- Presidential Decree No. 1613 (The Law on Arson);
- Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
- Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)
47 265 Phil. 325 (1990).
48 Id. at 336.
49 RULES OF COURT, Rule 113, Sec. 5.
50 Section 3, R.A. No. 4200 reads in pertinent part:
Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied)
51 Sec. 3 (j), R.A. No. 10173.
52 Sec. 12 (e), R.A. No. 10173.
53 Section 4 of R.A. No. 8239 reads in pertinent part:Sec. 4. Authority to Issue, Deny, Restrict or Cancel. x x x.54 522 Phil. 705 (2006).
x x x x
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines.
55 Id. at 790-792.
56 Id. at 788-789, 793-794.
57 R.A. No. 6826, Sec. 1.
58 Sec. 5 of R.A. No. 7966, entitled An Act Granting the ABS-CBN Broadcasting Corporation a Franchise to Construct, Install, Operate and Maintain Television and Radio Broadcasting Stations in the Philippines, and for Other Purposes, effective March 30, 1995; Sec. 1 of R.A. No. 10925, entitled An Act Renewing for Another Twenty-Five (25) Years the Franchise Granted to Republic Broadcasting System, Inc., Presently Known as GMA Network, Inc., Amending for the Purpose Republic Act No. 7252, Entitled "An Act Granting the Republic Broadcasting System, Inc. a Franchise to Construct, Install, Operate and Maintain Radio and Television Broadcasting Stations in the Philippines," effective April 21, 2017; Sec. 5 of R.A. No. 10818, entitled An Act Renewing the Franchise Granted to the Radio Mindanao Network, Inc. for Another Twenty-Five (25) Years or a Term that Shall Take Effect on April 18, 2016, effective May 18, 2016; Sec. 5 of R.A. No. 10753, entitled An Act Renewing the Franchise Granted to the Interactive Broadcast Media, Inc. to Another Twenty-Five (25) Years that Shall Take Effect on September 5, 2021, effective March 7, 2016; Sec. 1 of R.A. No. 10790, entitled An Act Amending the Franchise of Aliw Broadcasting Corporation and Renewing/Extending the Term Thereof to Another Twenty-Five (25) Years that Shall Take Effect on April 13, 2017, effective May 3, 2016; Sec. 5 of R.A. No. 10794, entitled An Act Renewing for Another Twenty-Five (25) Years and Expanding to Radio/Television Broadcasting, National in Scope, Throughout the Philippines, the Franchise Granted to Mabuhay Broadcasting System, Inc. under Republic Act No. 7395, Entitled "An Act Granting the Mabuhay Broadcasting System, Inc., a Franchise to Construct, Install, Operate and Maintain Radio Broadcasting Stations in the Island of Luzon and for Other Purposes," effective May 10, 2016; Sec. 1 of R.A. No. 10887, entitled An Act Amending the Franchise Granted to Byers Communications, Inc. under Republic Act No. 8107, Expanding Its Scope into National Coverage, and Renewing Its Term for Another Twenty-Five (25) Years, effective July 17, 2016.
59 Section 14 of R.A. No. 8479 reads in pertinent part:
Sec. 14. Monitoring. - a) x x x
x x x x
e) In times of national emergency, when the public interest so requires, the DOE may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any person or entity engaged in the industry.
60 Section 18, Article VII of the 1987 Constitution reads in pertinent part:
Sec. 18. x x x.
x x x x
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.
61 CONSTITUTION, Art. VIII, Sec. 2.
62 Entitled "An Act Strengthening Civilian Supremacy over the Military Returning to the Civil Courts the Jurisdiction over Certain Offenses Involving Members of the Armed Forces of the Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees," effective June 20, 1991.
63 See InterAksyon, Duterte praises Marcos' iron fisted rule, eyes declaring martial law nationwide http://www.interaksyon.com/duterte-praises-marcos-iron-fisted-rule-eyes-declaring-martial-lawnationwide/ [last updated May 26, 2017]; John Paolo Bencito, Rody: Martial law in entire PH if . . . http://manilastandard.net/news/top-stories/237568/rody-martial-law-in-entire-ph-if-.html [published May 25, 2017]; Audrey Modrallo, Duterte praises Marcos' Martial law as 'very good' http://www.philstar.com/headlines/2017/05/24/1703241/drawing-parallels-marcos-duterte-saysmartial-law-period-good [last updated May 25, 2017]; Michael Peel & Grace Ramos, Philippines' Duterte declares martial law on Mindanao home island https://www.ft.com/content/67736a20-3fd6-lle7-82b6-896b95f30f58?mhq5j=e3 [published May 24, 2017]; Duterte threatens martial law for all of Philippines http://www.japantimes.co.jp/news/2017/05/25/asiapacific/duterte-threatens-martial-law-philippines/#.WVuL07wQgU0 [published May 25, 2017]; Philippines' Duterte warns qf harsh measures as civilians flee fighting http://www.channelnewsasia.com/news/asiapacific/philippines-duterte-warns-terrorists-i-ll-beharsh-8878082 [last updated May 24, 2107]), attached as Annexes "A" to "A-5," respectively, of Lagman Memorandum.
64 Trisha Macas, Duterte on SC decision: Mindanao-wide martial law really needed to prevent spillover <http://www.gmanetwork.com/news/news/nation/616846/duterte-on-sc-decisionmartial-law-really-needed-to-prevent-spillover/story/> [last accessed July 5, 2017]. See also Sandy Araneta, Macon Ramos-Araneta & Maricel V. Cruz, Duterte, allies, foes give mixed reactions <http://manilastandard.net/news/top-stories/241072/duterte-allies-foes-give-mixedreactions.html> [last accessed July 5, 2017]; Dharel Placido, Duterte says he was right to place entire Mindanao under martial law <http://news.abs-cbn.com/news/07/04/17/duterte-says-hewas-right-to-place-entire-mindanao-under-martial-law> [last accessed July 5, 2017]; Nestor Corrales, Duterte: I respect dissenting opmwns on Mindanao martial law <http://newsinfo.inquirer.net/910896/duterte-i-respect-dissenting-opinions-on-mindanaomartial-law> [last accessed July 5, 2017].
VELASCO, JR., J.:
[I]f the principle be established that the commander who, under any circumstances whatsoever, assumed to enforce superior military power over the people and territory of his own country does so under ultimate legal responsibility for his acts, military rule is deprived of its terrors, and the law-abiding citizen sees in it nothing except the firm application for his benefit of the powerful military hand when civil institutions have ceased either wholly or at least effectively to perform their appropriate functions.1
From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code. The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution is to counter threat to public safety both in the present and in the future arising from present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether rebellion constitutionally exists as basis for Martial Law even if facts cannot obviously satisfy the requirements of the Penal Code whose concern is about past acts. To require that the President must first convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as defined in the Penal Code and jurisprudence can severely restrict the President's capacity to safeguard public safety for the present and the future and can defeat the purpose of the Constitution.Certainly, the urgency of the circumstances envisioned under Section 18, Article VII of the Constitution requires the President to act with promptness and deliberate speed. He cannot be expected to check the accuracy of each and every detail of information relayed to him before he exercises any of the emergency powers granted to him by the Constitution. The window of opportunity to quell an actual rebellion or thwart an invasion is too small to admit delay. An expectation of infallibility on the part of the commander-in-chief may be at the price of our freedom.
What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand of public safety are inseparably entwined. But whether there exists a need to take action in favour of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements. Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the imposition of Martial Law, the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction. Such decision involves the verification of factors not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing Martial Law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier jurisprudence were reluctant to override the executive's judgment.
In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far from different from the function of a iudge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.7
As to how the Court may inquire into the President's exercise of power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy the Court not that the President's decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."In line with this, the yardstick available to this Court in gauging "arbitrariness" is found in Section 1, Article VIII of 1987, which fortifies the expanded certiorari jurisdiction of this Court and, thus, allows it to "review what was before a forbidden territory, to wit, the discretion of the political departments of the government."11 Section 1, Article VIII of the Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The provision's relation to the "appropriate proceeding" mentioned in Section 18, Article VII was spelled out by former Chief Justice and Constitutional Commissioner Roberto Concepcion in his sponsorship speech. He said:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The first section starts with a sentence copied from former Constitutions. It says:Thus, where a proclamation of Martial Law is bereft of sufficient factual basis, this Court can strike down the proclamation as having been made with "a grave abuse of discretion amounting to lack or excess of jurisdiction." Otherwise, the President's determination of the degree of power demanded by the circumstances must stand.13 Resolving a challenge against the exercise of an emergency power, this Court held in Integrated Bar of the Philippines v. Zamora:14
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political question and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x
x x x x
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.12
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised.On this score, the President did not commit a grave abuse of discretion in issuing Proclamation No. 216, given the facts he was confronted with, including but not limited to the following:
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to be accorded respect from this Court.15
Two. Since President Arroyo withdrew her proclamation of Martial Law and suspension of the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The point is that the President intended by her action to address an uprising in a relatively small and sparsely populated province. In her judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed government presence.17Indeed, compared to the calling-out power of the President, the power to declare Martial Law is less benign and "poses the most severe threat to civil liberties."18 This Court's ruling in David v. Macapagal-Arroyo19 outlines the marked differences between the two emergency powers, thus:
Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action x x x.This Court in David would later cite Justice Vicente V. Mendoza when he stated that, specifically, the following powers can be exercised by the President as Commander-in-Chief where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus: "(a) arrests and seizures without judicial warrants(b) ban on public assemblies; [and] (c) take-over of news media and agencies and press censorship."21
x x x x
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law."
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
x x x x
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.20
Article 11, RPC:But Martial Law is by no means an arbitrary license conferred on the President and the armed forces. As it is borne out of necessity, so it is limited by necessity. Justice Teehankee eloquently explained this much:
ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
x x x x
4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
Article 432, NCC:
The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him.
Necessity limits both the extent of powers that may be exercised under Martial Law, and the duration of its exercise. No life may be taken, no individual arrested or confined, or held for trial, no property destroyed, or appropriated, no rights of the individual may be curtailed or suspended except where necessity justifies such interference with the person or the property. Any action on the part of the military that is not founded on the reasonable demands of necessity is a gross usurpation of power, illegal, unjustified, and improper. The broad mantle of Martial Law cannot cover acts illegal because not justified by necessity, nor proper under the circumstances. This principle is based not only upon the fundamental precepts of constitutionalism, but rests on sound reason-that where the action of the matter is not necessary for the public ends of the state they are illegal, and the mere fact that Martial Law exists will not be a ground for their justification.25Intrusions into the civil rights must be proportional to the requirements of necessity. Only such power as is necessary to achieve the object of quashing the rebellion or thwarting the invasion and restoring peace can be used. "It is an unbending rule of law that the exercise of military power when the rights of the citizen are concerned shall never be pushed beyond what the exigenct requires."26 Anything in excess of what is considered "military necessity"27 or is markedly removed from what is "needed in order to head the [rebellion or invasion] off"28 will render liable the officer who committed such ultra vires act. Surely, an act against chastity and the desecration of women is unjustified even in times of war. Such and similar acts remain violative of the laws, which continue to be effective even after Martial Law is proclaimed.
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.This is in conformity with the observations made in the seminal case of Ex Parte Milligan30 where the United States' Supreme Court, through Justice Davis, held:
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.29
x x x Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.The continuous operation of the 1987 Constitution, a safeguard embedded in the very provision bestowing upon the President the power to proclaim Martial Law, primarily ensures that no right will unnecessarily be obstructed or impaired during Martial Law and that "civilian authority is, at all times, superior over the military."32
x x x x
This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.31
I. What is the effect of a proclamation of martial law, does it suspend the constitution, and the laws of the State . . .?In answer, it was proposed that the source from which the power to proclaim Martial Law springs must be considered. Hence, if there is no Constitutional provision or statute expressly allowing an intrusion or limitation of a civil liberty, then it is not and will not be allowed.
II. Does the [President] of a state, by such proclamation, confer on himself, or on his military representatives, a supreme and unlimited power over all his fellow-citizens, within the space described, which suspends the functions of civil courts and magistrates and substitutes in their place the mere will of the military commander?
III. May the military disregard the writ of habeas corpus, or other process of the courts, if issued? Is the writ of habeas corpus in practical effect suspended by such proclamation?
IV. May a military commission, or summary courts, be established as a substitute for the ordinary civil courts, to try civilians for (a) felony, (b) misdemeanours, or (c) disobedience of orders and proclamations?
V. If so, is there any limit to the punishments which may be prescribed and inflicted? May the military confiscate property and levy fines, as well as imprison and put to death at their discretion?
VI. If they take life, or injure person or property, are the military authorities immune from civil suit or criminal prosecution for unreasonable acts done in excess of authority? Are the ordinary courts without jurisdiction to inquire into and review the legality of military measures?
VII. May the military shoot persons caught looting or in the commission of other crimes?
VIII. May the military arrest without warrant, merely on suspicion of complicity in the rioting, or other disturbances? May they forcibly enter and search private houses and seize property without a search warrant?
IX. May the military hold and detain persons so arrested on suspicion, for indefinite periods at their discretion, without charge of crime and without turning them over to the civil courts for trial?
X. May the military issue executive orders and proclamations to the citizens generally, having the force of law?
(a) x x x (b) May the military exercise a censorship over the press and suppress newspapers at their discretion? (c) May the military limit the right or privilege of peaceable public assembly? (d) May the military prescribe to employers what classes of laborers they shall or shall not employ? (e) May the military establish "dead lines" within which it is forbidden to civilians to go without a military pass, and so restrict the freedom of movement of peaceable citizens? (f) May the military confiscate arms, or forbid traffic in arms? (g) Will a sentry be justified in firing on a person disobeying his orders to halt, where such person is not attempting to carry out any felonious design?33
SECTION 5. Arrest Without Warrant; When Lawful.- A peace officer or a private person may, without a warrant, arrest a person:As the basis for the declaration of Martial Law-rebellion-is a continuing crime,35 the authorities may resort to warrantless arrests of persons suspected of rebellion under the foregoing provision of the Rules of Court.36 It must, however, be emphasized that the suspicion of rebellion upon which a warrantless arrest is made must be based on a probable cause, i.e., the ground of suspicion is supported by personal knowledge of facts and circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person sought to be arrested has "committed or is actually committing" the crime of rebellion. Thus, parenthetically, the general arrest orders must be issued by the Armed Forces on the basis of probable cause. Alternatively, it must be shown that the person to be arrested was caught in flagrante delicto or has committed or is actually committing an overt act of rebellion or any other offense in the presence of the arresting officer.
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
This Court, however, has held that it is the legislature, not the executive, which is the constitutional repository of police power,46 the existence of a national emergency, such as a rebellion or invasion, notwithstanding. Accordingly, the power to temporarily take over or direct the operation of any privately-owned public utility or business a(fected with public interest can only be done whenever there is a law passed by Congress authorizing the same. This Court, in David, explained as much:Temporary takeover of business affected with public interest in times of national emergency
Section 17, Article XII of the 1987 Constitution grants the State in times of national emergency the right to temporarily take over the operation of any business affected with public interest. This right is an exercise of police power which is one of the inherent powers of the State.
Police power has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the common good. Its definition in elastic terms underscores its all-encompassing and comprehensive embrace. It is and still is the "most essential, insistent, and illimitable" of the State's powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for just compensation for its paramount consideration is public welfare.
It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State cannot be negated by any party nor should its exercise be a source of obligation for the State.45
But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress.Indeed, the military must still be guided by law and jurisprudence and motivated by good faith in the exercise of the supreme force of the State even during a Martial law. Thus, in its endeavor to restore peace and preserve the state, the military must still make proper adjustments to the safeguards of constitutional liberty under the following legislations intended to protect human rights:47
Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other. Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof Youngstown Sheet & Tube Co. et al. v. Sawyer, held:
x x x x
The order cannot properly be sustained as an exercise of the President's military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . ."
x x x x
It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan, this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis.
x x x x
Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:Furthermore, the Fundamental Guarantees under Article 4 of the "Protocol Additional to the Geneva Conventions x x x relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)" remain binding:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.48
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.Our history justifies a heightened vigilance against the abuse of power, whether masked by Martial Law or otherwise. However, our fears should not hold us back from employing a power necessary to fight for our sovereignty and the integrity of our national territory under the auspices of democracy and civil authority. As we recognize the superiority of the 1987 Constitution even during Martial Law, so should we recognize and place our trust in the safeguards written and intertwined in the grant of the power to declare Martial Law. Let us concede that the framers of our Constitution, informed by lessons of history, guarded the "foundations of civil liberty against the abuses of unlimited power."51
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(b) collective punishments; (c) taking of hostages;
(d) acts of terrorism;
(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(f) slavery and the slave trade in all their forms; (g) pillage;
(h) threats to commit any of the foregoing acts.
3. Children shall be provided with the care and aid they require, and in particular:
(a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;
(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;
(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;
(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured;
(e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.49
These international commitments are incorporated into our laws not only by virtue of Section 2, Article II of the 1987 Constitution, but also by the domestic legislations previously enumerated.
Without a doubt, state agents-the members of the armed forceswho abuse their power and discretion under the proclaimed Martial Law and thereby violate their duty as the "protector of the people and the State"50 are criminally and civilly liable. And here lies the ultimate safeguard against the possible abuses of this emergency power-the ultimate responsibility of the officers for acts done in the implementation of Martial Law. To whom much is given, much will be required.
Endnotes:
1 Birkhimer, W.E., MILITARY GOVERNMENT AND MARTIAL LAW (3rd ed. revised, 1914), Kansas City, Missouri; emphasis supplied.
2 See U.S. v. Diekelman, 92 U.S. 520.
3 See Luther v. Borden, 7 How. 1.
4 CONSTITUTION, Art. II, Sec. 3.
5 Birkhimer, supra note 1.
6 684 Phil. 526, 631 (2012).
7 Emphasis and underscoring supplied.
8 Supra note 6.
9 Emphasis supplied.
10 522 Phil. 705, 854 (2006).
11 Id.
12 I Record of the Constitutional Commission 434-436 (1986); cited in Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R. Nos. 207132 & 207205, December 6, 2016.
13 See Luther v. Borden, 7 How. 1.
14 392 Phil. 618, 675 (2000).
15 Emphasis supplied.
16See Respondents Memorandum dated June 19, 2017, pp. 10-11.
17 Supra note 6. Emphasis supplied.
18David v. Macapagal-Arroyo, supra note 10.
19 Id.
20 Emphasis supplied.
21 Supra note 10.
22 Birkhimer, supra note 1.
23 Nachura, Antonio E.B., OUTLINE REVIEWER IN POLITICAL LAW 47; citing Philippine Press Institute v. COMELEC, G.R. No. 119694, May 22, 1995, 244 SCRA 272 and Quezon City v. Ericta, No. L-34915, June 24, 1983, 122 SCRA 759.
24Imbong v. Ferrer, 146 Phil. 30, 67 (1970); citing Gonzales v. Comelec, No. L-27833, April 18, 1969, 27 SCRA 835, 858; Justice Douglas in Elfbrandt v. Russel, 384 U.S. 11, 18-19, 1966.
25 J. Teehankee's Dissenting Opinion in Aquino, Jr. v. Military Commission No. 2, No. L-37364, 159-A Phil. 163-291 (1975); citing Santos, Martial Law, 2nd ed., pp. 17-78, citing Winthrop, p. 820; Fairman, p. 48; Wiener, p. 14. Emphasis supplied.
26Raymondv. Thomas, 91 U.S. 712.
27 "The necessity of employing measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian Law." Republic Act No. 9851, Sec. 3(1).
28Moyer v. Peabody, 212 U.S. 78.
29 Emphasis and underscoring supplied.
30 71 U.S. 2 (4 Wall.) (1866).
31 Emphasis supplied.
32 CONSTITUTION, Art. II, Sec. 3.
33 Ballantine, Henry Winthrop. "Unconstitutional Claims of Military Authority." Journal of the American Institute of Criminal Law and Criminology, vol. 5, no. 5, 1915, pp. 718-743. JSTOR www.jstor.orglstable/1132541.
34Ex Parte Milligan, supra note 30.
35Umil v. Ramos, G.R. No. 81567, October 3, 1991, 202 SCRA 251.
36Sanlakas v. Reyes, 466 Phil 482, 548 (2004).
37 212 U.S. 78 (1909).
38 Ballantine, Heruy Winthrop. "Martial Law." Columbia Law Review, vol. 12, no. 6, 1912, pp. 529-538.
39People v. Rom, 727 Phil. 587, 607 (2014); citing Dimacuha v. People, 545 Phil. 406 (2007); People v. Martinez, G.R. No. 191366, December 13, 2010, 637 SCRA 791; Caballes y Taiño v. Court of Appeals, 424 Phil. 263, 290 (2002).
40Valeroso v. Court of Appeals, 614 Phil. 236, 255 (2009).
41Eastern Broadcasting Corp. v. Dans, Jr., 222 Phil. 151, 169 (1985).
42David, supra note 10.
43 BP 880, Sec. 3(c). "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.
44 465 Phil. 545, 586 (2004).
45 Emphasis supplied.
46Southern Luzon Drug Corp. v. Department of Social Welfare and Development, G.R. No. 199669, April 25, 2017; citing Ichong, etc., et al. v. Hernandez, etc., and Sarmiento, 101 Phil. 1155 (1957).
47Ocampo v. Enriquez, G.R. Nos. 225973, etc., November 8, 2016.
48 Emphasis supplied.
49 Emphasis supplied.
50 CONSTITUTION, Art. II, Sec. 3.
51Ex Parte Milligan, supra note 30.
LEONARDO-DE CASTRO, J.:
As previously stated, petitioners base their separate actions on Section 18, Article VII (entitled "Executive Department"), which reads: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, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;
WHEREAS, Section 18, Article VII of the Constitution provides that "x x x in case of invasion or rebellion, when the public safety requires it, he (the 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 x x x";
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that "the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other anned forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives";
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;
WHEREAS, today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord Two Thousand and Seventeen.
Sec. 18. The President shall be the Commander-in-Chief of all anned forces of the Philippines and whenever it becomes necessary, he may call out such anned 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.The above-quoted constitutional provision has laid to rest the issues that were the subject of lengthy debates in the cases of Lansang v. Garcia1 and Aquino v. Ponce Enrile,2 including those touching on the political question doctrine; the nature, extent and scope of martial law; and the respective constitutional boundaries or spheres of competence of the Executive Department, the Legislative Department and the Judiciary in relation to the proclamation by the President of martial law and the suspension of the privilege of the writ of habeas corpus.
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.)
SECTION 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. (Emphasis supplied.)Nonetheless, I must register my vigorous objection to the implication that a petition under Section 18, Article VII is the only appropriate proceeding wherein the issue of sufficiency of the factual basis of a declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus may be raised. It is my considered view that this issue may be raised in any action or proceeding where the resolution of such issue is germane to the causes of action of a party or the reliefs prayed for in the complaint or petition.
Pertinent to this question is the Court's adoption in Lansang of the doctrine of Sterling vs. Constantine enunciated through U.S. Chief Justice Hughes that even when the state has been placed under martial law x x x (W)hen there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case, the Federal judicial power extends (Art. 3, Sec. 2) and, so extending, the court has all the authority appropriate to its exercise. x x x. (Emphasis supplied, citation omitted.)A party may find cause to seek the nullification or prohibition of acts committed by government officials in the implementation of martial law on the ground of grave abuse of discretion in which case a petition for certiorari and/or prohibition may be his/her best judicial recourse. There is no constitutional or procedural bar for the issue of sufficiency of factual basis of a martial law proclamation to be raised in a petition for certiorari or prohibition should a party choose to avail of these remedies. It is jurisprudentially accepted that:
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1 [Article VIII of the 1987 Constitution].Pertinently, Fortun v. President Macapagal-Arroyo8 and its consolidated cases illustrate the diverse situations that may precipitate the filing of an "appropriate proceeding" under Section 18, Article VII. These situations can be gleaned from certain questions identified by the Court for resolution in connection with the threshold issue of whether there is sufficient factual basis for the issuance by then President Gloria MacapagalArroyo of Proclamation No. 1959, which declared martial law within the Province of Maguindanao, except for certain excluded areas. These issues were:
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.7
3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless arrests, searches and seizures;In Fortun and its consolidated cases, separate petitions for certiorari, petition for prohibition, and petition for certiorari, prohibition and mandamus were filed assailing the validity of Proclamation No. 1959 for lack of factual basis. While the majority opinion dismissed the petitions for being moot and academic, the separate opinions, whether concurring or dissenting, tacitly admitted the availability of the aforesaid special civil actions in questioning the validity of Proclamation No. 1959. This is implicit in the Dissenting Opinion of Justice Antonio T. Carpio (Justice Carpio) that the aforesaid petitions in Fortun and its consolidated cases may "prosper" as "any citizen" is clothed with legal standing to challenge the constitutionality of the declaration of martial law or suspension of the writ. Justice Carpio also opined that the Court should exercise its review power in Fortun and its consolidated cases which were filed as special civil actions as exceptions to the requirement of an actual case or controversy.9 Justice Presbitero J. Velasco, Jr. (Justice Velasco) was also in favor of entertaining the petitions as exceptions to the requirement of an actual controversy in exercising the power of judicial review. Verily, at the time that the Court was deliberating on Fortun, it was never contemplated that the petitions therein were improper modes of invoking the Court's review power over a martial law declaration.
x x x x
6. Whether this Court's determination of the sufficiency of the factual basis of the declaration of martial law or suspension of the writ, which in the meantime has been lifted and restored, respectively, would be essential to the resolution of issues concerning the validity of related acts that the government committed during the time martial law was in force. (Emphasis supplied.)
MS. QUESADA: But there is a possibility then that the Congress cannot be convened because many of its Members have already been arrested.It would be unjust, unreasonable and contrary to the orderly administration of justice to require a person who might have been illegally detained under martial law to file a petition for a writ of habeas corpus separately from a petition under Section 18, Article VII if he/she wishes to secure his/her liberty and at the same time question the constitutional validity of a proclamation of martial law or a suspension of the privilege of the writ of habeas corpus. That would be an inimical consequence of a ruling by this Court that the "appropriate proceeding" envisaged by the framers of our Constitution under Section 18, Article VII refers solely to a petition filed specifically for the purpose of questioning the sufficiency of the factual basis of a martial law proclamation or a suspension of the privilege of the writ of habeas corpus.
MR. RAMA: There is always that possibility; that is why I am narrowing that chance.
x x x x
MR.QUESADA: One of the assurances was that there were enough safeguards that the President would not just be able to use that power without some other conditions. So, are there any parts of the Constitution that would so protect the civilians or the citizens of the land?
MR. RAMA: Yes, there are safeguards.
MR. REGALADO: May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A petition for a writ of habeas corpus, if the Members [of Congress] are detained, can immediately be applied for, and the Supreme Court shall also review the factual basis.
x x x.12 (Emphases supplied.)
The right of a government to maintain its existence is the most pervasive aspect of sovereignty. To protect the nation's continued existence, from external as well as internal threats, the government "is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions" (Mr. Justice Bradley, concurring in Legal Tender Cases [US] 12 Wall. 457, 554,556,20 L. ed. 287, 314, 315). To attain this end, nearly all other considerations are to be subordinated. The constitutional power to act upon this basic principle has been recognized bl all courts in every nation at different periods and diverse circumstances.14The above-mentioned extraordinary powers vested by the Constitution under Section 18, Article VII upon the President as Commander-in-Chief of the Armed Forces of the Philippines implement the principle declared in Section 3, Article II of the Constitution, quoted below:
Sec. 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the state. Its goal is to secure the sovereignty of the State and the integrity of the national territory.In Carpio v. Executive Secretary,15 we held:
[T]he President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-in Chief provision "represent only a part of the organic duties imposed on him. All his other functions are clearly civil in nature." His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military. x x x."Rebellion, which is directed against the sovereignty and territorial integrity of the state, is a ground for the exercise of the second and third levels of emergency powers of the President, the existence of which is now invoked by the issuance of Proclamation No. 216.
All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes in themselves. Thus:In his dissenting opinion in Fortun, Justice Velasco states that the I Constitution does not require precision in establishing the fact of rebellion. In support of this, he cites an excerpt from the Brief of Amicus Curiae Fr. Joaquin Bernas, S.J., as follows:"This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. x x x" [Citing People v. Hernandez]The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping, etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.
From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code. The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution is to counter threat to public safety both in the present and in the future arising from present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether rebellion constitutionally exists as basis for martial law even if facts cannot obviously satisfy the requirements of the Penal Code whose concern is about past acts. To require that the President must first convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as defined in the Penal Code and jurisprudence can severely restrict the President's capacity to safeguard public safety for the present and the future and can defeat the purpose of the Constitution.In Aquino, the Court expounded on the sophisticated and widespread nature of a modern rebellion, which rings more true today, in this wise:
What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand of public safety are inseparably entwined. But whether there exists a need to take action in favour of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements. Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the imposition of martial law, the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction. Such decision involves the verification of factors not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing martial law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier jurisprudence were reluctant to override the executive's judgment.
In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far from different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.19 (Emphases supplied.)
The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.20To construe the existence of rebellion in the strict sense employed in the Revised Penal Code to limit martial law to places where there are actual armed uprising will hamper the President from exercising his constitutional authority with foreseeable dire consequences to national security and at great peril to public safety.
[T]hat judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.21 (Emphasis supplied.)Justice Antonio T. Carpio uses the test of "probable cause" to determine the sufficiency of factual basis of Proclamation No. 216, which in this case is the existence of rebellion in Mindanao. Justice Francis H. Jardeleza prefers to use "reasonableness," not arbitrariness. Justice Carpio cites the definition of probable cause as follows:
Probable cause has been defined as a set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the information or any offense included therein has been committed by the person sought to be arrested.22 (Emphasis supplied.)In a similar vein, Justice Jardeleza elucidated his view as follows:
Accordingly, the standard of review in determining whether actual rebellion exists and whether public safety requires the extraordinary presidential action should likewise be guided by reasonableness. As well put in an American case, reasonableness is "what from the calm sea level of common sense, applied to the whole situation, is not illegitimate in view of the end attained." Since the objective of the Court's inquiry under Article VII, Section 18 is to verify the sufficiency of the factual basis of the President's action, the standard may be restated as such evidence that is adequate to satisfy a reasonable mind seeking the truth (or falsity) of its factual existence. (Emphasis supplied, citations omitted.)While I do not subscribe to the meaning of rebellion advanced by Justice Carpio, his view on the quantum of proof to sustain the proclamation of martial law and the suspension of the writ, which is "probable cause," is consistent, I believe, with my view that the test to be applied to determine sufficiency of factual basis for the exercise of said Presidential power is reasonableness or the absence of arbitrariness. "Probable cause" and "reasonableness" are two sides with almost the same meaning or with little difference in degree of proof necessary. "Probable cause" and "reasonableness" are the same standards to sustain the assailed Presidential proclamation.
The President's action was neither capricious nor arbitrary. An arbitrary act is one that arises from an unrestrained exercise of the will, caprice, or personal preference of the actor (Webster's 3rd New International Dictionary, p. 110), one which is not founded on a fair or substantial reason (Bedford Inv. Co. vs. Folb, 180 P. 2d 361, 362, cited in Words & Phrases, Permanent Ed., Vol. 3-A, p. 573), is without adequate determining principle, non-rational, and solely dependent on the actor's will. (Sweig vs. U.S. D.C. Tex., 60 F. Supp. 785, Words & Phrases, supra, p. 562) x x x. (Emphases supplied.)Premises considered, there is an apparent consensus that "reasonableness" is the proper test to be used in these consolidated cases which is but the other side of the same coin as the "arbitrariness" test: what is reasonable is not arbitrary.
The danger of fusing the sufficiency-of-factual-basis test with the standard of arbitrariness/grave abuse of discretion is this: the sufficiency of the factual basis is being measured by grave abuse of discretion. This is problematic because the phrase "grave abuse of discretion" carries a specific legal meaning in our jurisdiction. It refers to such capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction; the abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. While inquiry into the sufficiency of factual basis may yield a finding consistent with the accepted definition of grave abuse of discretion, such as when the presidential proclamation was totally bereft of factual basis or when such factual basis had been manufactured by the executive, the correlation is not perfect. Good faith reliance on inaccurate facts, for instance, does not strictly satisfy the "capricious and whimsical" or "arbitrary or despotic" standard. By setting the sufficiency-of-factual-basis standard the Constitution foreclosed good faith belief as an absolute justification for the declaration of martial law or suspension of the privilege of the writ. Under Article VII, Section 18, the Court is vested with the power to revoke the proclamation, not because of grave abuse of discretion, but because of insufficiency of factual basis. (Citations omitted.)The concept of "good faith" or "bad faith" should not be confused with the test of "arbitrariness." "Good faith" or "bad faith" refers to the state of mind of a person. It is a concept different from the exercise of one's sound judgment in a given situation. Good faith in declaring martial law which is not based on sufficient facts will not justify the existence or continuation of martial law. If at all, good faith may have a bearing only the accountability of the President who declared martial law which does not meet the constitutional sufficiency test.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.In Maturan v. Commission on Elections,25 we explained:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
Grave abuse of discretion is committed "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." x x x. (Emphasis supplied.)Nevertheless, to discharge faithfully the Court's duty under Section 18, Article VII requires more than setting the test or standard. What is equally important is adopting the process or the manner by which the test or standard is properly applied. Hence, Justice Cecilia Muñoz Palma stressed the importance of how the test is applied in Aquino v. Ponce Enrile26 which I quote here:
[W]hile that may be true, as it is the Lansang decision is a "giant leap" in the interest of judicial supremacy in upholding fundamental rights guaranteed by the Constitution, for that reason I cannot agree that We discard said decision or emasculate it so as to render its ruling a farce. The test of arbitrariness of executive action adopted in the decision is a sufficient safeguard; what is vital to the people is the manner by which the test is applied by the Court in both instances, i.e., suspension of the privilege of the writ of habeas corpus and/or proclamation of martial law. (Emphasis supplied.)The procedure followed by the Court in Lansang was replicated in these cases where the Court assumed an active role in ascertaining whether or not there is evidence to show that the President's proclamation has sufficient or adequate factual basis. At its own initiative, the Court held a closed-door briefing by high-ranking defense and military officials in the presence of the Solicitor General and a representative of the petitioners, to be informed of classified information upon which the President acted. This is judicial activism consistent with the intent of Section 18, Article VII. To comply with its constitutional duty under said provision, the Court may opt not to strictly apply the usual rules on burden of proof, if in its sound judgment, the procedure it used complied with the requirement of due process of law.
9. There are four ISIS-linked local rebel groups that operate in different parts of Mindanao. These groups have formed an alliance for the purpose of establishing a wilayah, or Islamic province, in Mindanao. The four (4) groups, which find their roots in different parts of Mindanao, are as follows:These factual antecedents show that there is probable cause or reasonable ground to believe that the series of violent acts and atrocities committed by the Abu Sayyaf and Maute terrorist groups are directed against the political order in Mindanao with no other apparent purpose but to remove from the allegiance of the Republic of the Philippines the island of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety therein.x x x x
- The Abu Sayyaf Group from Basilan ("ASG-Basilan"), led by Isnilon Hapilon ("Hapilon");
- Ansarul Khilafah Philippines ("AKP"), also known as the Maguid Group, from Saranggani and Sultan Kudarat. The group is led by Mohammad Jaafar Maguid;
- The Maute Group from Lanao del Sur led by Omar Maute; and
- Bangsamoro Islamic Freedom Fighters ("BIFF"), based in the Liguasan Marsh, Maguindanao.
13. [I]n April 2016, the ISIS' weekly online newsletter, Al Naba, announced the appointment of ASG-Basilan leader, Hapilon, as the emir or leader of all ISIS forces in the Philippines. The appointment of Hapilon as its Philippine emir was further confirmed in a June 21, 2016 online video by ISIS entitled "The Solid Structure." The video hailed Hapilon as the mujahid authorized to lead the soldiers of the Islamic State in the Philippines.
14. The appointment by the ISIS of an emir in the Philippines furthered the unification of the local rebel groups. Sometime in June 2016, members of the different ISIS-linked local rebel groups consolidated in Basilan where its new emir operates his rebel group.
15. On December 31, 2016, Hapilon and about thirty (30) of his followers, including eight (8) foreign terrorists, were surveilled in Lanao del Sur. According to military intelligence, Hapilon performed a symbolic hijra or pilgrimage to unite with the ISIS-linked groups in mainland Mindanao. This was geared towards realizing the five (5)-step process of establishing a wilayah, which are: first, the pledging of allegiance to the Islamic State; second, the unification of all terrorist groups who have given bay'ah or their pledge of allegiance; third, the holding of consultations to nominate a wali or a governor of a province; fourth, the achievement of consolidation for the caliphate through the conduct of widespread atrocities and uprisings all across Mindanao; and finally, the presentation of all of these to the ISIS leadership for approval or recognition.
16. On the first week of January 2017, a meeting among these ISIS-linked rebel groups was supposed to take place in Butig, Lanao del Sur for the purpose of declaring their unified pledge of allegiance to ISIS and re-naming themselves as the Da'wahtul Islamiyah Waliyatul Mashriq ("DIWM"). This was, however, preempted by the death of Mohammad Jaafar Maguid (a.k.a. Tokboy), then leader of the AKP, coupled with the conduct of a series of military operations in the area.
17. The appointment by ISIS of an emir in the Philippines is already the third step in the establishment of a wilayah in Mindanao. Moreover, these groups now have the unified mission of wresting control of Mindanaoan territory from the government for the purpose of establishing a wilayah.27
[I]n case of invasion or rebellion, when the public safety requires it, [the 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. x x x (Emphasis supplied.)What is clear from this provision is a tacit acknowledgment that since the President possesses the means and wherewithal to access vital and classified information from the government's entire intelligence apparatus, he is given wide latitude to define the metes and bounds within which martial law or the suspension of the privilege of the writ of habeas corpus should take effect.
a. There had been six (6) kidnappings from January 2017 up to the present, resulting to sixteen (16) victims. Notably, three (3) of the victims were beheaded, five (5) were released and nine (9) others were rescued with twenty-seven (27) victims still being held in captivity;Furthermore, the AFP Intelligence Report, entitled "Timeline of ASG and Maute Collaboration" discloses that as early as April 18, 2017, Abdullah Maute had dispatched his followers to the cities of Marawi, Iligan, and Cagayan de Oro to conduct born bing operations, camapping, and "liquidation" of AFP and PNP personnel in the said areas.30
b. IED attack at a night market in Roxas Avenue, Davao City on September 2, 2016, leading to the death of fifteen (15) people and the injury of more than sixty (60) others;
c. On November 5, 2016, the ASG [Abu Sayyaf Group] abducted a German national, Juergen Kantner, and killed his wife, Sabine Merz;
d. Siege in Butig, Lanao del Sur from November 26 to December 1, 2016, which resulted in skirmishes with government troops and the eventual withdrawal of the group amid several fatalities;
e. On December 28, 2016, the members of BIFF [Bangsamoro Islamic Freedom Fighters] lobbed two (2) grenades at the provincial office of Shariff, Maguindanao;
f. On January 12, 2017, an IED exploded in Barangay Campo Uno, Basilan thereby killing one (1) civilian and injuring another;
g. On January 19, 2017, the ASG kidnapped three (3) Indonesian crew members near Bakungan Island, Tawi-tawi;
h. On January 29, 2017, the ASG detonated an JED in Barangay Danapah, Basilan resulting in the death of two (2) children and the wounding of three (3) others;
i. Ambush of military elements in Marawi City on February 16, 2017, to include MAJ JERICO P MANGALUS PA and one (1) enlisted personnel;
j. Carnapping in !ligan City on February 24, 2017 which led to government pursuit operations killing two (2) members identified as Azarn Taher AMPATUA and @WOWIE and the apprehension of Eyemen Canulo ALONTO in Tagoloan, Lanao del Norte on the same day;
k. On February 26, 2017, the ASG beheaded its German kidnap victim, Juergen Kantner in Sulu;
l. On March 5, 2017, Mrs Omera Lotao MADID was kidnapped in Saguiaran, Lanao del Sur by suspected Maute Group elements;
m. On April 11, 2017, the ASG infiltrated Inabanga, Bohol leading to firefights between the rebels and government troops;
n. On April 20, 2017, the ASG kidnapped SSgt. Anni Siraji and beheaded him three (3) days later; and,
o. From February to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in Mindanao. This resulted in the death and wounding of several military and civilian persons.29
Endnotes:
1 149 Phil. 547 (1971).
2 158-A Phil. 1, 132 (1974).
3 Section 5(1), Article VIII of the 1987 Constitution provides:
SECTION 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
4Shioji v. Harvey, 43 Phil. 333, 342 (1922).
5See Go Lea Chu v. Gonzales, 130 Phil. 767, 776-777 (1968) in relation to the counterpart Section 6, Rule 135 under the then prevailing Rules of Court.
6 Supra note 2 at 132.
7Araullo v. Aquino III, 737 Phil. 457, 531 (2014).
8 684 Phil. 526, 584 (2012).
9 Id. at 587-591.
10 Supra note 1.
11 Supra note 2.
12 Record of the 1986 Constitutional Commission No. 044, Vol. II, July 31, 1986, pp. 503-504.
13See, for example, Strategic Alliance Development Corp. v. Radstock Securities Ltd., 622 Phil. 431, 475 (2009), citing Solicitor General v. The Metropolitan Manila Authority, 281 Phil. 925, 933 (1991).
14 Justice Felix Q. Antonio, Separate Opinion in Aquino v. Ponce Enrile, supra note 2 at 288.
15 283 Phil. 196, 212 (1992).
16 99 Phil. 515, 520 521 (1956).
17 Section 3(b), Republic Act No. 9372 "Human Security Act of 2007."
18 267 Phil. 603, 611-612 (1990).
19Fortun v. President Macapagal-Arroyo, supra note 8 at 629-630.
20Aquino v. Ponce Enrile, supra note 2 at 48-49.
21Lansang v. Garcia, supra note 1 at 594.
22Fortun v. President Macapagal-Arroyo, supra note 8 at 597-598.
23 Webster's Ninth New Collegiate Dictionary (1986), p. 99.
24 Supra note 2 at 483.
25 G.R. No. 227155, March 28, 2017.
26 Supra note 2 at 483.
27 Memorandum of Respondents dated June 19, 2017, pp. 5-8.
28Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).
29 Memorandum of Respondents dated June 19, 2017, pp. 73-74.
30 Id. at 74, referring to Annex "7" of the Affidavit of Eduardo Año dated June 17, 2017.
PERALTA, J.:
a. is required to be factually correct or only not arbitrary in his appreciation of the facts;3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual actions that have been taken by Congress jointly or separately;
b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense;
c. is required to take into account only the situation at the time of the proclamation, even if subsequent events prove the situation to have not been accurately reported;
a. What are the parameters for review?5. Whether the exercise of the power of judicial review by this Court involves the calibration of the graduated powers granted the President as Commander-in-Chief, namely: calling out powers, suspension of the privilege of the writ of habeas corpus, and declaration of martial law;
b. Who has the burden of proof?
c. What is the threshold of evidence?
a. with its inclusion of "other rebel groups," or7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are sufficient basis:
b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;
a. for the existence of actual rebellion;8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas corpus;
b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire Mindanao region;
a. have the effect of recalling Proclamation No. 55, s. 2016; orIn a democratic and republican State such as ours, everyone must abide by the Rule of Law. More so, in momentous events affecting the life of the nation and the welfare of its people it is imperative to properly determine how powr is to be allocated, exercised and recognized vis-a-vis the competing mandate of the three equal branches of the government to safeguard the civil liberties of the sovereign from whom their authority emanates. That is the gist of the issues presented in this case. Here, President Duterte, pursuant to his constitutional powers, has proclaimed martial law and suspended the privilege of the writ of habeas corpus. Apparently, the Congress has manifested its approbation thereto. Now, the Court is pleaded to discharge its solemn duty, similarly conferred by the Fundamental Law, to review the sufficiency of the factual basis of the President's action.
b. also nullify the acts of the President in calling out the Armed Forces to quell lawless violence in Marawi and other parts of the Mindanao region.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.1The aforequoted provision constitutionalized the ruling in In the Matter of the Petition for Habeas Corpus of Lansang et al.2 as it appears clear that paragraph 2, Section 1, Article VIII of the Constitution incorporates in the Fundamental Law the teaching therein.3 It was observed that:
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.Given the Lansang background of paragraph 2, Section 1, Article VIII, it is appropriate to echo what the Court said way back in 1971, which pronouncement finds vitality, illumination and relevance today as it was then, if not more in view of the many features of the present Constitution that were influenced by the Marcos martial law experience. We held in Lansang:
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an exercise of authoritarian power. x x x The Constitution was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the political question doctrine. We are compelled to decide what would have been non-justiceable under our decisions interpreting earlier fundamental charters.4
The first major question that the Court had to consider was whether it would adhere to the view taken in Barcelon v. Baker and reiterated in Montenegro v. Castañeda, pursuant to which, "the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed, had said question been decided in the affirmative, the main issue in all of these cases, except L-34339, would have been settled, and, since the other issues were relatively of minor importance, said cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the Court had authority to and should inquire into the existence of the factual bases required by the Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their views thereon. Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that -The foregoing considered, it necessarily follows that the "appropriate proceeding" under paragraph 3, Section 18, Article VII of the Constitution refers to the certiorari jurisdiction of the Court where the inquiry is on whether the President acted arbitrarily.6 The proper role of the Supreme Court, in relation to what it has been given as a duty to perform whenever the Commander-in-Chief proclaims martial law or suspends the privilege of the writ of habeas corpus, is merely to determine whether he acted with grave abuse of discretion amounting to lack or excess of jurisdiction. It is not for Us to rule on whether he decided rightly or otherwise, but whether he acted without factual basis, hence, acted whimsically or capriciously. If he had factual basis, there was no arbitrariness. We cannot second guess what he should have done under the prevailing circumstances. If the President was wrong in his assessment and in exercising his judgment call, he shall be answerable to the people and history and not to this Court.x x x a majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for all persons detained or to be detained for the crimes of rebellion or insurrection throughout the Philippines, which area has lately been reduced to some eighteen provinces, two subprovinces and eighteen cities with the partial lifting of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, Sec. 1, par. 14, and Article VII, Sec. 10, par. 2, of the Philippine Constitution; and considering that the members of the Court are not agreed on the precise scope and nature of the inquiry to be made in the premises, even as all of them are agreed that the Presidential findings are entitled to great respect, the Court RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30A.M.In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A x x x and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, Sec. 1, par. 14, and Article VII, Sec. 10, par 2, of the Philippine Constitution x x x." Upon further deliberation, the members of the Court are now unanimous in the conviction that it has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency thereof.
x x x x
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended x x x." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" - or, under Art. VII of the Constitution, "imminent danger thereof' - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." Far from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or not. The untrarnmelled enjoyment and exercise of such right which, under certain conditions, may be a civic duty of the highest order - is vital to the democratic system and essential to its successful operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of Law such as by ising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent - no matter how emphatic or intemperate it may be - for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse - when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied - to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.
x x x x
Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative finding; no quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion," even if other minds equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence - in the sense in which the term is used in judicial proceedings - before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, the view that:x x x If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio . . . With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal . . .Relying upon this view, it is urged by the Solicitor General -x x x that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.5
1. That there be (a) public uprising, and (b) taking arms against the Government.In my interpellation during the oral argument, it has been established that public uprising and taking arms against the government are present, thus:
2. That the purpose of the uprising or movements is either -a. To remove from the allegiance to said Government or its laws:
(1) The territory of the Philippines or any part thereof; or
(2) 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 or prerogatives.
JUSTICE PERALTA:Although petitioner Lagman did not agree that the element of culpable purpose is present, his adamant position is contrary to what is actually happening in Marawi City. As pointed out by the OSG, the siege in the City cannot be characterized as merely a result of counter-measures against the government's pursuit of Isnilon Hapilon, but is, in fact, a strategic and wellcoordinated attack to overthrow the present government and to establish a wilayah in Mindanao. Needless to say, the Marawi siege shows a clear purpose to take over a portion of the Philippine territory.
For clarification, Congressman. Now, you could not admit that there is now public uprising in the Marawi City?
CONGRESSMAN LAGMAN:
There is public uprising, Your Honor, but there is no . . .
JUSTICE PERALTA:
Yah, there is also taking up arms rebellion against the government, you also admit that?
CONGRESSMAN LAGMAN:
Yes, Your Honor, we agree to that.
JUSTICE PERALTA:
What we are saying is that, because you believe that, what we are saying is that there are essential elements of rebellion: one, public uprising; two is taking up arms against the government. What you are disputing is that, the focus of public uprising and taking up arms against the government is not political?
CONGRESSMAN LAGMAN:
No, we are saying that essential element of culpable purpose is not present.
JUSTICE PERALTA:
That's correct, that's what I'm saying. So, the purpose of the violence or the taking up arms against the government is not political in nature?
CONGRESSMAN LAGMAN:
Yes, Your Honor, we can say that because it is merely to saw fear and apprehension, Your Honor.
JUSTICE PERALTA:
When do you say the purpose is not political? May I know why you are saying that the purpose of the. violence or taking up arms against the government is not political?
CONGRESSMAN LAGMAN:
Well, we just agreed with your statement, Your Honor, but if you see the context of the present violence in Marawi City, there is no culpable purpose of removing Marawi City from the allegiance to the Republic or there is no culpable purpose of depriving the President to exercise its powers and prerogatives because the channels of civilian and Military authority is not destructive.
JUSTICE PERALTA:
By the extent of the violence committed, Mr. Congressman, the Chief Executive is deprived of his power to enforce the laws in Marawi City?
CONGRESSMAN LAGMAN:
At the time the proclamation was issued, Your Honor, there was no such kind of multitude in the violence, no less than the Military officials hours before the President issued the Proclamation said that the situation is under control. What this abuse in the mind of the public, Your Honor, is that what is happening now in Marawi City is the aftermath of the declaration of martial law, which was not the reality of the ground when martial law was imposed.
JUSTICE PERALTA:
The Chief . . .
x x x x
CHIEF JUSTICE SERENO:
So, we can now resume the interpellation of Justice Peralta. Thank you.
JUSTICE PERALTA:
We, therefore, agree, Congressman, that there are two political purposes of rebellion. One is the removal of the allegiance from the government or any part of its laws, that's number one. Number two, is the deprivation of the Chief Executive or the Legislator in the exercise of its powers and prerogatives. Am I correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
JUSTICE PERALTA:
And then you said that presently, there is now a factual basis of the existence of rebellion, because it is now impossible for the President to exercise its power or the power enforcing the laws in Marawi, because of the e tent of violence, did I heard (sic) you right?
CONGRESSMAN LAGMAN:
Your Honor, I think that was not my statement. There is now a factual basis for rebellion.
JUSTICE PERALTA:
Now, do you agree now that the President can now exercise' its power to enforce the laws because of the extent of violence in Marawi City?
CONGRESSMAN LAGMAN:
Well, even without declaring martial law, Your Honor, the violence in Marawi City did not prelude the President from exercising its powers and prerogatives, because the channels of civilians and military authority are there.
JUSTICE PERALTA:
But I thought you said a while ago that there is no question that there is now public uprising. You also said that the violence, the taking up arms against the government is already there?
CONGRESSMAN LAGMAN:
Yes, Your Honor . . .
JUSTICE PERALTA:
So, all these essential elements are already present?
CONGRESSMAN LAGMAN:
The culpable purpose is not there.
JUSTICE PERALTA:
So, what was the culpable purpose?
CONGRESSMAN LAGMAN:
The culpable purpose, Your Honor, of rebellion, is to remove the Philippines or part thereof from allegiance to the republic or to prevent the President from the legislator from exercising its powers and prerogatives.
JUSTICE PERALTA:
So, what would you like the President to do under the circumstances?
CONGRESSMAN LAGMAN:
Under the circumstances, Your Honor, he has done what is supposed to do, except the fact that he declared martial law, because he could call the armed forces of the Philippines to subdue this terrorism being perpetrated.
JUSTICE PERALTA:
Despite the presence of public uprising and taking up arms against the government?
CONGRESSMAN LAGMAN:
Your Honor, the presence of an uprising, the presence of taking arms against the government is only one of the elements.
JUSTICE PERALTA:
That's what I was saying.
CONGRESSMAN LAGMAN:
It does not conclude or presume that the other element is present.
JUSTICE PERALTA:
That's what I was saying. How can the President exercise or execute the laws under the circumstances?
CONGRESSMAN LAGMAN:
Your Honor, he can, and he must be doing that, Your Honor.
JUSTICE PERALTA:
How?
CONGRESSMAN LAGMAN:
Because the channels of civilian and military commands [have] not been broken, Your Honor. As a matter of fact, the DND of Marawi City, the LGUs of the entire Mindanao region are existing and operational. He can exercise his prerogatives and powers through the channels of these local government units, including the functioning departments of the government.7
JUSTICE PERALTA:To limit the declaration of martial law and the suspenswn of the privilege of the writ of habeas corpus in Marawi City alone where there is actual rebellion verges on the absurd. If we are to follow a "piece-meal" proclamation of martial law, the President would have to declare it repeatedly. Where there is already a declaration of martial law and/or suspension of the privilege of the writ of habeas corpus, considering that rebellion is a continuing crime, there is no need for actual rebellion to occur in every single town or city of Mindanao in order to validate the proclamation of martial law or suspension of the privilege of the writ of habeas corpus in the entire island. Indeed, there is no need for a separate declaration because the declaration itself already covers the whole of Mindanao.
Okay, I'll go to another point. Do [you] agree that the crime of rebellion is a continuing offense?
CONGRESSMAN LAGMAN:
Well, yes, there are jurisprudence to that effect, Your Honor.
JUSTICE PERALTA:
In other word . . .
CONGRESSMAN LAGMAN:
But I would say that rebellion should not be extrapolated.
JUSTICE PERALTA:
No, I'm not after that. The other meaning of continuing offense is that; several acts are committed in different places, but their purpose is the same, do you agree with that?
CONGRESSMAN LAGMAN:
Yes, Your Honor, but in this particular case, the acts are not committed in other places.
JUSTICE PERALTA:
No, I'm not going to that yet, I will ask that question later, Congressman. What is the principle of continuing offense, you agree with that, the other principle of continuing offense?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
JUSTICE PERALTA:
That several acts might be committed in different places?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
JUSTICE PERALTA:
But the purpose is the same?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
JUSTICE PERALTA:
Now, if assuming this is hypothetical, assuming that there is rebellion in Marawi City, and some of the acts are committed outside Marawi City, supposing the guns come from the nearby town of Marawi City and the other members of the rebel groups are based in that place and they bring their guns inside Marawi City. Will that not be rebellion in the other place?
CONGRESSMAN LAGMAN:
In the first place, Your Honor, that hypothetical question is not actually happening in Marawi City and other parts of Mindanao region.
JUSTICE PERALTA:
Supposing it happens, will it not be covered by the principle of continuing offense? If the acts are committed in another place and the actual rebellion takes place in another place, all of them will be liable under the theory of conspiracy.
CONGRESSMAN LAGMAN:
When we say, Your Honor, that it's a continuing offense, that rebellion is a continuing offense, it assumes that the inculpatory elements of rebellion are present.
JUSTICE PERALTA:
Of course, we assume that, that's why it's hypothetical. Now, if there's a rebellion, I will not use anymore Marawi City, because you might be presuming that I'm referring martial law in Marawi. Supposing in one place, there is a rebellion ongoing, the declaration is to cover the whole area, outside the place where the actual rebellion is happening, can the President likewise cover the other areas nearby, as part of the declaration of rebellion?
CONGRESSMAN LAGMAN:
Your Honor, that may not be legally possible because with respect to the other areas, there is only an imminent danger of a rebellion and imminent danger has been deleted . . .
JUSTICE PERALTA:
What I understand from the deliberations of an imminent danger is, the initial declaration of martial law should not be based on imminent danger. Because if there is already a declaration of rebellion, you need not anymore ask or require imminent danger, because if there is a rebellion in one place, let's say in Marawi City, and then the rebels will go to the other place committing rebellion, the President will issue again a proclamation in that place? And then declare martial law in order to suspend the writ of habeas corpus in other place?
CONGRESSMAN LAGMAN:
While we say, Your Honor, that the President declares martial law, or suspends the privilege of the writ of habeas corpus, there must be an actual rebellion in the place occurring. When there is no actual rebellion in the other place because there is only a possibility that it is cover, I think that would, the imminent danger is not anymore ground.
JUSTICE PERALTA:
Can he not declare rebellion in Mindanao? Because Marawi City is part of Mindanao? You are suggesting that for every town that there is rebellion and declaration should be made?
CONGRESSMAN LAGMAN:
Yes, Your Honor, martial law can only be declared where there is actual rebellion in the coverage of President's proclamation.
JUSTICE PERALTA:
Yeah, because what I understand from the imminent danger as the reason why the possibility is that, in the initial proclamation of rebellion, under the old law, you can use that as a ground, but if the initial, if the proclamation is rebellion, that's it. It's covered in the Constitution.
CONGRESSMAN LAGMAN:
Rebellion, Your Honor, with respect to the place it is covered by marital law, not to other places where there is no rebellion or there is only a threat.
JUSTICE PERALTA:
But if the President declares Mindanao and Marawi City is part of Mindanao, what's wrong with it?
CONGRESSMAN LAGMAN:
Your Honor, Marawi City is only 0.0% of the entire Mindanao.
JUSTICE PERALTA:
But the groups who are involved are located in several places in Mindanao, some are based in Lanao, based in Davao, based in Basilan, based in Sulu, all of these places.
CONGRESSMAN LAGMAN:
That is only a threat, because of their presence there, but they have not activated, Your Honor. The word "a threat" is a key to imminent danger, it is not a ground.
JUSTICE PERALTA:
That's not what I mean, what I mean is that the President declares martial law in Mindanao, will that not cover the whole Mindanao because rebellion is taking place in Mindanao?
CONGRESSMAN LAGMAN:
Your Honor, that has no factual basis, the sufficiency of the basis of that declaration is not there because there is no rebellion in the other parts of Mindanao, particularly the areas mentioned yesterday by some members of this Honorable Court.
JUSTICE PERALTA:
Okay, so, the President should specifically declare certain place[s] where the actual rebellion is happening.
CONGRESSMAN LAGMAN:
Yes . . .
JUSTICE PERALTA:
So, if the rebellion will spread to the other towns, the President must declare, must again come out with the proclamation, declaring martial law in that place, is that your theory?
CONGRESSMAN LAGMAN:
Where there is actual rebellion in that place, Your Honor.
JUSTICE PERALTA:
Yeah, there is actual rebellion in the other place, so, the rebels are now in certain place[s]. They now expand the rebellion in the nearby town, so the President will declare another proclamation in that nearby town. If we follow the theory, that there is no imminent danger, [then] he can only declare martial law, when the actual rebellion already takes place in that nearby town.
CONGRESSMAN LAGMAN:
We are just following the intention of the Constitution, Your Honor, that there must be actual rebellion as the basis for the declaration of martial law.
JUSTICE PERALTA:
Of course, that's always the requirement, that there must be actual rebellion. Thank you, thank you, Congressman.
CONGRESSMAN LAGMAN:
Thank you, Your Honor.8
The gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, thus:Consistent with the nature of rebellion as a continuing crime and a crime without borders, the rebellion being perpetrated by the ISIS-linked rebel groups is not limited to the acts committed in Marawi City. The criminal acts done in furtherance of the purpose of rebellion, which are absorbed in the offense, even in places outside the City are necessarily part of the crime itself. More importantly, the ISIS-linked rebel groups have a common goal of taking control of Mindanao from the government for the purpose of establishing the region as a wilayah. This political purpose, coupled with the rising of arms publicly against the government, constitutes the crime of rebellion and encompasses territories even outside Marawi City, endangering the safety of the public not only in said City but the entire Mindanao.
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance 'to the Government the territory of the Philippine Islands or any part thereof,' then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.10
Endnotes:
1 1987 CONSTITUTION, Art. VIII, Sec. 1, par. 2.
2 149 Phil. 547 (1971).
3 See Marcos v. Manglapus, G.R. No. 88211, September 15, 1989, 177 SCRA 668, 696.
4 See Dissenting Opinion of Justice Hugo E. Gutierrez, Jr. in Marcos v. Manglapus, at 708. Likewise, In his separate opinion in Araullo v. Aquino III (G.R. No. 209287, July 1, 2014, 728 SCRA 1, 249), Justice Arturo D. Brion observed that "[t]his addition was apparently in response to the Judiciary's past experience of invoking the political question doctrine to avoid cases that had political dimensions but were otherwise justiciable. The addition responded as well to the societal disquiet that resulted from these past judicial rulings."
5In the Matter of the Petition for Habeas Corpus of Lansang, et al., supra note 2, at 577-594. (Citations omitted; emphasis in the original)
6Cf Aratuc v. Commission on Elections, 177 Phil. 205, 222-224 (1979), the Court, after noting the change in the phraseology in the 1973 Constitution, as against the 1935 Constitution, with regard to review of COMELEC decisions, pointed out:
Now before discussing the merits of the foregoing contentions, it is necessary to clarify frrst the nature and extent of the Supreme Court's power of review in the premises. The Aratuc petition is expressly predicated on the ground that respondent Comelec "committed grave abuse of discretion, amounting to lack of jurisdiction" in eight specifications. On the other hand, the Mandangan petition raises pure questions of law and jurisdiction. In other words, both petitions invoked the Court's certiorari jurisdiction, not its appellate authority of review.
This is as it should be. While under the Constitution of 1935, "the decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court" (Sec. 2, first paragraph, Article X) and pursuant to the Rules of Court, the petition for "certiorari or review" shall be on the ground that the Commission "has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme Court" (Sec. 3, Rule 43), and such provisions refer not only to election contests but even to pre-proclamation proceedings, the 1973 Constitution provides somewhat differently thus: "Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof (Section 11, Article XII), even as it ordains that the Commission shall be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials" (Section 2[2].)
x x x x
We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over orders, rulings and decisions of the Comelec is not as broad as it used to be and should be confmed to instances of grave abuse of discretion amounting to patent and substantial denial of due process. Accordingly, it is in this light that We shall proceed to examine the opposing contentions of the parties in these cases.
7 TSN, Oral Arguments, June 14, 2017, pp. 41-49.
8Id. at 49-54.
9 G.R. No. 112235, November 29, 1995, 250 SCRA 389.
10People v. Lovedioro, G.R. No. 112235, November 29, 1995, 250 SCRA 389, 394-395. (Emphasis ours)
BERSAMIN, J.:
If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.Another American case Duncan v. Kahanamoku7 - became the occasion to clarify that martial law, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."
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 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.Under the provision, the President has the leeway to choose his or her responses to any threat to the sovereignty of the State. He or she may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion; or, in case of invasion or rebellion, when the public safety requires it, he or she may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law for a period not exceeding 60 days.
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 of habeas corpus 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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
The Court should be cautious that it does not take a position in these consolidated cases that needlessly restricts our people's judicial remedies nor carelessly clips our own authority to take cognizance of the issue of constitutional sufficiency under Section 18, Article VII in any appropriate action that may be filed with the Court. Such would be antagonistic to the clear intent of the framers of the 1987 Constitution to empower our citizens and the Judiciary as a vital protections against potential abuse of the executive power to declare martial law and suspend the privilege of the writ of habeas corpus.
Endnotes:
1 See the concurring opinion of J. Barredo in Aquino v. Enrile, No. L-35546 September 17, 1974, 59 SCRA 183, which noted:Martial law pursuant to Proclamation No. 1081, however, does not completely follow the traditional forms and features which martial law has assumed in the past. It is modern in concept, in the light of relevant new conditions, particularly present day rapid means of transportation, sophisticated means of communications, unconventional weaponry, and such advanced concepts as subversion, fifth columns, the unwitting use of innocent persons, and the weapons of ideological warfare.2 Id., citing Johnson v. Jones, 44 Ill 142.
The contingencies which require a state of martial law are time-honored. They are invasion, insurrection and rebellion. Our Constirution also allows a proclamation of martial law in the face of imminent danger from any of these three contingencies. The Constitution vests the power to declare martial law in the President under the 1935 Constitution or the Prime Minister under the 1973 Constitution. As to the form, extent, and appearance of martial law, the Constitution and our jurisprudence are silent.
Martial law pursuant to Proclamation No. 1081 has, however, deviated from the traditional picture of rigid military rule super-imposed as a result of actual and total or near total breakdown of government.
Martial law was proclaimed before the normal administration of law and order could break down. Courts of justice were still open and have remained open throughout the state of martial law. The nationwide anarchy, overthrow of government, and convulsive disorders which classical authors mention as essential factors for the proclamation and continuation of martial law were not present.
More important, martial law under Proclamation No. 1081 has not resulted in the rule of the military. The will of the generals who command the armed forces has definitely not replaced the laws of the land. It has not superseded civilian authority. Instead of the rule by military officials, we have the rule of the highest civilian and elective official of the land, assisted by civilian heads of executive departments, civilian elective local officials and other civilian officials. Martial law under Proclamation No. 1081 has made extensive use of military forces, not to take over civilian authority but to insure that civilian authority is effective throughout the country. This Court can very well note that it has summoned and continues to summon military officers to come before it, sometimes personally and at other times through counsel. These military commanders have been required to justifY their acts according to our Constitution and the laws of the land. These military officers are aware that it is not their will much less their caprice but the sovereign will of the people under a rule of law, which governs under martial law pursuant to Proclamation No. 1081.
In addition, Thurman Arnold wrote about Martial Law in the Encyclopaedia of Social Sciences, viz.:
Martial law is a legal concept by which Anglo-American civil courts have sought in times of disorder to define the limits of executive or military control over citizens in domestic territory. It is analyzed in so many different ways, and there are so many theories as to its sanction that no definition can do more than express the most current legal impressions. Martial law is regarded as the substitution of the will of the executive or military commander for the process of the courts.
3 Id., citing State ex rel. O'Connor v. District Court in Shelby County, 219 Iowa 1165, 260 NW 73, 99 ALR 967; Ex parte McDonald, 49 Mont 454, 143 P 947; State ex rel. Grove v. Mott, 46 NJL 328.
4 Id., citing Ex parte Minigan, 71 US 2; Martin v. Mott, 25 US 19; Johnson v. Jones, 44 Ill 142; State ex ref. O'Connor v. District Court in Shelby County, 219 Iowa 1165, 260 NW 73, 99 ALR 967; Ex parte McDonald, 49 Mont 454, 143 P 947; Ex parte Lavinder, 88 W Va 713, 108 SE 428, 24 ALR 1178.
5Records of the Constitutional Commission No. 042, [July 29, 1986]:FR. BERNAS: That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:6 71 U.S. (4 Wall.) 2 (1866)A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies . . .The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.
7 327 U.S. 304 (1946)
8 53A Am Jur 2nd, Section 437, citing Luther v. Borden, 48 US 1.
9 Section 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
10 Section 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
x x x x
11 See the majority opinion, p. 22.
12 The 2010 Rules of the Presidential Electoral Tribunal (A.M. No. 10-4-29-SC dated May 4, 2010).
13Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 272.
14 Section 3 (m), Rule 131 of the Rules of Court.
15Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013, 701 SCRA 318.
16 Section 10, Rule 8 of the Rules of Court recites:Section 10. Specific denial. - A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a)17 Lieber, G. Norman, What is the Justification of Martial Law?, The North American Review, Vol. 163, No. 480 (Nov., 1896), pp. 549-563 (published by the University of Northern Iowa), quoting Dr. Francis Lieber's manuscript note entitled "Instructions for the government of the armies of the United States in the field," to wit:It has been denied that the government has any right to proclaim martial law, or to act according to its principles, in districts distant from the field of action, or declare it in larger districts than either cities or counties. This is fallacious. The only justification of martial law is the danger to which the country is exposed, and as far as the positive danger extends, so far extends its justification. (Bold underscoring supplied)
MENDOZA, J.:
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.As explained by revered constitutionalist Fr. Joaquin Bernas (Fr. Bernas), the martial law contemplated under the present Constitution pertains to the traditional concept of martial law as espoused in American Jurisprudence. Thus:
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.
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. [Emphases and underscoring supplied]
FR. BERNAS: That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:Justice lsagani Cruz wrote that "the declaration of martial law has no further legal effect than to warn the citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order and that while the emergency lasts, they must, upon pain of arrest and punishment, not commit any act which will in any way render difficult the restoration of order and the enforcement of law. When martial law is declared, no new powers are given to the executive; no extension of arbitrary authority is recognized; no civil rights of the individuals are suspended. The relation of the citizens to their State is unchanged."4
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies . . .
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.3 [Emphases supplied]
The Committee on the Executive has the honor to submit, for consideration and approval, Proposed Resolution No. 517, proposing to incorporate in the new Constitution an Article on the Executive. This Article on the Executive is based mainly on the many resolutions referred to our Committee for study and report. The members of the Committee have studied and discussed these resolutions which dealt with concrete instances of misuse and abuse of executive power during the Marcos regime especially after the declaration of martial law. The members of the Committee made an intensive and exhaustive study on the constitutional proposals contained in those resolutions intended to prevent a repetition of the misuse and abuse of executive power. At the same time, the members of the Committee were always on guard and careful in their intense desire to undo and correct the misdeeds and mistakes of the Marcos regime, because we might impose safeguards and restrictions which may be unreasonable and unduly harsh and which might emasculate our future presidents in the exercise of executive power.5 [Emphasis supplied]Clearly, the Framers were cognizant of the past abuses prevalent during the Marcos regime when they laid down the powers of the president under the Commander-in-Chief Clause. At the same time, they recognized the necessity to provide the president sufficient elbow room to address critical situations. Thus, the present Constitution is more stringent and more precise in contrast to past provisions because it imposed limitations on the exercise of the martial law power.
MR. REGALADO: If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article 135. I am not trying to pose as an expert about this rebellion that took place in the Manila Hotel, because what I know about it is what I only read in the papers. I do not know whether we can consider that there was really an armed public uprising. Frankly, I have my doubts on that because we were not privy to the investigations conducted there.Rebellion, as understood in the Constitution, is similar to the rebellion contemplated under the Revised Penal Code (RPC). Thus, in order for the president to declare martial law, he must be satisfied that the following requisites concur: (1) there must be a public uprising; (2) there must be taking up arms against the government; (3) with the objective of removing from the allegiance to the government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces; (4) the Chief Executive or the Legislature, wholly or partially, is deprived of any of their powers or prerogatives;7 and (5) the public safety requires it. In turn, the initial determination of the president must be scrutinized by the Court if any citizen challenges said declaration.
Commissioner Bernas would like to add something.
FR. BERNAS: Besides, it is not enough that there is actual rebellion. Even if we will suppose for instance that the Manila Hotel incident was an actual rebellion, that by itself would not justify the imposition of martial law or the suspension of the privilege of the writ because the Constitution further says: "when the public safety requires it." So, even if there is a rebellion but the rebellion can be handled and public safety can be protected without imposing martial law or suspending the privilege of the writ, the President need not. Therefore, even if we consider that a rebellion, clearly, it was something which did not call for imposition of martial law.
x x x
MR. REGALADO:It becomes a matter of factual appreciation and evaluation. The magnitude is to be taken into account when we talk about tumultuous disturbance, to sedition, then graduating to rebellion. All these things are variances of magnitude and scope. So, the President determines, based on the circumstances, if there is presence of a rebellion.
MR. DE LOS REYES: With the concurrence of Congress.
MR. REGALADO: And another is, if there is publicity involved, not only the isolated situations. If they conclude that there is really an armed public uprising although not all over the country, not only to destabilize but to overthrow the government, that would already be considered within the ambit of rebellion. If the President considers it, it is not yet necessary to suspend the privilege of the writ. It is not necessary to declare martial law because he can still resort to the lesser remedy of just calling out the Armed Forces for the purpose of preventing or suppressing lawlessness or rebellion.6 [Emphases supplied]
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority.10 [Emphases supplied]Under the calling-out-power, the president merely summons the armed forces to aid him in suppressing lawless violence, invasion and rebellion.11 The military merely supplements the police forces, with the latter having supervision over the former.
MR. NATMDAD: 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 a 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.As can be gleaned from the deliberations, the power of the Court to review the sufficiency of the factual basis for the declaration of martial law was precisely included to remove from the president the unbridled prerogative to determine the necessity thereof. It is a precautionary measure to prevent a repeat of possible abuses in cases where the awesome 'Power to declare martial law rests only on one individual. Consequently, the Executive Department cannot hide behind the cloak of the political question doctrine because the Constitution itself mandated the review, thus, unquestionably justiciable.
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.I notice in the Commissioner's proposal that he is requiring less factors for the suspension of the privilege of the writ of habeas corpus than for the declaration of martial law. Is that correct?
MR. PADILLA: That is correct.
x x x
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 basis 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.13 [Emphases supplied]
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. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.I agree with the ponencia that this should be set aside. There is nothing in the constitutional provisions or the deliberations which provide that it is only after Congress fails or refuses to act can the Court exercise its power to review. I am of the position that the Court can act on any petition questioning such sufficiency independently of the congressional power to revoke.x x x
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis.16
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.24Restricting the operation of the armed forces within the confines of Marawi City would be ineffective in quelling the uprising. The insurgents would simply cross city borders and be beyond the reach of the martial law authorities, who would not be able to exercise martial law powers. They will not be able to arrest any of them, unless they have personal knowledge of what the rebels have just committed, are committing or about to commit. Certainly, this is not what the Framers intended in including the martial law provisions in our Constitution. First and foremost in their minds were the security, safety, and territorial integrity of the country.
Endnotes:
1 The word 'Caliph' means successor, and designates the political leader of the Islamic community, or ummah. By using the language of Caliph and Caliphate, ISIS is attempting to establish itself as the leader of a worldwide Muslim movement and mobilize a broad coalition of support by erasing national boundaries. (http://www.huffingtonpost.com/2014/06/30/what-is-a-caliphate-meaning_n_5543538.html)
2 Annex "B," Consolidated Comment.
3 Records of the Constitutional Commission No. 42.
4 Cruz, Philippine Political Law (2002 Ed.), p. 227 citing Willoughby, 2nd Ed., Sec. 1056, pp. 1591-1592.
5 Records of the Constitutional Commission No. 42.
6 Records of the Constitutional Commission No. 42.
7 Article 134, Book II of the RPC.
8SANLAKAS v. Executive Secretary, 466 Phil. 482, 510-511 (2004).
9 392 Phil. 618 (2000).
10 Id. at 645-646.
11David v. Arroyo, 522 Phil. 705, 780 (2006).
12Supra note 8.
13 Records of the Constitutional Commission No. 43.
14Supra note 11, at 744.
15 684 Phil. 526 (2012).
16 Id. at 558-561.
17Heirs of Sevilla v. Sevilla, 450 Phil. 598, 612 (2003).
18Spouses Cheng v. Spouses Javier, 609 Phil. 434, 441 (2009).
19Apines v. Elburg Shipmanagement Philippines, Inc., G.R. No. 202114, November 9, 2016.
20 149 Phil. 547, 592-594 (1971).
21 Cited in the Dissenting Opinion of J. Velasco in Fortun, supra note 15, at 629.
22People v. Borje, G.R. No. 170046, December 10, 2014, 744 SCRA 399, 409.
23 Annex "B" of the Consolidated Comment.
24 Section 18, Article 7 of the 1987 Constitution.
REYES, J.:
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.In rebellion, it is not enough that there be a public uprising and taking arms against the Government, it must be shown that the purpose of the uprising or movement is either: first, to remove from the allegiance to the Government or its laws the territory of the Philippines or any part thereof or any body of land, naval, or other armed forces; or second, to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.5
Endnotes:
1 Separate Opinion of J. Antonio in Aquino v. Ponce Enrile, 158-A Phil. 1, 288 (1974), citing Mr. Justice Bradley, concurring in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315.
2 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 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.
x x x x
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.
x x x x
3See Black's Law Dictionary, 8th ed., p. 843.
4See Dissenting Opinion of J. Carpio in Fortun, et al. v. President Macapagal-Arroyo, et al., 684 Phil. 526, 591-592 (2012).
5See Ladlad v. Senior State Prosecutor Velasco, 551 Phil. 313, 329 (2007).
6See Separate Opinion of J. Antonio in Aquino v. Ponce Enrile, supra note 1.
7See Metropolitan Bank and Trust Company v. Hon. Gonzales, et al., 602 Phil. 1000, 1009 (2009).
8 1987 CONSTITUTION, Article VII, Section 18.
9See Dissenting Opinion of J. Tinga in Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 830 (2006).
10Republic Act No. 6975 known as the "Department of the Interior and Local Government Act of 1990", Section 24.
11 1987 CONSTITUTION, Article VII, Section 18.
12 Id.
13Reyes, Jr. v. Belisario, et al., 612 Phil. 936, 960 (2009).
14Bustillo, et al. v. People, 634 Phil. 547, 556 (2010).
15Garcia v. Philippine Airlines and/or Trinidad, 580 Phil. 155, 176 (2008).
16See Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).
17 Id.
18See Peralta, Jr., Perspectives of Evidence, 2005 ed., p. 269, citing 2 Jones Evidence, p. 514.
19 Id. at 275.
20 President's Report relative to Proclamation No. 216, pp. 4-5.
21 Office of the Solicitor General's Memorandum, p. 66.
22 Proclamation No. 216, fourth whereas clause.
23 Office of the Solicitor General's Memorandum, p. 5.
24 Id. at 7.
25 Id. at 9-11.
26 Id. at 11.
27Republic Act No. 6975, Section 24.
PERLAS-BERNABE, J.:
Section 18. x x x.As Section 18, Article VII confers unto this Court the power to review a particular class of cases, i.e., the factual basis of a martial law proclamation, it is clearly a jurisdiction-vesting provision, and not one that merely affects the exercise of jurisdiction.1 As explicitly worded, Section 18, Article VII does not merely pertain to the Court's "decision of x x x questions arising in the case;"2 nor "the correctness or righteousness of the decision or ruling made by [it]."3 Rather, it provides the "authority to hear and determine a cause - the right to act in a particular case."4
x x x x
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.
Section 3. Cases governed. - These Rules shall govern the procedure to be observed in actions, civil or criminal and special proceedings.A petition under Section 18, Article VII is not one whereby a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. In fact, there is no cause of action5 in this type of proceeding, as it is only intended to determine the sufficiency of the factual basis of a proclamation. In this limited sense, it can be argued that this proceeding, at most, resembles - albeit cannot be classified as - a special proceeding, which under the Rules of Court is "a remedy by which a party seeks to establish [among others] a particular fact"6 (that being the factual basis of a martial law proclamation).
(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.
x x x x
Section 5. The Supreme Court shall have the following powers:To my mind, the Court's jurisdiction in these cases should be considered to be general in nature as compared to its special jurisdiction under Section 18, Article VII, the latter being utilized only in one specific context, i.e., when the factual basis of a martial law declaration is put into question. In this relation, the rule in statutory construction of lex specialis derogat generali, which conveys that where two statutes are of equal theoretical application to a particular case, the one specially designed therefor should prevail,7 ought to apply.
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved.
x x x x
From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code. The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution is to counter threat to public safety both in the present and in the future arising from present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether rebellion constitutionally exists as basis for martial law even if facts cannot obviously satisfy the requirements of the Penal Code whose concern is about past acts. To require that the President must first convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as defined in the Penal Code and jurisprudence can severely restrict the President's capacity to safeguard public safety for the present and the future and can defeat the purpose of the Constitution.It is my opinion that Fr. Bernas' reasoning is equally relevant when comparing the function of the President under Section 18, Article VII to the functions of a prosecutor or a judge who determines probable cause to respectively file a criminal case in court or issue a warrant for the arrest of an accused. Hence, however reasonable, practical or expedient it may seem, it is my position that this Court should not apply the probable cause standard in a Section 18, Article VII case.
What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand of public safety are inseparably entwined. But whether there exists a need to take action in favour of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements. Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the imposition of martial law, the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction. Such decision involves the verification of factors not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing martial law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier jurisprudence were reluctant to override the executive's judgment.
In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.15 (Emphasis supplied)
The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily.20 (Emphasis supplied)The pertinent provisions on martial law under the 1935 and 1973 Constitutions respectively read:
Section 10, Article VII of the 1935 ConstitutionAs above-mentioned, these past constitutional provisions on martial law do not reflect the Court's power to 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 under the 1987 Constitution. Clearly, the variance in the constitutional context under which Lansang and Aquino, Jr. were decided negates the notion that the Framers of the 1987 Constitution applied the pronouncements made in those cases when they were crafting a novel constitutional provision which had no existing equivalent at that time. Thus, it is my impression that there could have been no contemporary construction of the term "sufficient factual basis" in reference to the Lansang and Aquino, Jr. pronouncements.
Section 10. x x x.
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.
x x x x
Section 12, Article IX of the 1973 Constitution
Section 12. The Prime Minister 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 18, Article VII is meant to provide additional safeguard against possible Presidential abuse in the exercise of his power to declare martial law or suspend the privilege of the writ of habeas corpus. Reeling from the aftermath of the Marcos martial law, the framers of the Constitution deemed it wise to insert the now third paragraph Section 18, Article VII. This is clear from the records of the Constitutional Commission when its members were deliberating on whether the President could proclaim martial law even without the concurrence of Congress. Thus:To adopt and validate the gauge of arbitrariness in a Section 18, Article VII case would dangerously emasculate this Court's power to serve as a potent check against the possible abuses of martial law. This is because the gauge of arbitrariness is the substantial equivalent of the concept of grave abuse of discretion which is one of the most difficult thresholds for a citizen-petitioner to hurdle since it denotes an abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act [at all] in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility."22 Notably, Fr. Bernas, one of the Framers of the new Constitution, stated that the new provision means more than just empowering the Court to review the suspension of the privilege of the writ of habeas corpus as held in Lansang. More significantly, he expressed that "[t]he new text gives to the Supreme Court the power not just to determine executive arbitrariness in the manner of arriving at the suspension but also the power to determine 'the sufficiency of the factual basis of the suspension'":
MR. SUAREZ: Thank you, Madam President.
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 o. 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:
x x x x
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 basis 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 Constitutions 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.21
What is the scope of this review power of the Supreme Court[?] It will be recalled that in Lansang v. Garcia the Supreme Court accepted the Solicitor General's suggestion that the Court go no further than to satisfy [itself] not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily. Is this all that the 1987 provision means?In fine, the parameters under our usual modes of review, much more the pronouncements in Lansang and Aquino, Jr., are clearly inappropriate references for this Court to divine the meaning of the term "sufficient factual basis" as a parameter in resolving a Section 18, Article VII petition.
The new provision quite obviously means more than just the empowerment in Lansang. The new text gives to the Supreme Court the power not just to determine executive arbitrariness in the manner of arriving at the suspension but also the power to determine the sufficiency of the factual basis of the suspension. Hence, the Court is empowered to determine whether in fact actual invasion and rebellion exists and whether public safety requires the suspension. Thus, quite obviously too, since the Court will have to rely on the fact-finding capabilities of the executive department, the executive department, if the President wants his suspension sustained, will have to open whatever findings the department might have to the scrutiny of the Supreme Court. It is submitted that the Supreme Court's task of verifying the sufficiency of the factual basis for the suspension will not be as difficult as under the old system because the 1987 Constitution has radically narrowed the basis for suspension.23
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 and underscoring supplied)In the case of Integrated Bar of the Philippines v. Zamora,28 this Court explained that:
[U]nder Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that "whenever it becomes necessary," the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers.29The deliberations of the Framers of the 1987 Constitution make it sufficiently clear that there must be an actual rebellion and not merely an imminent danger thereof, which was formerly, a ground to impose martial law under the 1935 and 1973 Constitutions but demonstrably deleted in the present Constitution. Fr. Bernas explained that the phrase imminent danger thereof "could cover a multitude of sins and could be a source of a tremendous amount of irresistible temptation. And so, to better protect the liberties of the people, we preferred to eliminate that."30 Commissioner Florenz D. Regalado (Commissioner Regalado) adds that:
There is a fear that the President could base the suspension of the writ on alleged intelligence reports which cannot be looked into and the veracity of which is dependent on the classification by the military. This could lead to a situation where these reports could easily be manufactured and attributed to anybody, without even the judiciary being in a position to refuse or look into the truth of the same.31In his opinion in the case of Fortun, Senior Associate Justice Antonio T. Carpio elucidated that the "[t]he term 'rebellion' in Section 18, Article VII of the 1987 Constitution must be understood as having the same meaning as the crime of 'rebellion' that is defined in Article 134 of the Revised Penal Code, as amended."32 Among others, he properly reasoned that:
[T]he Revised Penal Code definition of rebellion is the only legal definition of rebellion known and understood by the Filipino people when they ratified the 1987 Constitution. Indisputably, the Filipino people recognize and are familiar with only one meaning of rebellion, that is, the definition provided in Article 134 of the Revised Penal Code. To depart from such meaning is to betray the Filipino people's understanding of the term "rebellion" when they ratified the Constitution. There can be no question that "the Constitution does not derive its force from the convention which framed it, but from the people who ratified it."33The same thought is reflected m the exchange between Commissioners De Los Reyes and Regalado:
MR. DE LOS REYES: As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting, or actual attack on the legislature or Malacañang, for example? x x x.Under Article 134 of the Revised Penal Code (RPC), as amended by Republic Act No. 6968,35 rebellion is committed in the following manner:
MR. REGALADO: If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising, for the purposes mentioned in Article 134 and by the means employed under Article 135.34
[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives.36In People v. Lovedioro,37 this Court stated that "[t]he gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds."38
Apart and isolated from this plurality of crimes (ideal or real) is what is known as "delito continuado" or "continuous crime." This is a single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division. For Cuello Calon, when the actor, there being unity of purpose and of right violated, commits diverse acts, each of which, although of a delictual character, merely constitutes a partial execution of a single particular delict, such concurrence or delictual acts is called a "delito continuado." In order that it may exist, there should be "plurality of acts performed separately during a period of time; unity of penal provision infringed upon or violated and unity of criminal intent and purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim."44Anent its temporality, a "continuing offense" has been characterized as "a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy."45 It is "[o]ne consisting of a continuous series of acts which endures after the period of consummation x x x."46
[P]olitical crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippines Islands or any part thereof," then said offense becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.Accordingly, in light of the nature of rebellion (1) as a movement, (2) as a complex net of intrigues and plots, (3) as a continuing crime, and (4) as a political offense, it is my view that this Court cannot confine the concept of rebellion to the actual exchange of fire between the accused rebels and the forces of the government. As above-intimated, the taking up of arms against the government is only what consummates the crime of rebellion in order to prosecute those accused thereof under the RPC. However, up until that movement stops (for instance, when the rebels surrender or are caught by government operatives), it is my opinion that the rebellion continues to survive in legal existence.
x x x x
Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense [such as rebellion], are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.48
MR. DE LOS REYES: The public uprisings are not concentrated in one place, which used to be the concept of rebellion before.Likewise, we should not lose sight of a rebellion's intricate workings. Reconnaissance of government movement and espionage on military strategy are very well essential to both a brooding and an ongoing rebellion. The establishment of outposts and installations, escape routes and diversion points, all spread over numerous areas of interest, also entails tactical activity to further the rebellion. In the same vein, the recruitment/radicalization of conscripts and the resupply of provisions and arms, are incidents to a rebellion whose wheels have been put into motion.
MR. REGALADO: No.
MR. DE LOS REYES: But the public uprisings consist of isolated attacks in several places - for example in one camp here; another in the province of Quezon; and then in another camp in Laguna; no attack in Malacañang - but there is complete paralysis of the industry in the whole country. If we place these things together, the impression is clear that there is an attempt to destabilize the government in order to supplant it with the new government.49
The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modem setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence - all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.50We need not look any further than the published chronicles about the Abu Sayyaf Group (ASG) - currently led by Isnilon Hapilon (Hapilon) and affiliated with the Maute Group to paint a picture of how a rebellion may intricately operate:
Logistics, Tactics and Training of the ASGWith all of these in tow, I believe that the crime of rebellion defies our ordinary impression that a crime's occurrence can be pinpointed to a definite territory, much less its existence bounded to a particular moment in time. Because of its nature, rebellion is hardly compatible with the norms of spatial and temporallimitability, as usually applied in our criminal law. It is in this specific light that we should understand the concept of an actual rebellion under the Constitution's martial law provision.
x x x x
In tactics, the ASG fighters are capable of reinforcing beleaguered comrades when in the general area of conflict, or sometimes from one island to another island like in the case of the ASG from Basilan reinforcing comrades in Sulu by watercraft. It can conduct offensive action against platoon, section, or squad-sized military formations, and disable armor assets using rocket propelled grenades, 90mm, and 57 mm recoilless rifles. Its fighters usually employ "hit and run" tactics in view of their limited ammunition. Having no concern even for the Muslim residents, it resorts to hostage taking, to delay pursuing government troops and whenever cornered. Tactically, the ASG cannot sustain a prolonged armed engagement against the government forces. The islands and vast water area favors the ASG as it affords freedom of movement. Therefore, the curtailment of movement along mobility corridors would be their critical vulnerability.
The ASG creates political, economic, and social disorders to force Christians and non-Muslims to vacate areas it claims as its own. This is best exemplified by the ASG's raid and massacre in Ipil town mentioned earlier, but the results were obviously unfavorable to them. It has exploited the power of media to discredit the administration and prop up their cause. This included the use of a popular Filipino actor who is an Islam convert, as a negotiator in one of their hostage activity in their Basilan jungle hideout.
While some of the ASG members were former MNLF rebels, it is most certain that some of them were trained in the Middle East and Malaysia. Most of the recruits were locally trained on guerrilla warfare in Basilan and Sulu. Their training included combat tactics, demolition, marksmanship, and other military subjects. Comparatively speaking, the ASG is inferior to the military forces arrayed against it. However, the mastery of the terrain and ability to survive in extreme jungle conditions makes the ASG fighter more adept to his environment. This is a major challenge in Philippine counter terrorism operations.51
MR. REGALADO: x x x If they conclude that there is really an armed public uprising although not all over the country, not only to destabilize but to overthrow the government, that would already be considered within the ambit of rebellion. x x x.52At any rate, the 1987 Constitution or its deliberations did not mention anything regarding the need to show the presence of armed attacks all over a certain territory in order to declare martial law therein. The President is, in fact, empowered to "place the Philippines or any part thereof under martial law," provided that a rebellion already exists and that the public safety requires it.
These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.56In the same vein, this Court, in Villena v. The Secretary of the Interior,57 stated that:
There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law.58Considering the Constitution's clear textual commitment of the power to impose martial law to the President, this Court, in assessing compliance with Section 18, Article VII's public safety requisite, must give due deference to his prudential judgment in not only determining the need to declare martial law in the Philippines, but also determine its territorial coverage. However, as will be elaborated below, our deference to the President must be circumscribed within the bounds of truth and reason. Otherwise, our constitutional authority to check the President's power to impose martial law would amount to nothing but an empty and futile exercise.
[The] President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.60With these in mind, the Court's task - insofar as the second requisite under Section 18, Article VII is concerned - should therefore be limited to ascertaining whether the facts stated as basis for a martial law proclamation are reasonable enough to warrant its imposition and that its territorial extent is likewise rationally commensurate with the perceived exigencies attending an actual invasion or rebellion.
[The issue of] whether there exists a need to take action in favor of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements.61Truth be told, there are no fixed factors or requisites that go into this standard of reasonableness. However, as a guiding principle, this Court should always keep in mind that martial law is but a means to an end. It is an extraordinary measure that empowers the President to act as if he were a commanding general engaged in the theater of war;62 a legal mechanism which - as history has taught us - may bear unintended consequences to the liberties of our people. Therefore, this Court should always ask itself whether or not the President's call to impose martial law in a certain territory is rationally commensurate to the needs of the public. For after all, the dangers to society's well-being, both actual and perceived, are what justify the imposition of martial law.
(a) At 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various government and privately-owned facilities;Petitioners attempted to debunk some of the factual details attendant to the foregoing events with the following counter-evidence:65
(b) At 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the escape of inmates; killed a member of a PDEA; assaulted and disarmed on-duty personnel and/or locked them inside the cells; confiscated cellphones, personnel-issued firearms, and vehicles;
(c) By 4:30 PM, interruption of power supply; sporadic gunfights; citywide power outage by evening;
(d) From 6:00 PM to 7:00PM, Maute Group ambushed and burned the Marawi Police Station; commandeered a police car;
(e) BJMP personnel evacuated the Marawi City Jail and other affected areas;
(f) Control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell to the rebels;
(g) Road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;
(h) Burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncado Colony;
(i) Taking ofhostages from the church;
(j) Killing of five faculty members of Dansalan College;
(k) Burning of Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School;
(l) Overrunning of Amai Pakpak Hospital;
(m) Hoisting of ISIS flag in several areas;
(n) Attacking and burning of the Filipino-Libyan Friendship Hospital;
(o) Ransacking of a branch of Landbank of the Philippines and commandeering an armored vehicle;
(p) Reports regarding Maute Group's plan to execute Christians;
(q) Preventing Maranaos from leaving their homes;
(r) Forcing young Muslims to join their group; and
(s) Intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government personnel, and committing armed uprising against and open defiance of the Government.64
However, the counter-evidence presented by petitioners largely consist of uncorroborated news reports, which are therefore inadmissible in evidence on the ground that they are hearsay. In Feria v. Court of Appeals:66
FACTUAL STATEMENTS COUNTER EVIDENCE 1. that the Maute group attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among several locations. As of 0600H of 24 May 2017, members of the Maute group were seen guarding the entry gates of the Amai Pakpak Hospital and that they held hostage the employees of the Hospital and took over the PhilHealth office located thereat (Proclamation No. 216 and Report); Statements made by:
(a) Dr. Amer Saber, Chief of the Hospital;
(b) Health Secretary Paulyn Ubial;
(c) PNP Spokesperson Senior Supt. Dionardo Carlos;
(d) AFP Public Affairs Office Chief Co. Edgard Arevalo; and
(e) Marawi City Mayor Majul Gandamra denying that the hospital was attacked by the Maute Group citing on-line news articles of Philstar, Sunstar, Inquirer, and Bombo Radyo. 2. that the Maute Group ambushed and burned the Marawi Police Station (Proclamation No. 216 and the Report); Statements made by PNP Director General Ronald dela Rosa and Marawi City Mayor Majul Gandamra in the on-line news reports of ABS CBN New and CNN Philippines denying that the Maute group occupied the Marawi Police Station. 3. that lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its armored vehicles (Report); Statement made by the bank officials in the on-line news article of Philstar that the Marawi City branch was not ransacked but sustained damages from the attacks. 4. that the Marawi Central Elementary Pilot School was burned (Proclamation No. 216 and the Report); Statements in the on-line news article of Philstar made by the Marawi City Schools Division Assistant Superintendent Ana Alonto denying that the school was burned and Department of Education Assistant Secretary Tonisito Umali stating that they have not received any report of damage. 5. that the Maute Group attacked various government facilities (Proclamation No. 216 and the Report). Statement in the on-line news articles of Inquirer made by Marawi City Mayor Majul Gandamra stating that the ASG and the Maute Terror Groups have not taken over any government facility in Marawi City.
[N]ewspaper articles amount to "hearsay evidence, twice removed" and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted.67That being said, and without any other cogent reason to hold otherwise, the government's account of the May 23, 2017 events as abovedetailed are to be taken as true and correct. In fact, even if the objections of petitioners are admitted, there are other incidents which remain unrefuted.
Endnotes:
1 "Jurisdiction over the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers." (Reyes v. Diaz, 73 Phil. 484, 486 [1941].)
2 See Salvador v. Patricia, G.R. No. 195834, November 9, 2016.
3Palma v. Q & S, Inc., 123 Phil. 958, 960 (1966).
4 Id.
5 "Cause of action is defined as the act or omission by which a party violates a right of another." (Heirs of Magdaleno Ypon v. Ricaforte, 713 Phil. 570, 574 (2013), citing Section 2, Rule 2 of the Rules of Court.)
6 See Section 3 (c), rule I of the Rules of Court.
7 See Jalosjos v. Commission on Elections, 711 Phil. 414, 431 (2013).
8 The 2010 Rules of Procedure of the PET provide for the procedures on Revision of Votes, Technical Examination, Subpoenas, and Reception of Evidence, among others, in order to thresh out issues of fact raised in election protests and petitions for quo warranto.
9 See Section 1, Article VIII of the 1987 Constitution.
10 See Dissenting Opinion of Associate Justice Antonio T. Carpio in Fortun v. Macapagal-Arroyo, 684 Phil. 526, 597 (2012).
11 Id. at 598.
12 Id.
13 Id.
14 Cited in the Dissenting Opinion of Associate Justice Presbitero J. Velasco, Jr. in Fortun, id. at 629.
15 Id. at 629-630.
16 149 Phil. 547 (1971).
17 158-A Phil. 1 (1974).
18 See respondents' Memorandum dated June 19, 2017, pp. 45-46.
19In the Matter of the Petition for Habeas Corpus of Lansang, supra note 16, at 585-586.
20Aquino, Jr. v. Enrile, supra note 17, at 47.
21See ponencia, pp. 23-25, citing Record of the 1987 Constitutional Commission No. 043, Vol. II, July 30, 1986, pp. 476-477.
22Romy 's Freight Service v. Castro, 523 Phil. 540, 546 (2006); citation omitted.
23 Bernas, Joaquin G. The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., pp. 485-486, as cited in the ponencia, pp. 47-48.
24 See Concurring Opinion of Associate Justice Arturo D. Brion in Orceo v. Commission on Elections, 630 Phil. 670, 689 (2010), citing Ruben E. Agpalo, Statutory Construction, p. 180 (2003).
25 Id., citing Ruben E. Agpalo, Statutory Construction, p. 185 (2003).
26https://en.oxforddictionaries.com/definition/sufficient (visited June 30, 2017).
27https://www.merriam-webster.com/dictionary/sufficient (visited June 30, 2017).
28 392 Phil. 618, 643 (2000).
29 Id. at 643; emphasis and underscoring supplied.
30 I RECORD, CONSTITUTIONAL COMMISSION, 773 (July 18, 1986).
31 II RECORD, CONSTITUTIONAL COMMISSION, p. 474 (July 30, 1986).
32 Supra note 10, at 592.
33 Id. at 593.
34 II RECORD, CONSTITUTIONAL COMMISSION, p. 412 (July 29, 1986).
35 Entitled "AN ACT PUNISHING THE CRIME OF COUP D'ETAT BY AMENDING ARTICLES 134, 135 AND 136 OF CHAPTER ONE, TITLE THREE OF ACT NUMBERED THIRTY-EIGHT HUNDRED AND FIFTEEN, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER PURPOSES" (October 26, 1990).
36 See Section 2 of RA 6968.
37People v. Lovedioro, 320 Phil. 481 (1995).
38 Id. at 488; emphasis and underscoring supplied.
39 Reyes, Luis B., The Revised Penal Code, Book II, Eighteenth Edition (2012), p. 86; emphasis and underscoring supplied.
40https://www.merriam-webster.com/dictionary/gravamen (visited June 30, 2017).
41https://www.merriam-webster.com/dictionary/movement (visited June 30, 20 17).
42Gamboa v. Court of Appeals, 160-A Phil. 962, 969 (1975).
43 Id.
44 Id.
45 Reyes, Luis B., The Revised Penal Code, Book I, Eighteenth Edition (2012), p. 702, citing 22 C.J.S., 52; emphasis and underscoring supplied.
46https://dictionary.thelaw.com/continuous-crime/ (visited June 30, 2017); emphasis and underscoring supplied.
47People v. Hernandez, 99 Phil. 515 (1956).
48 Id. at 535-541.
49 II RECORD, CONSTITUTIONAL COMMISSION, p. 413 (July 29, 1986); Emphasis and underscoring supplied.
50Aquino, Jr. v. Enrile, supra note 17, at 48-49.
51http://www.dtic.mil/dtic/tr/fulltext/u2/a404925.pdf (visited June 30, 2017).
52 II RECORD, CONSTITUTIONAL COMMISSION, 413 (July 29, 1986); Emphasis and underscoring supplied.
53 Black's Law Dictionary, Eighth Edition, p. 1268.
54 Id. at 1625.
55 509 Phil. 486 (2005).
56 Id. at 518; emphases and underscoring supplied.
57 67 Phil. 451 (1939).
58 Id. at 462-463; emphasis supplied.
59Integrated Bar of the Philippines v. Zamora, supra note 28, at 644.
60Kulayan v. Tan, 690 Phil. 72, 90-91 (2012).
61Fortun v. Macapagal-Arroyo, supra note 10, at 629-630; emphasis and underscoring supplied.
62 II RECORD, CONSTITUTIONAL COMMISSION, p. 398 (July 29, 1986).
63 RULES OF COURT, Rule 132, Section 23. Public documents as evidence. - Documents consisting of entries in public records made in the perfonnance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter.
64 See Report of President Duterte to Congress, pp. 4-5.
65 See ponencia, pp. 63-64; emphases in the original.
66 382 Phil. 412 (2000).
67 Id. at 423; citations omitted.
68 Report of President Duterte to Congress, pp. 3-4.
69 Id. at 6.
70 See respondents' Consolidated Comment dated June 12, 2017, pp. 4-5.
71 See respondents' Memorandum, pp. 7-8.
72 See id. at 8.
73 Id. at 7.
74 See Petition (G.R. No. 231658), p. 15.
75 Report of President Duterte to Congress, p. 3.
76 Id.
77 Id.
78 Id. at 6.
79 Id.
80 Id.
81 Other events were cited by the government to demonstrate that the atrocities were not confined to Marawi City:
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno, Basilan. A civilian was killed while another was wounded.
b. On January 19, 2017, the ASG kidnapped three (3) Indonesians near Bakungan Island, Tawi Tawi.
c. On January 29, 20 17 the ASG detonated an IED in Barangay Danapah, Basilan resulting in the death of two children and the wounding of three others.
d. From February to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in Mindanao. This resulted in the death and wounding of several personalities.
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu.
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and government troops.
g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde.
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later. (See respondents' Memorandun, pp. 10-11.)
82 Report of President Duterte to congress, p. 6.
83 Id. at 7.
LEONEN, J.:
"Martial Law. The imposition of the highest-ranking military officer (the President being the Commander-in-Chief) as the military governor or as the head of the government. It is usually imposed temporarily when tlte government or civilian authorities fail to function effectively or when either there is near-violent civil unrest or in cases of major natural disasters or during conflicts or cases of occupations, where the absence of any other civil government provides for the unstable population."2 (Emphasis supplied)Even by their own definition, the armed forces do not seem to believe martial law to be necessary. Certainly, no civilian government in Mindanao is failing to function.
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 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.The Government posits that the "appropriate proceeding" referred to in Article VII, Section 18 is a petition for certiorari as evidenced by Article VIII, Section 1, which states:3
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 of habeas corpus 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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The Government further argues that by correlating Section 1 and Section 5(1)4 of Article VIII, a petition for certiorari becomes the sole "appropriate remedy" referred to under Article VII, Section 18 as it is the only "logical, natural and only recourse."5
Judicial power includes the duty of the courts of justice to settle actua1 controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of 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. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution.8The traditional concept of judicial review or "that the declaration of the unconstitutionality of a law or act of government must be within the context of an actual case or controversy brought before the courts,"9 calls for compliance with the following requisites before a court may take cognizance of a case:
(1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.10Despite adherence to its traditional jurisdiction, the Court has also embraced and acted on a more articulated jurisdiction provided for under Article VIII, Section 1 of the 1987 Constitution.11 In emphasizing the Court's jurisdiction, the 1987 Constitution broadened the Court's power of judicial review from settling actual controversies involving legally demandable and enforceable rights, to determining if a Government branch or instrumentality has committed grave abuse of discretion amounting to lack or excess of jurisdiction.12 By deliberately increasing the Court's power of judicial review, the framers of the 1987 Constitution intended to prevent courts from seeking refuge behind the political question doctrine to avoid resolving controversies involving acts of the Executive and Legislative branches, as what happened during martial law under President Ferdinand Marcos.13
It is clear that the Constitution explicitly clothes "any citizen" with the legal standing to challenge the constitutionality of the declaration of martial law or suspension of the writ. The Constitution does not make any distinction as to who can bring such an action. As discussed in the deliberations of the Constitutional Commission, the "citizen" who can challenge the declaration of martial law or suspension of the writ need not even be a taxpayer. This was deliberately designed to arrest, without further delay, the grave effects of an illegal declaration of martial law or suspension of the writ, and to provide immediate relief to those aggrieved by the same. Accordingly, petitioners, being Filipino citizens, possess legal standing to file the present petitions assailing the sufficiency of the factual basis of Proclamation No. 1959.18 (Emphasis in the original)The jurisprudential principle respecting the hierarchy of courts19 does not apply. The provision allows any petitioner to seek refuge directly with this Court. Nonetheless, the hierarchy of courts doctrine is not an iron-clad rule.20
Section 5. The Supreme Court shall have the following powers:However, the enumeration in Article VIII, Section 5 is far from exclusive as the Court was also endowed with original jurisdiction under Section 1 of the same article and over the sui generis proceeding under Article VII, Section 18.
1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
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, whenever during such period the necessity for such suspension shall exist.In Barcelon v. Baker,27 the Court limited its review of the suspension of the privilege of the writ of habeas corpus in Batangas to two (2) questions: (1) whether Congress was authorized to confer upon the President or the Governor-General the authority to suspend the privilege of the writ of habeas corpus and if the authority was indeed conferred; and (2) whether the Governor-General and the Philippine Commission acted within the authority conferred upon them.28
In short, the status of the country as to peace or war is legally determined by the political (department of the Government) and not by the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection must also decide when hostilities have ceased - that is, when peace is restored. In a legal sense the state of war or peace is not a question in pais for courts to determine. It is a legal fact, ascertainable only from the decision of the political department.29The Court in Barcelon reasoned out that each branch of government is presumed to be properly dispensing its distinct function and role within the framework of government, thus, "No presumption of an abuse of these discretionary powers by one department will be considered or entertained by another."30
Section 10Montenegro served as a strong reiteration of the political question doctrine:
. . . .
(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.
[I]n the light of the views of the United States Supreme Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the authority to decide whenever the exigency has arisen requiring the suspension belongs to the President and "his decision is final and conclusive" upon the courts and upon all other persons.32The policy of non-interference in Barcelon, as repeated in Montenegro v. Castañeda,33 was reversed unanimously34 by the Court in In the Matter of the Petition for Habeas Corpus of Lansang v. Garcia.35Lansang clarified that the Court "has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency therefor."36 The Court asserted that the President's power to suspend the privilege was limited and conditional, thus, the courts may inquire upon his adherence and compliance with the Constitution:
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended . . ." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" - or, under Art. VII of the Constitution, "imminent danger thereof" - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.37Nonetheless, the Court upheld President Marcos' suspension of the privilege of the writ of habeas corpus under Proclamation Nos. 889 and 889-A, ruling that the existence of a rebellion38 and that public safety39 necessitated the suspension of the privilege of the writ of habeas corpus were sufficiently proven by the Government.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.On September 22, 1972, President Marcos issued General Order No. 2 and this became the basis for the arrest and detention of the petitioners in the consolidated petitions of In the Matter of the Petition for Habeas Corpus of Aquino et al v. Ponce Enrile.41 Petitioners in Aquino were arrested and detained "for being participants or having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the Government by force."42
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.40
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muiioz Palma. They hold that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that there was no arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had not disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.45The President's Commander-in-Chief powers under the 1935 Constitution were merely repeated under the 1973 Constitution, particularly in Article VII, Section 11:
SEC. 11. 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 thereofunder martial law.Nine (9) years after the Aquino ruling, In the Issuance of the Writ of Habeas Corpus for Parong et al v. Enrile46 reverted to the ruling of political question and non-justiciability expounded on in Barcelon and Montenegro:
In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review.In his dissent, Justice Claudio Teehankee emphasized that Lansang recognized and deferred to the President's wisdom in determining the necessity of the suspension of the privilege of the writ of habeas corpus. Notwithstanding this recognition, the Court in Lansang acted within the scope of its power of judicial review when it established "the constitutional confines and limits of the President's power."48 The Court's exercise of judicial review was not meant to undermine the correctness or wisdom of the President's decision, but rather to ensure that "the President's decision to suspend the grivilege not suffer from the constitutional infirmity of arbitrariness."49
Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castañeda.47
Interpretation grounded on textual primacy likewise looks into how the text has evolved. Unless completely novel, legal provisions are the result of the re-adoption - often with accompanying re-calibration - of previously existing rules. Even when seemingly novel, provisions are often introduced as a means of addressing the inadequacies and excesses of previously existing rules.The expansion of judicial review from 1905 all the way to 1987 shows the unmistakable intent of the Constitution for the Judiciary to play a more active role to check on possible abuses by the Executive. Furthermore, not only was the Court given an express grant to review the President's Commander-in-Chief powers, it was also denied the discretion to decline exercising its power of judicial review.55 Thus, as it stands, the Court is duty bound to carefully and with deliberate intention, scrutinize the President's exercise of his or her Commander-in-Chief powers. The express grant likewise implies that the Court is expected to step in when the minimum condition materializes (i.e. an appropriate proceeding filed by any citizen) and review the sufficiency of the factual basis which led to the declaration or suspension.
One may trace the historical development of text: by comparing its current iteration with prior counterpart provisions, keenly taking note of changes in syntax, along with accounting for more conspicuous substantive changes such as the addition and deletion of provisos or items in enumerations, shifting terminologies, the use of more emphatic or more moderate qualifiers, and the imposition of heavier penalties. The tension between consistency and change galvanizes meaning.54
Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.Article VII, Section 16 provides:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution . . .Article XVI, Section 4 provides:
Section 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State.The President was called the "guardian of the Philippine archipelago" in Saguisag v. Ochoa, Jr.:58
The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole territory of the Philippines in accordance with the constitutional provision on national territory. Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.While the President is both the Chief Executive and the Commanderin-Chief, the President's role as a civilian Commander-in-Chief was emphasized in Gudani v. Senga:60
To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines (AFP), which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the State and the integrity of the national territory. In addition, the Executive is constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote the general welfare. In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities against external and internal threats and, in the same vein, ensure that the country is adequately prepared for all national and local emergencies arising from natural and man-made disasters.59
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.The President exercises the powers inherent to the positions of Chief Executive and Commander-in-Chief at all times. As a general principle, his execution of these powers is not subject to review. However, the powers provided under Article VII, Section 18, are extraordinary powers, to be exercised in extraordinary times, when the ordinary powers as Commanderin-Chief and Chief Executive will not suffice to maintain peace and order. Article VII, Section 18 constitutionalized the actions the President can take to respond to cases of invasion, rebellion, and lawless violence, but these are exceptions to the ordinary rule of law.
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the legislative and executive branches of government in relation to military affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of war. Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas corpus. The approval of the Commission on Appointments is also required before the President can promote military officers from the rank of colonel or naval captain. Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution is silent, except for the commander-in chief clause which is fertile in meaning and implication as to whatever inherent martial authority the President may possess.
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines . . ." Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commanderin-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.61
The power to declare a state of martial law is subject to the Supreme Court's authority to review the factual basis thereof. By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law[.]["]The other two extraordinary powers may be reviewed by Congress and the Judiciary, as they involve the curtailment and suppression of basic civil rights and individual freedoms.
Indeed, while the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation's supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.
In the case of Integrated Bar of the Philippines v. Zamora, the Court had occasion to rule that the calling-out powers belong solely to the President as commander-in-chief:When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis.Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power.
That the power to call upon the armed forces is discretionary on the president is clear from the deliberation of the Constitutional Commission:FR. BERNAS.In the more recent case of Constantino, Jr. v. Cuisia, the Court characterized these powers as exclusive to the President, precisely because they are of exceptional import:
It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can c ll out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.
. . . .
MR. REGALADO.
That does not reqmre any concurrence by the legislature nor is it subject to judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court.
. . . Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.63 (Emphasis in the original, citations omitted)
Called the "great writ of liberty[,]" the writ of habeas corpus "was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom." The remedy of habeas corpus is extraordinary and summary in nature, consistent with the law's "zealous regard for personal liberty."The Constitution does not spell out what martial law is, or the powers that may be exercised under a martial law regime. It only states what martial law is not, and cannot accomplish. The concept does not have a precise meaning in this jurisdiction. We have no legal precedent because President Ferdinand Marcos created an aberration of martial law in 1972. Thus, a historical approach at the concept may be edifying.
Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus "shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The primary purpose of the writ "is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal." "Any restraint which will preclude freedom of action is sufficient."
The nature of the restraint of liberty need not be related to any offense so as to entitle a person to the efficient remedy of habeas corpus. It may be availed of as a post-conviction remedy or when there is an alleged violation of the liberty of abode. In other words, habeas corpus effectively substantiates the implied autonomy of citizens constitutionally protected in the right to liberty in Article III, Section 1 of the Constitution. Habeas corpus being a remedy for a constitutional right, courts must apply a conscientious and deliberate level of scrutiny so that the substantive right to liberty will not be further curtailed in the labyrinth of other processes.
In Gumabon, et al. v. Director of the Bureau of Prisons, Mario Gumabon (Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito), Epifanio Padua (Padua), and Paterno Palmares (Palmares) were convicted of the complex crime of rebellion with murder. They commenced serving their respective sentences of reclusion perpetua.
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their sentences, this court promulgated People v. Hernandez in 1956, ruling that the complex crime of rebellion with murder does not exist.
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and Palmares filed a Petition for Habeas Corpus. They prayed for their release from incarceration and argued that the Hernandez doctrine must retroactively apply to them.
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares properly availed of a petition for habeas corpus. Citing Harris v. Nelson, this court said:
[T]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action . . . . The scope and flexibility of the writ - its capacity to reach all manner of illegal detention - its ability to cut through barriers of form and procedural mazes - have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.
In Rubi v. Provincial Board of Mindoro, the Provincial Board of Mindoro issued Resolution No. 25, Series of 1917. The Resolution ordered the Mangyans removed from their native habitat and compelled them to permanently settle in an 800-hectare reservation in Tigbao. Under the Resolution, Mangyans who refused to establish themselves in the Tigbao reservation were imprisoned.
An application for habeas corpus was filed before this court on behalf of Rubi and all the other Mangyans being held in the reservation. Since the application questioned the legality of deprivation of liberty of Rubi and the other Mangyans, this court issued a Writ of Habeas Corpus and ordered the Provincial Board of Mindoro to make a Return of the Writ.
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban. "[T]o exterminate vice," Mayor Justo Lukban of Manila ordered the brothels in Manila closed. The female sex workers previously employed by these brothels were rounded up and placed in ships bound for Davao. The women were expelled from Manila and deported to Davao without their consent.
On application by relatives and friends of some of the deported women, this court issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, among others, to make a Return of the Writ. Mayor Justo Lukban, however, failed to make a Return, arguing that he did not have custody of the women.
This court cited Mayor Justo Lukban in contempt of court for failure to make a Return of the Writ. As to the legality of his acts, this court ruled that Mayor Justo Lukban illegally deprived the women he had deported to Davao of their liberty, specifically, of their privilege of domicile. It said that the women, "despite their being in a sense lepers of society[,] are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens[.]" The women had the right "to change their domicile from Manila to another locality."
The writ of habeas corpus is different from the final decision on the petition for the issuance of the writ. It is the writ that commands the production of the body of the person allegedly restrained of his or her liberty. On the other hand, it is in the final decision where a court determines the legality of the restraint.
Between the issuance of the writ and the final decision on the petition for its issuance, it is the issuance of the writ that is essential. The issuance of the writ sets in motion the speedy judicial inquiry on the legality of any deprivation of liberty. Courts shall liberally issue writs of habeas corpus even if the petition for its issuance "on [its] face [is] devoid of merit[.]" Although the privilege of the writ of habeas corpus may be suspended in cases of invasion, rebellion, or when the public safety requires it, the writ itself may not be suspended.65
The term martial law refers to a summary form of criminal justice, exercised under direct or delegated royal authority by the military or police forces of the Crown, which is independent of the established processes of the common law courts, the ecclesiastical courts, and the courts which administered the civil law in England. Martial law is not a body of substantive law, but rather summary powers employed when the ordinary rule of law is suspended. "It is not law," wrote Sir Matthew Hale, "but something rather indulged than allowed as a law . . . and that only in cases of necessity."In the American case of Duncan v. Kahanamoku,67 martial law was defined as the "exercise of the military power which resides in the Executive Branch of Government to preserve order, and insure the public safety in domestic territory in time of emergency, when other branches of the government are unable to function or their functioning would itself threaten the public safety."68 In Ex Parte Milligan,69 Justice Davis noted a limit on this power, that "martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."70
. . . .
From the beginnings of summary procedure against rebels in the reign of Edward I until the mid-sixteenth century, martial law was regarded in both its forms as the extraordinary usages of war, to be employed only in time of war or open rebellion in the realm, and never as an adjunct of the regular criminal law. Beginning in the mid-1550s, however, the Crown began to claim the authority to expand the hitherto carefully circumscribed jurisdiction of martial law beyond situations of war or open rebellion and into territory which had been the exclusive domain of the criminal law . . .
The acts of rebellion of which armed bodies of the people have been guilty during the last few days at different points of the territory of this province, seriously disturbing public tranquillity, make it imperative that the most severe and exemplary measures be taken to suppress at its inception an attempt as cn.mm. a1as futile.72The first article declared a state of war against the eight (8) provinces, and the following nine (9) articles described rebels, their acts, and how they would be treated.73
The next day, Proclamation No. 30 was issued, which declared the existence of a state of war in the Philippines. The proclamation cited the attack by the United States and Great Britain in certain parts of the Philippines in violation of the territorial integrity of the Republic, causing death or injury to its citizens and destruction or damage to their property. The Proclamation also stated that the Republic entered into a Pact of Alliance75 with Japan, based on mutual respect of sovereignty and territories, to safeguard the territorial integrity and independence of the Philippines.76
- The respective Ministers of State shall, subject to the authority of the President, exercise direct supervision and control over all district, provincial, and other local governmental agencies in the Philippines when performing functions or discharging duties affecting matters within the jurisdiction of his Ministry and may, subject to revocation by the President, issue such orders as may be necessary therefor.
- The Philippines shall be divided into nine Military Districts, seven to correspond to the seven Administrative Districts created under Ordinance No. 31, dated August 26, 1944; the eight, to compromise the City of Manila; and the ninth, the City of Cavite and the provinces of Bulacan, Rizal, Cavite, and Palawan.
- The Commissioners for each of said Administrative Districts shall have command, respective!y, of the first seven military districts herein created, and shall bear the title of Military Governor; and the Mayors and Provincial Governors of the cities and provinces compromised therein shall be their principal deputies, with the title of deputy city or provincial military governor, as the case may be. The Mayor of the City of Manila shall be Military Governor for the eight Military District; and the Vice-Minister of Home Affairs, in addition to his other duties, shall be the Military Governor for the ninth Military District.
- All existing laws shall continue in force and effect until amended or repealed by the president, and all the existing civil agencies of an executive character shall continue exercising their agencies of an executive character shall continue exercising their powers and performing their functions and duties, unless they are inconsistent with the terms of this Proclamation or incompatible with the expeditions and effective enforcement of the martial law herein declared.
- It shall be the duty of the Military Governors .to suppress treason, sedition, disorder and violence; and to cause to be punished all disturbances of public peace and all offenders against the criminal laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed, the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay and in a summary manner, in accordance with such procedural rules as may be prescribed by the Minister of Justice. The decisions of courts of justice of the different categories in criminal cases within their original jurisdiction shall be final and unappealable. Provided, however, That no sentence of death shall be carried into effect without the approval of the President.
- The existing courts of justice shall continue to be invested with, and shall exercise, the same jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless otherwise directed by the President of the Republic of the Philippines.
- The several agencies of the Government of the Republic of the Philippines are hereby authorized to call upon the armed forces of the Republic to give such aid, protection, and assistance as may be necessary to enable them safely and efficiently to exercise their powers and discharge their duties; and all such forces of the Republic are required promptly to obey such call.
- The proclamation of martial law being an emergency measure demanded by imperative necessity, it shall continue as long as the need for it exists and shall terminate upon proclamation of the President of the Republic of the Philippines.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.The next day, on September 22, 1972, President Marcos promulgated General Order Nos. 1 to 6, detailing the powers he would be exercising under martial law.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.77 (Emphasis supplied)
1. Those involving the validity, legality or constitutionality of Proclamation No. 1081 dated September 21, 1972, or of any decree, order or acts issued, promulgated or [performed] by me or by my duly designated representative pursuant thereto. (As amended by General Order No. 3-A, dated September 24, 1972).General Order No. 4 imposed the curfew between the hours of 12 midnight and 4 o'clock in the morning wherein no person in the Philippines was allowed to move about outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-charge of his or her area of residence. General Order No. 4 further stated that any violation of the same would lead to the arrest and detention of the person in the nearest military camp and the person would be released not later than 12 o'clock noon the following day.81
2. Those involving the validity, legality or constitutionality of any rules, orders or acts issued, promulgated or performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081, dated Sept. 21, 1972.
3. Those involving crimes against national security and the law of nations.
4. Those involving crimes against the fundamental laws of the State.
5. Those involving crimes against public order.
6. Those crimes involving usurpation of authority, rank, title, and improper use of names, uniforms, and insignia.
7. Those involving crimes committed by public officers.
all rallies, demonstrations, and other forms of group actions by persons within the geographical limits of the Philippines, including strikes and picketing in vital industries such as companies engaged in manufacture or processing as well as in the distribution of fuel, gas, gasoline, and fuel or lubricating oil, in companies engaged in the production or processing of essential commodities or products for exports, and in companies engaged in banking of any kind, as well as in hospitals and in schools and colleges, are strictly prohibited and any person violating this order shall forthwith be arrested and taken into custody and held for the duration of the national emergency or until he or she is otherwise ordered released by me or by my designated representative.82General Order No. 6 imposed that "no person shall keep, possess, or carry outside of his residence any firearm unless such person is duly authorized to keep, possess, or carry such firearm and any person violating this order shall forthwith be arrested and taken into custody . . ."83
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.87In People of the Philippines v. Piedra,88 the Court explained that the rationale behind the doctrine is to give a person of ordinary intelligence a fair notice that his or her contemplated conduct is forbidden by the statute or the regulation.89 Thus, a statute must be declared void and unconstitutional when it is so indefinite that it encourages arbitrary and erratic arrests and convictions.90
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,95 the Court clarified that the void for vagueness doctrine may only be invoked in as-applied cases. The Court explained:
A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.94
found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant.96However, in Disini v. Secretary of Justice,97 the Court extended the application of the doctrine even to facial challenges, ruling that "when a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable."98 Thus, by this pronouncement the void for vagueness doctrine may also now be invoked in facial challenges as long as what it involved is freedom of speech.
Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides "that no person shall be deprived of his property without due process of law."In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,102 the Court held that the application of the overbreadth doctrine is limited only to free speech cases due to the rationale of a facial challenge. The Court explained:Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property . . . Property consists of the free use, enjoyment, and disposal of a person's acquisitions use, and dispose of it. The Constitution protects these essential attributes of property . . . Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land.101 (Citations omitted)
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.103The Court ruled that as regards the application of the overbreadth doctrine, it is limited only to "a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases."104
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire another's personal data.It is true that in his Dissenting Opinion in Estrada v. Sandiganbayan,107 Justice V.V. Mendoza expressed the view that "the overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes."108
. . . .
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.106 (Emphasis supplied, citations omitted)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or asapplied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).The Court then concluded that due to the rationale of a facial challenge, the overbreadth doctrine is applicable only to free speech cases. Thus:
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
. . . .
The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling effect on protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an in terrorem effect in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.110
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.As regards the application of the void for vagueness doctrine, the Court held that vagueness challenges must be examined in light of the specific facts of the case and not with regard to the statute's facial validity.112 Notably, the case need not be a freedom of speech case as the Court cited previous cases where the doctrine was applied:
. . . .
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression."111 (Emphasis in the original)
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases, the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132 (b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.113From these pronouncements, it is clear that what is relevant in the application of the void-for-vagueness doctrine is not whether it is a freedom of speech case, but rather whether it violates the Due Process Clause of the Constitution for failure to accord persons a fair notice of which conduct to avoid; and whether it leaves law enforcers unbridled discretion in carrying out their functions.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:General Order No. 1 did not provide further guidelines as to what powers would be executed under the state of martial law.
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
Section 3. Scope and Authority. The Armed Forces of the Philippines shall undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof, to ensure national integrity and continuous exercise by the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety.Thus, it appears that Proclamation No. 216 and General Order No. 1 not only authorize, but command, law enforcers to immediately arrest persons who have committed, are committing, or attempting to commit, any and all acts in relation to rebellion and lawless violence in Mindanao, without any guidelines for the citizens to determine what conduct they may be arrested for.
Further, the AFP and other law enforcement agencies are hereby ordered to immediately arrest or cause the arrest of persons and/or groups who have committed, are committing, or attempting to commit the abovementioned acts.
. . . .
Section 6. Role of Other Government Agencies and the Media. All other government agencies are hereby directed to provide full support and cooperation to attain the objectives of this Order.
The role of the media is vital in ensuring the timely dissemination of true and correct information to the public. Media practitioners are therefore requested to exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel, and enable them to effectively discharge their duties and functions under this Order.
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety." It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."116However, in Disini v. Secretary of Justice,117 the Court extended the application of the doctrine even to facial challenges, in cases where a penal statute attempts to encroach on freedom of speech.118 Here, General Order No. 1 orders law enforcement agencies to immediately arrest persons who have committed, are committing, or are attempting to commit "any and all acts in relation" to "all acts of rebellion and lawless violence in the whole of Mindanao." This description of the acts meriting arrest under General Order No. 1 is so vague that it could easily be construed to cover any manner of speech. This renders an invocation of the void-for-vagueness doctrine proper, even in a facial challenge such as this.
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.120That General Order No. 1 does not explicitly punish any acts of media will not save it from being declared as prior restraint. In Babst v. National Intelligence Board,121 this Court recognized that under certain circumstances, suggestions from military officers have a more coercive nature than might be immediately apparent:
Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can easily be taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril, especially where, as in the instant case, the invitation carries the ominous warning that "failure to appear . . . shall be considered as a waiver . . . and this Committee will be constrained to proceed in accordance with law." Fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation.122As in Babst v. National Intelligence Board,123 the "request" that media "exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel"124 can easily be taken as an authoritative command which one can defy only at his peril, particularly under a state of martial law, and especially where law enforcement personnel have been ordered to immediately arrest persons for committing undefined acts.
. . . .While clear about what martial law does not include, it does not define what the President will want to actually do as a result of the proclamation. A broad declaration of martial law therefore will not be sufficient to inform. It will thus immediately violate due process of law.
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 of habeas corpus 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 of habeas corpus.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powersGeneral Order No. 1 also issued by the President revises the scope of the Proclamation:
vested in me by the Constitution and by law, do hereby proclaim, as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ ofhabeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
Section 3. Scope and Authority. The Armed Forces of the Philippines shall undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof, to ensure national integrity and continuous exercise by the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety.The General Order expands the scope of martial law to include lawless violence and is vague as to the other offense which are "in relation thereto, in connection therewith, or in furtherance thereof."
Further, the AFP and other law enforcement agencies are hereby ordered to immediately arrest or cause the arrest of persons and/or groups who have committed, are committing, or attempting to commit the above mentioned acts.
Section 4. Limits. The Martial Law Administrator, the Martial Law Implementor, the Armed Forces of the Philippines, and other law enforcement agencies shall implement this Order within the limits prescribed by the Constitution and existing laws, rules and regulations.
More specifically, 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. During the suspension of the privilege of the writ of habeas corpus, any person arrested or detained by virtue thereof shall be judicially charged within three days; otherwise he shall be released.
Section 5. Protection of Constitutional Rights. In the implementation of this Order, the constitutional rights of the Filipino people shall be respected and protected at all times. The Commission on Human Rights is hereby enjoined to zealously exercise its mandate under the 1987 Constitution, and to aid the Executive in ensuring the continued protection of the constitutional and human rights of all citizens.
The Departments of Social Welfare and Development, Education, and Health, among others, shall exert all efforts to ensure the safety and welfare of all displaced persons and families, especially the children.
Section 6. Role of Other Government Agencies and the Media. All other government agencies are hereby directed to provide full support and cooperation to attain the objectives of this Order:
The role of the media is vital in ensuring the timely dissemination of true and correct information to the public. Media practitioners are therefore requested to exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel, and enable them to effectively discharge their duties and functions under this Order.
Section 7. Guidelines. The Martial Law Administrator may issue further guidelines to implement the provisions ofthis Order, subject to the limits set forth in the Constitution and other relevant laws, rules, and regulations.
2. Mission:The scope of martial law now includes degrading the capabilities of the New People's Army or the Communist Party of the Philippines, illegal drugs, and other lawless violence. The facts which were used as basis to include these aspects of governance were never presented to Congress through the President's report or to this Court.
The AFP enforces Martial Law effective 23 May 2017 to destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures in order to crush the DAESH-inspired rebellion and to restore law and order in the whole of Mindanao within sixty (60) days.
3. Execution:
A. Commanders Intent:The purpose of this operations is to ensure that normalcy is restored, and the security and safety of the people and communities are assured throughout Mindanao within sixty (60) days where civil authorities, government, non-government and private institutions are able to discharge their normal functions and the delivery of basic services are unhampered.In the implementation of Martial Law, AFP troops shall always adhere to the imperatives to the Rule of Law, respect for Human Rights and International Humanitarian Law.
The following are the Key Tasks for this operation:
1) Destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures. 2) Dismantle the NPA, other terrorlinked private armed groups, illegal drug syndicates, peace spoilers and other lawless armed groups. 3) Arrest all target threat personalities and file appropriate cases within the prescribed time frame. 4) Degrade armed capabilities of the NPA to compel them to remain in the peace process. 5) Clear LTG-affected areas. 6) Enforce curfews, establish control checkpoints and validate identification of persons as necessary. 7) Insulate and secure unaffected areas from extremist violence. 8) Implement the Gun Ban and confiscate illegal firearms and disarm individuals not authorized by the government or by law to carry firearms. 9) Secure critical infrastructures and vital installations. 10) Dominate the information environment 11) Protect innocent civilians. 12) Restore government services.
At the end of this operation, the armed threat groups are defeated and rendered incapable of conducting further hostilities; the spread of extremist violence is prevented; their local and international support is severed; the AFP is postured to address other priority areas; and normalcy is restored wherein the government has full exercise of governance and delivery of basic services are unhampered.
B. Concept of Operations:
I will accomplish this by employing two (2) Unified Commands to conduct the decisive operations and other UCs to conduct the shaping operations. One (1) UC enforces Martial Law in Region 9 and ARMM to destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures in order to crush the DAESH inspired rebellion and to restore law and order in the whole of Mindanao within sixty (60) days; and one (1) UC enforces Martial Law in Regions 10, 11, 12 and 13 to dismantle Local Terrorist Groups, private armed groups, illegal drug syndicates, peace spoilers and other lawless elements in order to maintain law and order and prevent spread of extremist violence. All other UCs outside Mindanao conducts insulation and security operations in their respective JAO to prevent spillover of extremist violence.
The CSAFP is the designated Martial Law Implementer with Commanders, WMC and EMC concurrently designated as the Deputy Martial Law Implementers for their respective JAOs. They shall establish direct coordination with the Local Chief Executives and counterpart PNP officials for the implementation of the Martial Law in respective JAOs. This set up maybe cascaded to the AORs of subordinate unit Commanders.
The AFP shall take the lead in the restoration of peace and order and law enforcement operations with the active support of the Philippine National Police.
Significant to this operation is the ability of the AFP forces to immediately contain the outbreak of violence at specific areas in Mindanao.
Critical to this is the early detection and continuous real time monitoring of the enemy's intention, plans and movements, with the public's support and community cooperation.
Decisive to this operation is the destruction of the DAESH-inspired Rebellion.125 (Emphasis supplied)
12. Martial Law. The imposition of the highest-ranking military officer (the President being the Commander-in-Chief) as the military governor or as the head of the government. It is usually imposed temporarily when the government or civilian authorities fail to function effectively or when either there is near-violent civil unrest or in cases of major natural disasters or during conflicts or cases of occupations, where the absence of any other civil government provides for the unstable population.126This definition emphasizes the taking over of civil government albeit temporarily. This is different from the provision in General Order No. 1 which focuses on arrests and illegal detention or in the first part of the same Operational Directive which involves the neutralization of armed elements whether engaged in rebellion, lawless violence, or illegal drugs.
Proclamation No. 216 dated May 23, 2017 Factual Allegations Verification Maute Group attack on the military outpost in Butig, Lanao del Sur in February 2016.168 Omar Maute and his brother Abdullah led a terrorist group in raiding a detachment of the 51st Infantry Battalion in Butig town. According to reports received by the Armed Forces Western Mindanao Command, around 42 rebels were killed. On the other hand, three soldiers died and eleven were injured.169 Mass jailbreak in Marawi City in August 2016.170 50 heavily-armed members of the Maute Group raided the local jail in the southern city of Marawi. The raid led to the escape of 8 comrades of the Maute Group who were arrested a week ago and twenty other detainees. The 8 escaped prisoners were arrested after improvised bombs and pistols were found in their van by soldiers manning an army checkpoint.171 Police Chief Inspector Parson Asadil said that the jailbreak was a rescue operation for the release of the recently arrested members including their leader Hashim Balawag Maute.172 The Maute Group "[took] over a hospital in Marawi City, Lanao del Sur."173 Amai Pakpak Medical Center Chief Dr. Armer Saber (Dr. Saber) stated that the hospital was "not taken over by the Maute Group."174 Dr. Saber said that two Maute armed men went to the hospital to seek treatment for their injured comrade. When the armed men were inside the facility, Senior Inspector Freddie Solar, intelligence unit chief of the Marawi City Police, together with other policemen, came to the hospital to have his wife treated for appendicitis. The policemen were held hostage by the Maute fighters and thereafter, Senior Inspector Solar was shot.175 Saber stressed that the only incident when gunshots were fired was during the shootout where Solar was killed.176 Moreover, the Maute members left the hospital the following day.177
Health Secretary Paulyn Ubial belied the reports stating that "the Maute insurgents abducted and held hostage at least 21 health personnel of the APMC." He declared that "all government hospitals in Mindanao are operational and fully secured by the Armed Forces of the Philippines (AFP)."178
AFP Public Affairs Office Chief Marine Colonel Edgard Arevalo and Philippine National Police Spokesman Senior Superintendent Dionardo Carlos denied the reports that Amai Pakpak Medical Center was taken over by the Maute Group.179 They stated that members of the Maute Group only sought medical assistance for a wounded comrade.180 The Maute Group "established several checkpoints within the City."181 The Maute Group "reportedly blocked several checkpoints in the vicinity."182 The Maute Group "burned down certain government and private facilities and inflicted casualties on the part of the government."183 United Church of Christ in the Philippines, the operator of Dansalan College confirmed that the school was burned on the night of May 23, 2017.184Other schools said to have been burned were only damaged during the clash between the military and the Maute Group.185
Marawi City School Division Assistant Superintendent Ana Alonto said Mambuay Elementary School, Raya Madaya 1 Elementary School, and Raya Madaya 2 Elementary School were damaged by bombs.186
Department of Education Assistant Secretary Tonisito Umali said there were no reports of the Marawi Central Elementary Pilot School burning. Aside from Dansalan College, the City Jail and St. Mary's Church were also burned that day.187 The Maute Group "started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas."188 ISIS flags were raised on top of at least two (2) vehicles roaming Marawi City189 and on some mosques and buildings where members of the Maute , Group positioned themselves.190
President's Report Relative to Proclamation No. 216 Factual Allegations Verification Davao (night-market) bombing (by either the Abu Sayyaf Group or ISIS-backed Maute group)191 According to the Philippine army, four (4) suspects in the Davao City night market bombing were reportedly members of the Dawla Islamiya Fi Cotabato - Maute Group.192 Bombings in Cotabato (by either the Abu Sayyaf Group or ISIS-backed Maute group)193 According to Director of the North Cotabato Provincial Police, they were certain that "the New People's Army was behind the roadside bombing and . . . was not in any way connected to the ongoing strife in Marawi City."194 Bombings in Sultan Kudarat (by either the Abu Sayyaf Group or ISIS-backed Maute grpup)195 Before the incident, text messages circulated containing warnings about an alleged plot by the Bangsamoro Islamic Freedom Fighters (BIFF) to set-off bombs in Tacurong City, Koronadal, General Santos, Cotabato, Midsayap, North Cotabato, and Davao City.196 Bombings in Basilan (by either the Abu Sayyaf Group or ISIS-backed Maute group)197 Investigators are convinced that "Abu Sayyaf bandits are behind the attack."198 May 23, 2017 - Government operation to capture Isnilon Hapilon - "confronted with armed resistance which escalated into open hostility against the government." The Maute Group took control of Marawi City to establish a wilayah in Mindanao.199 Armed Forces of the Philippines spokesperson Brigadier General Restituto Padilla said, "the on-going clash in Marawi City, Lanao Del Sur is aimed at neutralizing Abu Sayyaf leader Isnilon Hapilon, who was spotted along with an estimated 15 followers in the area."200 At 1400H on May 23, 2017 - "Members of Maute Group and [Abu Sayyaf Group] along with their sympathizers, commenced their attack on various facilities."201 Spokesperson of 1st Infantry Division of the Army, Lt. Col. Jo-Ar Herrera, said th gun battle erupted at 2 p.m. in Barangay Basak, Malulut, Marawi.202It was the military who initiated a ,"surgical operation" following the reports on the presence of Maute Group fighters from the residents.203
Armed Forces of the Philippines Spokesman Brigadier General Restituto Padilla stated that it was the AFP and PNP who initiated the operation in Marawi having received reliable information regarding the location of Hapilon and a number of his cohorts.204 At 1600H on May 23, 2017, 50 armed criminals assaulted Marawi City Jail, which was being managed by the Bureau of Jail Management and Penology. The Maute Group "forcibly entered the jail facilities, destroyed its main gate and assaulted on-duty personnel[,] BJMP personnel were disarmed, tied, and/or locked inside the cells."205 Governor Mujiv Hataman of the Autonomous Region in Muslim Mindanao stated that the "Maute gunmen simultaneously stormed the Malabang District Jail and the Marawi City Jail . . . disarmed guards[,] and freed a total of 107 inmates."206 The Group "took cellphones, personnel-issued firearms . . . two [2] prisoner vans and private vehicles."207 Governor Hataman stated that the group "took one [1] government vehicle used in transporting detainees from the jail to the court."208 At 1630H the power supply in Marawi City was "interrupted and sporadic gunfights were heard and felt everywhere[,] [b]y evening, power outage had spread citywide."209 As of 6:30 p.m. on May 25, 2017, the Department of Energy, citing a report of the National Grid Corporation of the Philippines, stated that "a tower along the tie line between Agus 1 and 2 hydropower plant in Lanao del Sur was toppled because of a felled tree."210 The grid disturbance caused the power outage in Marawi City.211 From 1800H to 1900H on May 23, 2017, the Maute Group "ambushed and burned the Marawi Police Station." They also took a patrol car. Meanwhile, a member of the Philippine Drug Enforcement Unit was killed. The Maute Groug facilitated escape of at least 68 inmates.212 Marawi City Mayor Majul Gandamra (Mayor Gandamra) disputed reports that the local police station and city jail were burned. According to Mayor Gandamra: "[h]indi po totoo na na-takeover nila ang police station at ang . . . city jail."213 Mayor Gandamra contacted the chief of police who said that the police station and city jail were not occupied.214
Mayor Gandamra also declared that no government facilities or offices were occupied.215 On the evening of May 23, 2017, "at least (3) bridges in Lanao del Sur, namely Lilod, Bangulo, and Sauiaran, fell under the control of these groups."216 "The Mapandi Bridge that leads to the center of Marawi City remained in the control of the Maute group, and an ISIS flag remains there a week after the terrorists laid siege on the city."217 On the evening of May 23, 2017, the Maute Group burned: (1) Dansalan College Foundation; (2) Cathedral of Maria Auxiliadora; (3) Nun's quarters in the church; and (4) Shia Masjid Moncado Colony. The group took hostages.218 Mayor Gandamra confinned that a fire had taken place in Dansalan College: "[m]erong structure doon na nasunog po, hindi ho lahat [There was a structure burned, but not all]."219
Bishop Edwin Dela Peña said the Maute group torched the Cathedral of Our Lady of Help of Christians: "[k]inuha nila 'yung aming pari, saka 'yung aming secretary, 'yung dalawang working student tapas parokyano namin na nagnovena lang kahapon."220 The Cathedral of Our Lady of Help of Christians is also known as the Cathedral of Maria Auxiliadora.221 "About five (5) faculty members of Dansalan College Foundation [were] reportedly killed by the lawless groups."222 United Church of Christ in the Philippines' Executive Director Rannie Mercado told the Philippine Star that there were no confirmed reports regarding the alleged death of school personnel.223 "Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School" were burned.224 They also "held the hospital's employees hostage and took over the PhilHealth office[.]"230 In a phone interview, the Division Assistant Superintendent of Marawi City Schools Division Ana Alonto "denied a report that a public school was among the buildings burnt by the terrorists." She stated that "it was the barangay outpost that was seen burning in a photo circulating online."225
Furthermore, Department of Education Assistant Secretary Umali said they did not receive any report of damage at the Central Elementary Pilot School.226
According to a source on the ground of the Philippine Star, he saw the Senator Benigno Aquino College Foundation hospital was not overrun by terrorists.231Dr. Saber's statement was corroborated by the PNP Spokesman, Senior Superintendent Dionardo Carlos who said that the terrorists only went there to seek medical assistance for a wounded member. They did not take over the hospital.232 The hospital employees were "only asked to provide medical assistance[.]"233 "Lawless armed groups . . . ransacked the Land [B]ank of the Philippines and commandeered one of its armored vehicles."234 In a statement, the Land Bank of the Philippines (Land Bank) clarified that the Land Bank Marawi City Branch was not ransacked. It merely sustained some damage from the ongoing clash. According to Land Bank, the photo circulating on Facebook is not the Land Bank Marawi Branch but "an image of the closed Land Bank [Mindanao State University Extension Office] that was slightly affected in 2014 by a fire that struck the adjacent building."235
Land Bank also confirmed that an armored vehicle was seized. However, it clarified that the vehicle was owned by a third-party provider and that it was empty when it was taken.236
12. Sometime on or about August in the year 2014, the AFP received intelligence reports that a number of local rebel groups from Mindanao ha[s] pledged their allegiance to ISIS. These groups include the Abu-Sayyaf Group from Basilan, the Ansarul Khilafah Philippines (also known as "The Maguid Group") from Saranggani and Sultan Kudarat, the Maute Group from Lano del Sur, and the Bangsamoro Islamic Freedom Fighters from Maguindanao;Notably, the affidavit fails to emphasize several important key points which put into question the conclusion relating to the strengths of the alleged coalition between the four (4) groups. It puts into question their capability to execute the feared rebellion.
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24. As proof of this unification, the ISIS-linked rebel groups had consolidated in Basilan to pledge allegiance to ISIS sometime on June 22, 2016. On the first week of January 2017, a meeting among these rebel groups was supposed to take place in Butig, Lanao del Sur for the purpose of declaring their unified pledge of allegiance to the ISIS and re-naming themselves as the Da'wahtul Islamiyah Waliyatul Mashriq (DIWM). This was, however, preempted by the death of Mohammad Jaafar Maguid (also known as Tokboy), as then leader of the Maguid Group, coupled with the conduct of series of military operations in the area.256
1. Ansar Dawiah Fi FilibbinHowever, respondents failed to show any evidence that would establish links and relationships between and among these groups to support the conclusion that these groups are indeed "ISIS cell groups" and that these groups are coordinating attacks with the ASG Basilan, AKP, Maute Group, and the BIFF. For instance, the Sulu faction of the Abu-Sayyaf Group does not share the same ideology as the Basilan faction.260 This listing of twenty groups are not present in any of the presentations or documents presented to the Court during the oral arguments in these cases.
2. Rajah Solaiman Islamic Movement
3. Al Harakatul Islamiyah Battalion
4. Jama'at Ansar Khilafa
5. Ansharul Khilafah Philippines Battalion
6. Bangsamoro Justice Movement
7. Khilafah Islamiya Mindanao
8. Abu Sayyaf Group (Sulu faction)
9. Syuful Khilafa Fi Luzon
10. Ma'rakah Al-Ansar Battalion
11. Dawla Islamiyyah Cotabato
12. Dawlat Al Islamiyah Waliyatul Masrik
13. Ansar Al-Shariyah Battalion
14. Jamaah al-Tawid wal Jihad Philippines
15. Abu Duhanah Battalion
16. Abu Khubayn Battalion
17. Jundallah Battalion
18. Abu Sadr Battalion
19. Jamaah Al Muhajirin wal Anshor
20. Balik-Islam Group259
29. At 2:18 pm, the government troops from the 51st Infantry Battalion were faced with heavy assault from the rebel groups in the vicinity of the Amai Pakpak Medical Center. Four (4) government troopers were wounded in the encounter.Further, the act of flying the ISIS flag was interpreted, m Proclamation No. 216, as an overt act of attempting to remove part of Mindanao from the allegiance to the Philippine Government:
30. The ISIS-linked local rebel groups launched an overwhelming and unexpectedly strong offensive against government troops. Multitudes, about five hundred (500) armed men, rampaged along the main streets of Marawi and swiftly occupied strategic positions throughout the city. Snipers positioned themselves atop buildings and began shooting at government troops. The ISIS-linked local rebel groups were also equipped with rocket-propelled grenades ("RPG") and seemingly limitless ammunition for high-powered assault rifles.
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34. In their rampage, the rebel groups brandished the black ISIS flag and hoisted it in the locations that they occupied. An ISIS flag was recovered by the 51st Infrantry Battalion in the vicinity of the Amai Pakpak Medical Center, where the troops had an armed encounter with the rebels. Another ISIS flag was captured by the 103rd Brigade in Barangay Basak, which was under the control of the rebel groups.278
WHEREAS, today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion[.]To assess the sufficiency of the factual basis for finding that rebellion exists in Mindanao, it is essential to contextualize the acts supposedly suggestive of rebellion, in relation to the culture of the people purported to have rebelled.
Virtually every major decision and law promulgated by the Islamic State adheres to what it calls, in its press and pronouncements, and on its billboards, license plates, stationery, and coins, "the Prophetic methodology," which means following the prophecy and example of Muhammad, in punctilious detail.279ISIS have been described as following Salafi-jihadis. For Salafists, the Quran is a direct and literal instruction from God:
Salafis encourage a strict constructionist reading of the Quranic verses and prophetic traditions and downplay the role of human interpretive capacity and extratextual rationality . . .Thus, ISIS takes the position that many "Muslims" are marked for death as apostates, having done acts that remove them from Islam:
Contemporary Salafism makes claims concerning the permissibility and necessity of takfir (declaring a Muslim to be outside the creed, the equivalent of excommunication in Catholicism). Salafis believe Muslims can be judged to have committed major transgressions that put them outside the Islamic faith . . .
. . . .
The issue of takfir has become relevant because many jihadi Salafis today argue that existing Muslim regimes rule according to secular laws. Thus, because they violate God's sovereignty, they no longer can be considered Muslim. Consequently, it is permissible to reject them and rebel against them until they repent and apply Islamic law or are removed from power. Many jihadi Salafis declare democratic regimes to be un Islamic because sovereignty is vested in human beings and popular will, not God and his divine will . . . Takfir also is invoked against any person working for the "apostate" regimes or the occupation, including police and security services, translators, manual workers, and anyone giving aid or comfort to the occupiers.280
These include, in certain cases, selling alcohol or drugs, wearing Western clothes or shaving one's beard, voting in an election - even for a Muslim candidate and being lax about calling other people apostates. Being a Shiite, as most Iraqi Arabs are, meets the standard as well, because the Islamic State regards Shiism as innovation, and to innovate on the Koran is to deny its initial perfection . . . This means roughly 200 million Shia are marked for death. So too are the heads of state of every Muslim country, who have elevated man-made law above Sharia by running for office or enforcing laws not made by God.ISIS is extremely and fundamentally ideological and Muslims whose practices are inconsistent with ISIS' are apostates.
Following takfiri doctrine, the Islamic State is committed to purifying the world by killing vast numbers of people . . . Muslim "apostates" are the most common victims. Exempted from automatic execution, it appears, are Christians who do not resist their new government.
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Leaders of the Islamic State have taken emulation of Muhammad as strict duty, and have revived traditions that have been dormant for hundreds of years. "What's striking about them is not just the literalism, but also the seriousness with which they read these texts," [Princeton scholar Bernard Haykel, the leading expert on ISIS theology] said.281
[B]ound together by ethnicity; family ties; loyalty to the leadership; and a strong desire for revenge, given the number of their relatives killed by police and military. Many children of 'martyrs', referred to as ajangajang (children) or anak iluh (orphans), are reported to be among the most militant.283Anyone can pledge allegiance to ISIS. But this pledge does not imply any reciprocity or support from ISIS itself. Thus there are ISIS inspired groups wanting to affiliate but their oaths of affiliation may only be just that. Logistical support from ISIS now bearing the brunt of a multinational assault in Iraq and Syria may not be that forthcoming.
In fact, much of what the group does looks nonsensical except in light of a sincere, carefully considered commitment to returning civilization to a seventh-century legal environment, and ultimately to bringing about the apocalypse.ISIS ideology, as salafi-jihadis, is fundamentally nihilistic and apocalyptic, and if properly lived by its alleged adherents, it would naturally alienate the Muslim population in many areas in Mindanao.
. . . .
[T]he Islamic State's immediate founding fathers . . . saw signs of the end times everywhere. They were anticipating, within a year, the arrival of . . . a messianic figure destined to lead the Muslims to victory before the end of the world . . .
. . . .
Now that it has taken Dabiq, the Islamic State awaits the arrival of an enemy army there, whose defeat will initiate the countdown to the apocalypse. Western media frequently miss references to Dabiq in the Islamic State's videos, and focus instead on lurid scenes of beheading . . .284
15. On December 31, 2016, Hapilon and about thirty (30) of his followers, including eight (8) foreign terrorists, were surveilled in Lanao del Sur. According to military intelligence, Hapilon performed a symbolic hijra or pilgrimage to unite with the ISIS-linked groups in mainland Mindanao. This was geared towards realizing the five (5)-step process of establishing a wilayah, which are: first, the pledging of allegiance to the Islamic State; second, the unification of all terrorist groups who have given bay'ah or their pledge of allegiance; third, the holding of consultations to nominate a wali or a governor of a province; fourth, the achievement of consolidation for the caliphate through the conduct of widespread atrocities and uprisings all across Mindanao; and finally, the presentation of all of these to the ISIS leadership for approval or recognition.287The OSG Memorandum, in turn, cites Hijra Before Isis,288 which discusses the history of hijrah in Islam:
In order to disseminate their views to a wider constituency the Islamic State began in 2014 publishing an English-language magazine called Dabiq. The magazine is produced in glossy format with a colorful layout and careful design. Judging from the flawless English of every article, the authors (all of whom are anonymous) are native English speakers. Dabiq's third issue, dedicated to hijra, calls on Muslims to migrate to Syria and participate in the creation of the Islamic State . . .Later, the OSG mentions hijrah again, in support of its contention that the ISIS-linked rebel groups is attempting to "carv[e] out their own territory called a wilayah":290
. . . .
Although the third issue of Dabiq opens and closes with attacks on US foreign policies, the core of this issue is its seven-part case for why Muslim believers must perform hijra. Mindful of its English readership, the magazine contrasts hijra, a practice that prioritizes piety over pleasure, to the consumerist orientation of American society. One chapter, entitled "Modern Day Slavery" notes that the "modern day slavery of employment, work hours, wages . . . leaves the Muslim in a constant feeling of subjugation to a kafir [infidel] master." In order to overcome the servitude that is part and parcel of everyday life in industrialized societies, Muslims must migrate to the new Caliphate, the authors argue, where they can live and work under Muslim masters. In this new Caliphate, "there is no life without jihad. And there is no jihad without hijrah." As if to reinforce that hijra never ends, the third issue concludes with a citation from the hadith, the storehouse of sacred sayings that is a major source of authority in Islamic law: "there will be hijrah after hijrah."
Just as, according to the theologians of ISIS, there will be hijra after hijra, so too was there hijra long before its violent reconfiguration by ISIS. Hijra marks the beginning of Islam as a religion, when Muhammad and his followers migrated from Mecca to Medina in 622 in order to preserve their community. The migrants knew that, so long as they continued to reside in Mecca, they would [be] hated by local nonMuslims, and have reason to fear for their lives. Muhammad and his followers were invited to resettle in Medina at just the right moment.
In addition to signifying the general obligation to migrate, hijra refers to the Prophet's departure for Medina. Accordingly, it stands for the beginning of the Islamic calendar. In keeping with this beginning, Muslims are encouraged to migrate to lands under Muslim rule when migration will strengthen the community of faith. The Prophet's hijra is a case in point. Against his will, Muhammad migrated in order for Islam to have a stable base and for Muslims to have freedom of worship. With his migration, hijra became relevant in perpetuity to all believers.
After the migration to Medina, Islam acquired a political foundation. While Islam became a religion of the community as well as of the individual believer, hijra became a story through which Muslims remembered their beginnings. Hijra acquired new life in early modernity, with the systematic expulsions of Muslims, first from Islamic Spain in 1492 (the same year that Columbus discovered America), and later from colonial empires that wanted Muslim lands without Muslims living there. These later expulsions-from Spain and Russia especially-changed the meaning of hijra in Muslim cultural memory. The concept became inflected not just by the pressure to migrate, as during Muhammad's lifetime, but by an ultimatum from the state: leave or you will be slaughtered.
Although the Prophet's hijra is not narrated in the Quran, this sacred book is structured around this event in that it is divided into revelations Muhammad received in Medina and those he received while residing in Mecca. Wherever and whenever in Islamic history there are stories of despair and sacrifice, as well as of courage and of victory, hijra casts its shadow. Hijra is at once the penultimate origin story and a climactic denouement to any traumatic experience.
Hijra is an answer to a universal predicament faced by all believers-how to be pious in an impious world-and an attempt to move beyond the constraints of everyday life. Hijra reconciles the dictates of faith with the dictates of the state, and the impulses of the heart with external constraints. More than a physical action, hijra responds to the inability of our dreams to approximate our realities with the injunction to create a better world in lands under Muslim rule. At its most meaningful, hijra resolves the contradiction between the worlds we desire and the lives we live.
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The Islamic State's merger of violence with post-national consciousness is unique, and hijra is one of the most basic strategies underlying its vision. Hijra as understood by the Islamic state marks a break in the fabric of time. It has the blessings of antiquity, but pursues a more cosmopolitan vision of human belonging than pre[-]modem precedents. It opposes the crass materialism of American culture, as well as the cowardly subservience of US client states in the Middle East. Hijra is compelling, persuasive, and uniquely able to solicit a profound sense of emotional belonging.
While its critique of American materialism goes some distance towards explaining the appeal of the Islamic State's rhetoric to prospective migrants, the conception of hijra that animates publications like Dabiq relies on a selective reordering [of] the historical record. The Islamic State's rhetoric, for example, suppresses the fact that, for most of Islamic history, Muslims have peacefully co-habited with Jews, Christians, Hindus, and Zoroastrians, and followers of many other non-Muslim religious creeds. Such co-habitation was enshrined into Islamic law, not always on equitable terms, but as a guiding assumption for over a thousand years. It has always been a presumption of normative Islamic law that Muslims must live alongside their non-Muslim counterparts. Only in modernity was the dream of an Islamic State populated exclusively by Muslims, and with all non-Muslims living under the threat of extermination, envisioned.
Meanwhile, hijra today is used in a very different sense: to signify migration for the purpose of jihad. This was not the normative meaning of hijra before modernity. ISIS' crude and contrived medievalism shows how mythical re[-]fashionings of the past can justify many forms of oppression in the present. The contemporary usages of hijra demonstrate how the past is mediated to the present. These usages reveal a rift between the past understood as an object of knowledge and a past which exists for the sake of the present.
In the sense evoked by millions of Muslims over the long course of Islamic history, hijra is the perpetual movement between memory and forgetting. Hijra is the turn to narrative to keep the past-and ourselves-alive in the present. Hijra is what we do when, like Palestinians and Chechens today, and like the Muslims and Jews of Islamic Spain, we have been dispossessed. Hijra is how we create homes for ourselves amidst the perpetual homelessness of exile and displacement that is part of the modern condition.
Hijra is useful to the Islamic State insofar as it encourages believers to cut their ties with the past. However, hijra has for most of its history meant much more than the rejection of the past. As a form of storytelling, and an ethical mode of remembering, hijra holds the past accountable to the present. Hijra indexes distances between past and present, not their convergence. For all these reasons, hijra far exceeds and ultimately confounds ISIS' remit. Hijra's appeal to memory, and its grounding in prior forms of life, are nuances that the ideologues of ISIS, in their uncritical appeals to the force of the new, would very much like us to forget.289
206. On December 31, 2016, Hapilon and about thirty (30) of his followers from Basilan, including eight (8) foreign terrorists, were spotted in Lanao del Sur. Hapilon and his cohorts performed a symbolic hijra, which is the holy voyage of Prophet Muhammad and his followers from Mecca to Medina. The purpose of this is to further the unification goals for all rebel groups in Mindanao.291Here, however, the OSG cites an intelligence report as basis for the assertion that the hijrah was intended to "further the unification goals for all rebel groups in Mindanao." But, the intelligence report says only:
Following the symbolic hijra of Isnilon HAPILON, the DAESH endorsed Amir for Southeast Asia, and his followers from Basilan to Butig, Lanao del Sur, he was joined by members of local terrorist groups such as the Maute and Maguid groups. These were done in a bid to unite DAESHinspired groups in compliance with the five-step process of establishing a wilayat in Mindanao.292The source relied upon by the OSG does not explain what a "symbolic hijrah" is and how it is a step in establishing an ISIS-recognized Islamic province within the Philippines. Rather, the OSG source293 states that, in relation to hijrah, ISIS "calls on Muslims to migrate to Syria," which is the opposite of establishing an ISIS-recognized Islamic Province in the Philippines. Indeed, it appears that ISIS expressly focuses on bringing fighters to Syria:
[M]ost jihadist groups' main concerns lie closer to home. That's especially true of the Islamic State, precisely because of its ideology. It sees enemies everywhere around it, and while its leadership wishes ill on the United States, the application of Sharia in the caliphate and the expansion to contiguous lands are paramount. Baghdadi has said as much directly: in November he told his Saudi agents to "deal with the rafida [Shia Muslims] first . . . then al-Sulul [Sunni Muslim supporters of the Saudi monarch] . . . before the crusaders and their bases."Using Arabic words like hijra without any attempt to explain it and naming it an overt act of establishing an Islamic province within the Philippines creates unnecessary ambiguity when what is needed is clarity. It is an act of othering and discourages even the attempt to understand. Such tactics make it all the more necessary for this Court to give proper attention to the culture being invoked to ensure that its interpretation of the facts presented is properly arrived at.
The foreign fighters (and their wives and children) have been travelling to the caliphate on one-way tickets: they want to live under true Sharia, and many want martyrdom. Doctrine, recall, requires believers to reside in the caliphate if it is at all possible for them to do so. One of the Islamic State's less bloody videos shows a group of jihadists burning their French, British, and Australian passports. This would be an eccentric act for someone intending to return to blow himself up in line at the Louvre or to hold another chocolate shop hostage in Sydney.
A few "lone wolf" supporters of the Islamic State have attacked Western targets, and more attacks will come. But most of the attackers have been frustrated amateurs, unable to immigrate to the caliphate because of confiscated passports or other problems. Even if the Islamic State cheers these attacks - and it does in its propaganda - it hasn't yet planned and financed one.294
Intelligence in the possession of the PNP prior to the launch of Oplan Exodus indicated that there were more than 1,000 hostile troops at or near the target area where Marwan and Usman were believed to be hiding. Yet the PNP-SAF deployed only 392 personnel for the entire operation where almost a quarter of them are positioned to guard the MSR that was so far away from the actual theatre of action.Even assuming that the facts alleged to have occurred on May 23, 2017 are true, these facts may have been linked together, ignoring the cultural context, to create a false narrative by the storyteller.
In addition, the PNP-SAF mission planners were informed of the possibility of a pintakasi, a practice common among Muslim armed groups where groups normally opposed to each other would come together and fight side by side against a common enemy or an intruding force, as described by ARMM Governor Mujiv Hataman ("Governor Hataman") in this testimony before the Committees. Governor Hataman described the bloody encounter as a case of Pintakasi, a jargon for collective work or bayanihan.295
Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.However, the United Nations member states still have not come to an agreement on a single definition of terrorism. The majority of definitions of terrorism have been written by government agencies, making them inherently biased as the government is deliberately excluded from the definition of terrorism.300
[t]he crime of rebellion or insurrection is committed by rising publicly and taking arms against the government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.312The elements of rebellion can be summarized as follows:
[F]irst, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) 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 or prerogatives.313In contrast, the crime of terrorism has 3 elements, (1) the predicate crime committed, (2) the effect of the perpetration of the crime (to sow and create widespread and extraordinary fear), and (3) the purpose of which is to coerce the government to give in to an unlawful demand.
Section 3. Terrorism Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:In its broader sense, rebellion falls under terrorism because of its resdrt to violence, which in turn creates widespread fear and panic, to attain its goals of overthrowing the government. However, not all acts of terrorism can qualify as rebellion. Certainly, the acts of terrorism committed by the Maute Group and their allies, after the attempted service of warrants of arrests against their leaders and the disruption of their plans while trying to escape, is not rebellion in the context of Article 134 of the Revised Penal Code. It is certainly not the kind of rebellion that warrants martial law.Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. (Emphasis supplied)
- Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
- Article 134 (Rebellion or Insurrection);
- Article 134-a (Coup d' Etat), including acts committed by private persons;
- Article 248 (Murder);
- Article 267 (Kidnapping and Serious Illegal Detention);
- Article 324 (Crimes Involving Destruction), or under
- Presidential Decree No. 1613 (The Law on Arson);
- Republic Act No. 6969 (Toxic Substances and Hazardous Nuclear Waste Control Act of 1990);
- Republic Act No. 6235 (Anti-Hijacking Law);
- Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and
- Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions, or Explosives)
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance to the Government the territory of the Philippine Islands or any part thereof, then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.314Enrile v. Amin315 held that the crime of rebellion consists of many acts and described it as a vast movement of men and a complex net of intrigues and plots, including other acts committed in furtherance of the rebellion even when the crimes in themselves are deemed absorbed in the crime. Furthermore, Enrile posits that the theory of absorption in rebellion cases must not be confined to common crimes but also to offenses under special laws perpetrated in furtherance of the political offense.316
Thus, the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in comparison with the laws enforce during the Spanish regime. Such policy has not suffered the slightest alteration. Although the Government has, for the past five or six years, adopted a more vigorous course of action in the apprehension of violators of said law and in their prosecution the established policy of the State, as regards the punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of such policy. This falls within the province of the policymaking branch of the government[,] the Congress of the Philippines.320Despite the law's benign attitude towards the local terrorist groups, by characterizing them as rebels, we risk giving the impression that what are mere sporadic or isolated acts of violence during peacetime, which are considered law enforcement problems, have been transformed to a non international armed conflict covered under International Humanitarian Law.321
Endnotes:
1 REV. PEN. CODE, art. 134.
2 OSG Memorandum, Annex 4 of Annex 2, Rules of Engagement (ROE) for Operational Directive 02-17, p. 12.
3 OSG Memorandum, pp. 28-29.
4 CONST., art. VIII, sec. 5 provides:
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
5 OSG Memorandum, p. 30.
6Angara v. Electoral Commission, 63 Phil 139, 156-157 (1936) [Per J. Laurel, En Banc].
7 63 Phil. 139 (1936) [Per J. Laurel, En Banc].
8 Id. at 158.
9 See J. Brion's concurring opinion in Villanueva v. Judicial and Bar Council, G.R. No. 211833 April 7, 2015, 755 SCRA 182, 217-218 [Per J. Reyes, En Banc].
10Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374,438 (2010) [Per J. Mendoza, En Banc], citing Senate of the Philippines v. Ermita, 522 Phil. 1, 27 (2006) [Per J. Carpio-Morales, En Banc] and Francisco v. House of Representatives, 460 Phil. 830, 842 (2003) [Per J. Carpio-Morales, En Banc].
11Belgica v. Ochoa, 721 Phil. 416, 526-527 (2013) [Per J. Perlas-Bernabe, En Banc]; Spouses Imbong v. Ochoa, 732 Phil. 1, 120-121 (2014) [Per J. Mendoza, En Banc]; Araullo v. Aquino, 737 Phil. 457, 524-525 (2014) [Per J. Bersamin, En Banc].
12Estrada v. Desierto, 406 Phil 1, 42-43 (2001) [Per J. Puno, En Banc].
13 See Justice Marvic M.V.F. Leonen's concurring opinion in Belgica v. Ochoa, 721 Phil 416, 670-671 (2013) [Per J. Perlas-Bernabe, En Banc], citing I RECORDS OF THE CONSTITUTIONAL COMMISSION (1986) No. 27.
"[T]he role of the judiciary during the deposed regime was marred considerably by the circumstance that In a number of cases against the government, which then had no legal defense at all, the Solicitor General set up the defense of political questions and got away with it."
14 CONST., art. Vll, sec. 18.
15Pascual v. Burgos, G.R. No. 171722, January 11, 2016, 778 SCRA 189, 204 [Per J. Leonen, Second Division].
16 RULES OF COURT. Rule 3, sec. 2.
17 684 Phil. 526 (2012) [Per J. Abad, En Banc].
18 Id. at 586, citing BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS 474 (1995 ed.).
19Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 329-330 (2015) [Per J. Leonen, En Banc].
20Roque, Jr. et al. v. Commission on Elections, 615 Phil. 149, 201 (2009) [Per J. Velasco, En Banc].
21Francisco v. The House of Representatives, 460 Phil. 830, 883 (2003) [Per J. Carpio-Morales, En Banc].
22 See J. Leonen's Concurring Opinion in Belgica v. Ochoa, 721 Phil. 416, 670-671 (2013) [Per J. PerlasBernabe, En Banc], citing I RECORDS OF THE CONSTITUTIONAL COMMISSION (1986), No. 27.
23Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R. Nos. 207132 & 207205, December 6, 2016, [Per J. Brion, En Banc].
24 Id. at 12.
25Ocampo v. Enriquez, G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120 & 226294, November 8, 2016
15 [Per J. Peralta, En Banc], citing Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013) [Per J. Leonardo-De Castro, En Banc].
26 5 Phil. 87 (1905) [Per J. Johnson, En Banc].
27 Id.
28 Id. at 96.
29 Id. at 107.
30 Id. at 115.
31 91 Phil. 882 (1952) [Per J. Bengzon].
32 Id. at 887.
33 91 Phil. 882 (1952) [Per J. Bengzon].
34In the Matter of the Petition for Habeas Corpus of Lansang et al. v. Garcia, 149 Phil. 547, 585-586 (1971) [Per C.J. Concepcion, En Banc].
35 149 Phil. 547 (1971) [Per C.J. Concepcion, En Banc].
36 Id. at 585-586.
37 Id. at 586.
38 Id. at 591.
39 Id. at 598-599.
40In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino, Jr. et al. v Enrile, 158-A Phil. 1, 45 (1974) [Per C.J. Makalintal, En Banc).
41 Id.
42 Id. at 49.
43 Id. at 49-50.
44 Id.
45 Id. at 47-48.
46 206 Phil. 392 (1983) [Per J. De Castro, En Banc]. (Note: This case is more commonly referred to as Garcia-Padilla v. Enrile.)
47 Id. at 431-432.
48 Id. at 453-454.
49 Id. at 454.
50 206 Phil. 466 (1983) [Per J. Concepcion, Jr., En Banc].
51 Id. at 496.
52 Id.
53David v. Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016 [Per J. Leonen, En Banc].
54 Id.
55 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 666-667 (2000) [Per J. Kapunan, En Banc].
56 Article XVI, Section 6 and Article X, Section 21 of the Constitution.
57 Rep. Act No. 4864, sec. 7 or the The Police Act of 1966.
58 G .R. Nos. 212426 & 212444, January 12, 2016, 779 SCRA 241 [Per C.J. Sereno, En Banc].
59 Id. at 301-302.
60 530 Phil. 399 (2006) [Per J. Tinga, En Banc].
61 Id. at 420-422.
62 690 Phil. 70 (2012) [Per J. Sereno, En Banc].
63 Id. at 90-93.
64 755 Phil. 296 (2015) [Per J. Leonen, Second Division].
65 Id. at 311-316.
66 J.V. Capua The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right, 36 CAMBRIDGE L.J. 152 (1977).
67 327 U.S. 304 (1946) [Per J. Stone] citing Luther v. Borden, 48 U.S. (7 How.) 1 (1849) [Per J. Taney].
68 Id.
69Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) [Per J. Davis]
70 Id.
71Evolution of the Revolution, PRESIDENTIAL MUSEUM AND LIBRARY http://malacanang.gov.ph/7824-evolution-of-the-revolution/ (last accessed on June 22, 2017).
72 Am beth Ocampo, Martial Law in 1896. PHILIPPINE DAILY INQUIRER, December 18, 2009, https://www.pressreader.com/philippines/philippine-daily-inquirer/20091218/283180079571432 (last accessed June 22, 2017).
73 Id.
74 Proc. No. 29 (1944).
75Dr. Jose P. Laurel as President of the Second Philippine Republic, PRESIDENTIAL MUSEUM AND LIBRARY http://malacanang.gov.ph/5237-dr-jose-p-laurel-as-president-of-the-second-philippine-republic/#_edn7 (last accessed July 3, 2017).
76 Proc. No. 30 (1944).
77 Proc. No. 1081 (1972).
78 Gen. Order No. 1 (1972).
79 Gen. Order No. 2 (1972).
80 Gen. Order No. 3 (1972).
81 Gen. Order No. 4 (1972).
82 Gen. Order No. 5 (1972).
83 Gen. Order No. 6 (1972).
84 Gen. Order No. 5 (1972).
85 People of the Philippines v.Piedra, 403 Phil. 31 (2001) [Per J. Kapunan, First Division].
86 646 Phil. 452 (2010) [Per J. Carpio-Morales, En Banc].
87 Id. at 488.
88 403 Phil. 31 (2001) [Per J. Kapunan, First Division].
89 Id. at 47.
90 Id. at 47-48.
91 421 Phil290 (2001) [Per J. Belosillo, En Banc].
92 Id. at 352.
93 ld.at351-352.
94 Id. at 352.
95 646 Phil. 452 (2010) [Per J. Carpio-Morales, En Banc].
96 Id. at 492.
97 727 Phil. 28(2014) [Per J. Abad, En Banc].
98 Id. at 327.
99Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719 [Per Gutierrez, Jr., En Banc].
100 G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per Gutierrez, Jr., En Banc].
101 Id. at 720-721.
102 646 Phil. 452 (2010) [Per J. Carpio-Morales, En Banc].
103 Id. at 490.
104 Id.
105 727 Phil. 28 (2014) [Per J. Abad, En Banc].
106 Id. at 308-328.
107 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc].
108 Id. at 354.
109 646 Phil. 452 (2010) [Per J. Carpio-Morales, En Banc].
110 Id. at 488.
111 Id. at 490-491.
112Southern Hemisphere Engagement Network, Inc., v. Anti-Terrorism Council, 646 Phil. 452, 492-493 (2010) [Per J. Carpio-Morales, En Banc].
113 Id.
114 OSG Memorandum, Annex 3, pp. 3-6 and 9.
115 646 Phil. 452 (2010) [Per J. Carpio-Morales, En Banc].
116 Id. at 492.
117 727 Phil. 28 (2014) [Per J. Abad, En Banc].
118 Id. at 121-122.
119 545 Phil. 441 (2008) [Per J. Puno, En Banc].
120 Id. at 491-492.
121 217 Phil. 302 (1984) [Per J. Plana, En Banc].
122 Id. at 312.
123 217 Phil. 302 (1984) [Per J. Plana, En Banc].
124 Gen. Order No. 1 (2017), sec. 6.
125 OSG Memorandum, Annex 3 of Annex 2, Operations Directive 02-2017.
126 OSG Memorandum, Annex 4 of Annex 2, Rules of Engagement (ROE) for Operational Directive 02-17, p. 12.
127Joson v. Mendoza, 505 Phil. 208, 219 (2005) [Per J. Chico-Nazario, Second Division].
128 OSG Memorandum, pp. 51-55.
129 CONST., art. VII, sec. 18.
130 CONST., art. VII, sec. 18.
131 CONST., art. XI, sec. 2 provides:
Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution[.]
132See Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 https://www.dni.gov/files/documents/ICA_2017_01.pdf 1 (last visited June 28, 2017).
133 Id.
134 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER, http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf 4-5 (visited June 29, 2017).
135 Id. at 4.
136Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, https://www.fbi.gov/about/leadershipand-structure/intelligence-branch (visited June 29, 2017).
137 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf 4 (last visited June 29, 2017).
138Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, https://www.fbi.gov/about/leadershipand-structure/intelligence-branch (last visited June 29, 2017).
139 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf 4 (last visited June 29, 2017).
140 Id.
141Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, https://www.fbi.gov/about/leadershipand-structure/intelligence-branch (visited June 29, 2017).
142 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf 4 (visited June 29, 2017).
143 Id. at 5.
144 Id. at 5.
145Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, https://www.fbi.gov/about/leadershipand-structure/intelligence-branch (visited June 29, 2017).
146 Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 https://www.dni.gov/files/documents/ICA_2017_01.pdf 1 (last visited June 28, 2017).
147 Chester L. Cooper, The CIA and Decision-Making, 50 FOREIGN AFF. 223, 224 (1972).
148 Id.
149 Id.
150 Id.
151 Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 https://www.dni.gov/files/documents/ICA_2017_01.pdf 1 (last visited June 28, 2017).
152 Id.
153 Id. at 1.
154 Id. at 13.
155 Id.
156 Id.
157 Id. at 1.
158 Id.
159 Id.
160 Carmela Fonbuena, Zamboanga siege: Tales from the combat zone, RAPPLER, September 13, 2014 http://www.rappler.com/newsbreak/68885-zamboanga-siege-light-reaction-battalion (last visited June 27, 2017).
161 Id.
162 Id.
163 Ina Reformina, DOJ indicts 88 over Mamasapano carnage, ABS-CBN NEWS, August 15, 2016 http;//news.abs-cbn.com/news/08115/16/doj-indicts-88-over-mamasapano-carnage (last visited June 27, 2017).
164 Cynthia D. Balana, Mamasapano clash: What happened according to the military, INQUIRER.NET, February 7, 2015 http://newsinfo.inquirer.net/671126/mamasapano-clash-what-happened-accordingto-the-military (last visited July 3, 2017).
165 Frances Mangosing, Its official: MILF killed Basit Usman - AFP, PHILIPPINE DAILY INQUIRER, May 6, 2015 http://newsinfo.inquirer.net/689608/its-official-milf-killed-basit-usman-afp (last visited July 3, 2017).
166 Cynthia D. Balana, Mamasapano clash: What happened according to the military, INQUIRER.NET, February 7, 2015 http;//newsinfo.inquirer.net/671126/mamasapano-clash-what-happened-accordingto-the-military (last visited July 3, 2017).
167 Ina Reformina, DOJ indicts 88 over Mamasapano carnage, ABS CBN NEWS, August 15, 2016 http://news.abs-cbn.com/news/08/15/16/doj-indicts-88-over-mamasapano-carnage (last visited June 27, 2017).
168 Proc. No. 216 (2017).
169 Alexis Romero, 3 soldiers killed, 11 hurt in Lanao del Sur clash, THE PHILIPPINE STAR, February 26, 2016 http://www.philstar.com/nation/2016/02/26/1557058/3-soldiers-killed-11-hurt-lanao-del-sur-clash (last visited June 28, 2017)
170 Proc. No. 216 (2017).
171 Agence France-Presse, Muslim extremists stage mass jailbreak in Marawi City, INQUIRER.NET, August 28, 2016 http://newsinfo.inquirer.net/810455/muslim-extremists-stage-mass-jailbreak-inmarawi-city (last accessed June 28, 2017).
172 Bobby Lagsa, Terror leader escapes in Lanao del Sur jailbreak, RAPPLER, August 28, 2016 http://www.rappler.com/nation/144405-prionsers-escape-jail-raid-lanao-del-sur (last accessed June 28, 2017).
173 Proc. No. 216 (2017).
174 Jigger J. Jerusalem, Hospital in Marawi not taken over by Maute - medical center chief, INQUIRER.NET, May 28, 2017 http://newsinfo.inquirer.net/900299/hospital-in-marawi-not-taken-over-by-mautemedical-center-chief (last accessed June 28, 2017).
175 Id.
176 Gerry Lee Gorit, Marawi City hospital not overrun - official, THE PHILIPPINE STAR, May 29, 2017 http://www.philstar.com/headlines/2017/05/29/1704661/marawi-city-hospital-not-overrun-official (last accessed June 28, 2017).
177 Jigger Jerusalem, Hospital in Marawi not wken over by Maute - medical center chief, INQUIRER.NET, May 28, 2017 http://newsinfo.inquirer.net/900299/hospital-in-marawi-not-taken-over-by-mautemedical-center-chief (last accessed June 28, 2017).
178 Gerry Lee Gorit, Marawi City hospital not overrun - official, THE PHILIPPINE STAR, May 29, 2017 http://www.philstar.com/headlines/2017/05/29/1704661/marawi-city-hospital-not-overrun-official (last accessed June 28, 2017).
179 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 http://www.philstar.com:8080/headlines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martial-law-report (last accessed June 28, 2017).
180 Id.
181 Proc. No. 216 (2017).
182 Ver Marcelo, Gov't forces, Maute group clash in Marawi City, CNN PHILIPPINES, May 23, 2017, http://cnnphilippines.com/news/2017/05/23/marawi-city-clash.html (last accessed June 28, 2017).
183 Proc. No. 216 (2017).
184 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017, http://www.philstar.com:8080/headlines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martial-law-report (last accessed June 28, 2017).
185 Id.
186 Id.
1873 fires break out in Marawi as clashes rage, RAPPLER, May 23, 2017 http://www.rappler.com/nation/170738-fires-marawi-city-maute-attack (last accessed June 28, 2017).
188 Proc. No. 216 (2017).
189Maute Group waves ISIS black flag on Marawi streets, RAPPLER, May 23, 2017, http://www.rappler.com/nation/170729-marawi-city-black-flag-maute (last accessed June 28, 2017).
190 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE STAR, May 24, 2017 http://www.philstar.com/headlines/2017/05/24/1703188/maute-group-frees-107-inmatesamid-clashes-marawi-city (last accessed June 28, 2017).
191 President's Report to Congress, p. 3.
192 CNN Philippines Staff, Four more suspects in Davao City bombing arrested, CNN PHILIPPINES, October 29, 2016 http://cnnphilippines.com/regional/2016/10/29/Davao-City-bombing-suspectsarrested.html (last accessed on June 27, 2017).
193 President's Report to Congress, p. 3.
194 John Unson, Cop hurt in North Cotabato roadside bombing, THE PHILIPPINE STAR, May 26, 2017 http://www.philstar.com/nation/2017/05/26/1703828/cop-hurt-north-cotabato-roadside-bombing (last accessed June 27, 2017).
195 President's Report to Congress, p. 3.
196 Edwin Fernandez, 8 hurt in Tacurong twin explosions, INQUIRER.NET, April 17, 2017 http://newsinfo.inquirer.net/889856/8-hurt-in-tacurong-twin-explosions (last accessed June 27, 2017)
197 President's Report to Congress, p. 3.
198 John Unson, Basilan mayor survives roadside bomb attack, THE PHILIPPINE STAR, February 4, 2017 http://www.philstar.com/nation/2017/02/04/1669016/basilan-mayor-survives-roadside-bomb-attack (last accessed June 27, 2017).
199 President's Report to Congress, p. 3.
200 Ruth Abbey Gita, et al., Troops, Maute group clash in Marawi City; 3 dead, 12 injured, SUNSTAR PHILIPPINES, May 23, 2017 http://www.sunstar.com.ph/cagayan-de-oro/localnews/2017/05/25/troops-maute-group-clash-marawi-city-3-dead-12-injured-543446 (last accessed June 27, 2017).
201 President's Report to Congress, p. 4.
202 Francis Wakefield, Maute, ASG gunmen clash with troops in Marawi; 5 soldiers wounded, MANILA BULLETIN, May 24, 2017 http://news.mb.com.ph/2017/05/23/maute-asg-gunmen-clash-with-troopsin-marawi-5-soldiers-wounded/ (last accessed June 27, 2017).
203 Audrey Morallo, AFP: Marawi clashes part of security operation, not terrorist attack, THE PHILIPPINE STAR, May 23, 2017 http://www.philstar.com/headlines/2017/05/23/1702885/afp-marawi-clashespart-security-operation-not-terrorist-attack (last accessed June 27, 2017).
204 Francis Wakefield, Maute, ASG gunmen clash with troops in Marawi; 5 soldiers wounded, MANILA BULLETIN, May 24, 2017 http://news.mb.com.ph/2017/05/23/maute-asg-gunmen-clash-with-troopsin-marawi-5-soldiers-wounded/ (last accessed June 27, 2017).
205 President's Report to Congress, p. 4.
206 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE STAR, May 24, 2017 http://www.philstar.com/headlines/2017/05/24/1703188/maute-group-frees-107-inmatesamid-clashes-marawi-city (last accessed June 27, 2017).
207 President's Report to Congress, p. 4.
208 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE STAR, May 24, 2017 http://www.philstar.com/head1ines/2017/05/24/1703188/maute-group-frees-107-inmatesamid-clashes-marawi-city (last accessed June 27, 2017).
209 President's Report to Congress, p. 4.
210DOE: Power supply in Marawi cut, SUNSTAR, May 25, 2017 http://www.sunstar.com.ph/manila/local-news/2017/05/25/doe-power-supply-marawi-cut-543897 (last accessed June 27, 2017).
211 Id.
212 President's Report to Congress, p. 4.
213 Regine Cabato, Marawi Mayor: Police station, city jail not burned, CNN PHILIPPINES, May 24, 2017 http://cnnphilippines.com/news/2017/05/24/marawi-mayor-police-station-city-jail-not-burned.html (last accessed June 27, 2017).
214 Frances Mangosing, No takeover of gov't facilities in Marawi by Abus, Maute - mayor, INQUIRER.NET, May 23, 2017 http://newsinfo.inquirer.net/898833/no-takeover-of-govt-facilities-in-marawi-saysmayor (last accessed June 27, 2017).
215 Id.
216 President's Report to Congress, p. 4.
217 Chiara Zambrano, Maute terrorists still control key Marawi City bridges, ABS-CBN NEWS, May 31, 2017 http://news.abs-cbn.com/news/05/30/17/maute-terrorists-still-control-key-marawi-city-bridges (last accessed June 27, 2017).
218 President's Report to Congress, p. 5.
219 Regine Cabato, Marawi Mayor: Police station, city jail not burned, CNN PHILIPPINES, May 24, 2017 http://cnnphilippines.com/news/2017/05/24/marawi-mayor-police-station-city-jail-not-burned.html (last accessed June 27, 2017).
220 Patricia Lourdes Viray, Bishop: Maute burned Marawi cathedral, abducted priest, THE PHILIPPINE STAR, May 24, 2017 http://www.philstar.com/headlines/2017/05/24/1703149/bishop-maute-burnedmarawi-cathedral-abducted-priest (last accessed June 27, 2017).
221Prelature of Marawi, CATHOLIC BISHOP CONFERENCE OF THE PHILIPPINES http://www.cbcponline.net/marawi/html/parishes.html (last accessed July 3, 2017).
222 President's Report to Congress, p. 5.
223 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 http://www.philstar.com:8080/headlines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martial-law-report (last accessed June 27, 2017).
224 President's Report to Congress, p. 5.
225 Janvic Mateo, DepEd: Opening of classes in Marawi to push through, THE PHILIPPINE STAR, May 24, 2017 http://www.philstar.com/nation/2017/05/24/1703412/deped-opening-classes-marawi-push-through (last accessed June 27, 2017).
226 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 http://www.philstar.com:8080/headlines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martial-law-report (last accessed June 27, 2017).
230 President's Report to Congress, p. 5.
231 Gerry Lee Gorit, Marawi City hospital not overrun-official, THE PHILIPPINE STAR, May 29, 2017 http://www.philstar.com/headlines/2017/05/29/1704661/marawi-city-hospital-not-overrun-officia1 (last accessed June 27, 2017).
232 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 http://www.philstar.com:8080/head1ines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martial-law-report (last accessed June 27, 2017).
233 Id.
234 President's Report to Congress, p. 5.
235 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 http://www.philstar.com:8080/head1ines/2017/05/31/1705369/fact-check-inconsistencies-dutertes-martia1-law-report (last accessed June 27, 2017).
236 Id.
237 Consolidated Comment, p. 5.
238 OSG Memorandum, p. 5.
239 Id.
240 Id. at 7.
241 Id.
242 Harold D. Lasswell, The Theory of Political Propaganda, 21 AMERICAN POLITICAL SCIENCE REVIEW 627 (1927), also available in https://www.jstor.org/stable/l945515?seq=1#fndtn-page_scan_tab_contents (last visited July 3, 2017).
243 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia, Report No. 33, October 25, 2016, http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 3 (last accessed June 30, 2017).
244 Id. at 4.
245 Id.
246 Id.
247 Id. at 4.
248 Id. at 18.
249 Id. at 18-19.
250 Id. at 19.
251 Id. at 19.
252 Id. at 19.
253Philippines kills leader of Islamic linked militant group in clash, REUTERS, January 5, 2017 http://www.reuters.com/article/us-philippines-security-idUSKBN14P17I (accessed June 30, 2017); OSG Memorandum, p. 8.
254 OSG Memorandum, Annex 3 of Annex 2, Operations Directive 02-2017.
255 Appendix 1 (Joint Intelligence Estimate) to Annex B - Intelligence Support Plan to Operations Directive 02-2017. Confidential Intelligence Document, which cannot be quoted in full but made available to all the Justices by the respondents.
256 OSG Memorandum Annex 2, Affidavit, General Eduardo M. Ano, Chief of Staff AFP, p. 3-5.
257 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia, Report No. 33, October 25, 2016, http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 2 (last accessed June 30, 2017).
258 OSG Memorandum, p. 6.
259 Id.
260 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 3-4 (last accessed June 30, 2017).
261 OSG Memorandum pp. 8-11.
262 OSG Memorandum, Annex 9 of Annex 2, Significant Atrocities in Mindanao Prior to the Marawi City Incident.
263 Id.
264 Id.
265 Id.
266 OSG Memorandum, p. 4.
267 Id.
268 Id.
269 Id.
270 Id.
271 Id. at 5-6.
272 Id. at 6.
273 Id. at 7.
274 Id. at 7-8.
275 Id.
276 Id. at 8.
277 Id. at 5-6.
278 Id. at 12-13.
279 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 https://www.theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/ (last accessed July 3, 2017).
280 HAFEZ, MOHAMMED M., SUICIDE BOMBERS IN IRAQ: THE STRATEGY AND IDEOLOGY OF MARTYRDOM, pp. 68-70.
281 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 https://www.theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/ (last accessed July 3, 2017).
282 Franco, J., The Maute Group - New Vanguard of IS in Southeast Asia, RSIS COMMENTARY (2017).
283 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 2 (last accessed June 30, 2017).
284 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 https://www.theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/ (last accessed July 3, 2017).
285 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 7 (last accessed June 30, 2017).
286 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia http://file.understandingconflict.org/file/2016/10/IPAC_Report_33.pdf 4 (last accessed June 30, 2017).
287 OSG Memorandum, p. 7.
288 Rebecca Gould, Hijra Before ISIS, THE MONTREAL REVIEW (2015), http://www.themontrealreview.com/2009/Hijra-before-ISIS.php (last accessed July 3, 2017).
289 Id.
290 OSG Memorandum, p. 69.
291 Id. at 65.
292 OSG Comment, Annex 3, p. 1.
293 Rebecca Gould, Hijra Before ISIS, THE MONTREAL REVIEW (2015), http://www.themontrealreview.com/2009/Hijra-before-ISIS.php (last accessed July 3, 2017).
294 W Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 https://www.theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/ (last accessed July 3, 2017).
295 Comm. Report No. 120, dated March 15, 2015, p. 50.
296 22 U.S. Code section 2656f(D)(2)
297 United States Department of Defense, DOD Dictionary of Military and Associated Terms 238 (June 2017), http://www.dtic.mil/doctrine/new_pubs/dictionary.pdf (last accessed July 3, 2017).
298 Francois Lopez, If Publicity is the Oxygen of Terrorism - Why Do Terrorists Kill Journalists?, 10 PERSPECTIVES ON TERRORISM, http://www.terrorismanalysts.com/pt/index.php/pot/article/view/490/html (last accessed on June 30, 2017)
299 UN General Assembly Resolution 49/60, Measures to Eliminate International Terrorism (1994).
300 Arizona Department of Emergency and Military Affairs, Various Definitions of Terrorism, https://dema.az.gov/sites/default/files/Publications/AR-Terrorism%20Definitions-BORUNDA.pdf (last accessed July 3, 2017).
301 Christian Walter, Defining Terrorism in National and International Law 5 (2003). https://www.unodc.org/tldb/bibliography/Biblio_Terr_Def_Walter_2003.pdf
302 Id.
303 Id.
304 Id. at 6-7.
305 Noelle Higgins, The Application of International Humanitarian Law to Wars of National Liberation, JOURNAL OF HUMANITARIAN ASSISTANCE 2 (2004).
306 Id. at 6.
307 Id. at 7.
308 Id. at 8.
309 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 1 (1977).
310 Noelle Higgins, The Application of International Humanitarian Law to Wars of National Liberation, JOURNAL OF HUMANITARIAN ASSISTANCE 9 (April 2004) http://sites.tufts.edu/jha/files/2011/04/a132.pdf
311 Id.
312 REV. PEN. CODE, art. 134.
313 See Justice Angelina Sandoval-Guttierez' Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 123 (2001) [Per J. Melo, En Banc].
314People v. Hernandez, 99 Phil. 515, 535-536 (1956) [Per J. Concepcion, En Banc].
315 267 Phil. 603 (1990) [Per J. Gutierrez, Jr., En Banc]
316 Id. at 610-611.
317 320 Phil. 481 (1995) [Per J. Kapunan, First Division].
318 Id. at 489.
319 Id.
320People v. Hernandez, 99 Phil. 515, 549 (1956) [Per J. Concepcion, En Banc].
321What is International Humanitarian Law?, International Committee on Red Cross, https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf (last accessed July 3, 2017).
322 Rep. Act No. 9851, sec. 3 (c) provides:
Section 3.
. . . .
(c) "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
323 Additional Protocol II, art. 1, para. 1.
324 Rep. Act No. 9851, sec. 3(c).
325 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].
326 Id. at 636.
327 Id. at 643.
328 CONST., art. VII, sec. 18.
329 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].
330 Id. at 640-642.
JARDELEZA, J.:
Sec. 18. The President shall be the Commander-inChief 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.The provision is a microcosm of the system of checks and balances fundamental to our republican government. It exclusively vests upon the President the authority to proclaim martial law or suspend the privilege of the writ of habeas corpus-extraordinary powers that are essential to the security and preservation of the Republic and the safety of its citizens in cases where the sovereignty of the nation is under attack from foreign or homegrown enemies. As a check to this awesome executive power, which may be-and, historically, had been-abused, the Constitution grants Congress, the other political arm of government, the plenary power to veto the President's decision for whatever reason and effectively substitute its own wisdom for that of the President's. Additionally, the Constitution confers upon the Supreme Court the jurisdiction to review the factual basis of the executive action and, if the factual basis proves to be insufficient, revoke the same.
The Congress, if not in session, shall, within twentyfour 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.
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.
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended x x x." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion-or, under Art. VII of the Constitution, "imminent danger thereof'"-when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist. [Far] from being full and plenary, the authority to suspend the privilege [of the] writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.The framers of the Constitution presumably agreed with the above discussion and deemed it wise to explicitly state in the commander-in-chief provision that the Court may review "the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ." However, the Court did not actually resolve Lansang on the basis of the sufficiency of factual basis. Instead, upon the Government's urging, the Court went "no further than to satisfy [itself] not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily."21 This led to the conundrum of Lansang, because as the Court claimed the power to inquire into the factual basis of the suspension, what proved decisive was the (lack of) arbitrariness of the President's own assessment of the facts. As observed by the constitutionalist Father Joaquin Bernas, SJ, Lansang "consisted of one step forward, overruling Barcelon and Montenegro, and one step backward, reducing its newly assumed power to nullify."22
Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonweal, regardless of whether his own opinion is objectively correct or not. The untrammeled enjoyment and exercise of such right - which, under certain conditions, may be a civic duty of the highest order is vital to the democratic system and essential to its successful operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of Law - such as by rising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion - there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent - no matter how emphatic or intemperate it may be for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied - to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.20 (Italics in the original, citation omitted.)
The sole standard in measuring [the exercise of police power] is reasonableness. What is "reasonable" is not subject to exact definition or scientific formulation. No allembracing test of reasonableness exists, for its determination rests upon human judgment applied to the facts and circumstances of each particular case.36 (Citations omitted.)Accordingly, the standard of review in determining whether actual rebellion exists and whether public safety requires the extraordinary presidential action should likewise be guided by reasonableness. As well put in an American case, reasonableness is "what 'from the calm sea level' of common sense, applied to the whole situation, is not illegitimate in view of the end attained."37 Since the objective of the Court's inquiry under Article VII, Section 18 is to verify the sufficiency of the factual basis of the President's action, the standard may be restated as such evidence that is adequate to satisfy a reasonable mind seeking the truth (or falsity) of its factual existence. This is a flexible test that balances the President's authority to respond to exigencies created by a state of invasion or rebellion and the Court's duty to ensure that the executive act is within the bounds set by the Constitution. The test does not require absolute truth of the facts alleged to have been relied upon by the President, but simply that the totality of facts and circumstances make the allegations more likely than not to be true.38
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 durinsuch period the necessity for such suspension shall exist.46The Jones Law (1916) retained the same provision and added in a separate section that the Governor-General "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."47
x x x [S]ince the Court will have to rely on the fact-finding capabilities of the executive department, the executive department, if the President wants his suspension [and declaration] sustained, will have to open whatever findings the deEartment might have to the scrutiny of the Supreme Court.66The Court shall weigh and consider the Government's evidence in conjunction with any countervailing evidence that may be presented by the petitioners. Applying the standard of reasonableness, we shall then decide whether the totality of the factual bases considered by the President was sufficient to warrant the declaration of martial law and/or suspension of the privilege of the writ of habeas corpus.
The right of access to the judicial process has been defined as important for ensuring accountability and instilling confidence in the administration of justice. In Union Oil Co. of Cal. v. Leavell, the Seventh Circuit Court of Appeals in the United States recognized a heightened burden to justify judicial secrecy, in order to protect the credibility of the decision before the public. "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires a compelling justification."82 (Emphasis supplied.)I thus propose the following general procedure in the future conduct of similar proceedings: The Government, as early as the filing of its Comment to the petition, should present its case utilizing facts in the public domain or sensitive matter that it decides, in the public interest, to declassify and/or redact.83 Only upon the invocation by the Government of "a specific and on-the-record evaluation that 'closure is essential to preserve higher values [than the public's right to access] and is narrowly tailored to serve that interest'" can in camera presentation of evidence be considered and allowed.84 For this reason, it is imperative that any invocation of privilege be timely made (i.e., in its Comment) so that both the Court and petitioners would have reasonable opportunity to respond. Petitionerscitizens may thereafter be given an opportunity to present countervailing evidence.
For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. x x x [S]ecrecy can best be preserved only when credibility is truly maintained.88Former Yale Law School Dean Eugene V. Rostow once said, "[t]he Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers in a vital national seminar."89 Similarly, when the Court sits, as it does here, as a trier of fact under Article VII, Section 18 of the Constitution, the citizenry is effectively empaneled as jury-at-large, looking over the shoulders of the Court and passing judgment on the judiciousness of our findings. In the end, the legitimacy of this Court's decision here will rest partly on the public's perception on how we conducted our fact-finding inquiry, and how we were able to reach our decision. A decision which is the product of a process done mostly in the sunshine will stand a better chance of gaining the people's acceptance over one clouded by generalized invocations of confidentiality.
Endnotes:
1Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946).
2Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. No. 160261, November 10, 2003, 415 SCRA 44, 284.
3Id. at 124. Citation omitted.
4 CONSTITUTION, Art. VIII, Sec. 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
5 CONSTITUTION, Art. VIII, Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an en-or or question of law is involved.
6Jumamil v. Cafe, G.R. No. 144570, September 21, 2005, 470 SCRA 475, 487.
7Lozano v. Nograles, G.R. No. 187883, June 16, 2009, 589 SCRA 354, 360. "We have generally adopted the 'direct injury test' to determine whether a party has the requisite standing to file suit" (Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, April 25, 2017, Jardeleza, J., dissenting).
8Lozano v. Nograles, supra.
9Kilosbayan, Incorporated v. Morato, G.R. No. 118910, November 16, 1995, 250 SCRA 130, 139.
10Far Eastern Surety and Insurance Co., Inc. v. People, G.R. No. 170618, November 20, 2013, 710 SCRA 358, 368-369.
11Malayang Mangggagawa ng Stayfast Phils., Inc. v. National Labor Relations Commission, G.R. No. 155306, August 28, 2013, 704 SCRA 24, 40-41.
12 CONSTITUTION, Art. VIII, Sec. 15(1).
13 The Constitution is replete with examples of supplemental powers being granted to different branches. For instance, the President's power to veto a bill passed by Congress (Art. VI, Sec. 27) is distinct from his primary duty to ensure that laws are faithfully executed (Art. VII, Sec. 17). Similarly, the Senate's power to ratify treaties entered into by the Executive (Art. VII, Sec. 21) is distinct from its core legislative power (Art. VI, Sec. 1).
14Munsalud v. National Housing Authority, G.R. No. 167181, December 23, 2008, 575 SCRA 144, 151-153.
A pleading is sufficient in form when it contains the following:
1. A Caption, setting forth the name of the court, the title of the action indicating the names of the parties, and the docket number which is usually left in blank, as the Clerk of Court has to assign yet a docket number;
2. The Body, reflecting the designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading;
3. The Signature and Address of the party or counsel;
4. Verification. This is required to secure an assurance that the allegations have been made in good faith, or are true and correct and not merely speculative;
5. A Certificate of Non-forum Shopping, which although not jurisdictional, the same is obligatory;
6. An Explanation in case the pleading is not filed personally to the Court. x x xx x x
In case a party is represented by counsel de parte, additional requirements that go into the form of the pleading should be incorporated, viz.:
1. The Roll of Attorney's Number;
2. The Current Professional Tax Receipt Number; and
3. The IBP Official Receipt No. or IBP Lifetime Membership Number.
4. MCLE Compliance or Exemption Certificate Number and Date of Issue (effective January 1, 2009).x x x
Substance is one which relates to the material allegations in the pleading. x x x It is the embodiment of the essential facts necessary to confer jurisdi tion upon the court. (Underscoring in the original.)
15Galindo v. Heirs of Marciano A. Roxas, G.R. No. 147969, January 17, 2005, 448 SCRA 497, 511.
16 CONSTITUTION, Art. VIII, Sec. 5(5).
17 G.R. No. L-33964, December 11, 1971, 42 SCRA 448.
18 5 Phil. 87 (1905).
19 91 Phil. 882 (1952).
20Lansang v. Garcia, supra note 17 at 473-475.
21Id. at 481.
22 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 541.
23 84 Phil. 368 (1949).
24Id. at 424.
25 G.R. No. L-61388, April20, 1983, 121 SCRA 472.
26Id. at 497.
27Olaguer v. Military Commission No. 34, G.R. No. L-54558, May 22, 1987, 150 SCRA 144, 174. Teehankee, CJ, concurring.
28Soriano v. Mendoza-Arcega, G.R. No. 175473, January 31, 2011, 641 SCRA 51, 57.
29 Compare with the rule in libel that a person is liable only when it is proved that he acted with "actual malice." If a person makes a statement with knowledge of its falsity or with reckless disregard of whether it was true or false, then it may be said that he acted with actual malice. On the other hand, if is not so aware or reasonably determined the facts to be true, even if they later turn out to be false, he cannot be accused of actual malice and would thus not be liable. [New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]. The actual malice rule is similar to the standard of abuse of discretion. In a martial law situation, a President who bases his proclamation on facts which he is aware to be false or with reckless disregard whether they was true or false, may be said to act with grave abuse of discretion. However, if he is not so aware or reasonably determined the facts to be true, he cannot be accused of grave abuse of discretion. This situation is obviated by Art. VII, Sec. 18 when it sets truth or falsity as the standard. Whereas in libel, truth is not a defense, in the review of the sufficiency of the factual basis, truth is an acceptable justification by the executive (and falsity an adequate ground to revoke).
30Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270, 292.
31 See Chavez v. Judicial and Bar Council, G.R. No. 202242, April 16, 2013, 696 SCRA 496.
32 G.R. No. 190293, March 20, 2012, 668 SCRA 504.
33Kalalo v. Office of the Ombudsman, G.R. No. 158189, April 23, 2010, 619 SCRA 141, 148.
34 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 902.
35 G.R. No. 158793, June 8, 2006, 490 SCRA 318.
36Id. at 348. See also Land Transportation Franchising and Regulatory Board v. Stronghold Insurance Company, Inc., G.R. No. 200740, October 2, 2013, 706 SCRA 675 and City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308.
37In Re Hall, 50 Cal.App. 786 (Cal. Ct. App. 1920).
38 On this point, I fully agree with the ponencia that "[i]n 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. Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report." (Ponencia, p. 50.)
39 RULES OF COURT, Rule 133, Sec. 5. Italics supplied.
40Lansang v. Garcia, supra note 17 at 481.
41 In my view, it is difficult to precisely define the graduation between probable cause and substantial evidence, because whereas the latter is the basis for determining administrative liability, the former is a justification for deprivation of liberty.
42 Words and Phrases: Permanent Edition, Vol. 36, pp. 559 & 570.
43 The majority in Fortun v. Macapagal-Arroyo held that the case was already moot.
44 U.S. CONSTITUTION, Art.I, § 9, cl. 2.
45 Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251 (2014), p. 258. The author summarized some of the views in footnote 13:"Chief Justice Taney's opinion in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) is the seminal defense of this position. See also Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 TEMP. L. REV. 391,408 (2007) ("[A] number of courts confronted some form of the legal question raised in Ex parte Merryman, and virtually all of them reached a similar conclusion-i.e., that Lincoln's extralegislative suspension of habeas corpus was unconstitutional."); id. at 408 n.117 (collecting citations). While these lower court opinions are the only ones that address the question directly, dicta and separate opinions from the Supreme Court are consistent with this view. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissenting) ("Although [the Suspension Clause] does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood . . . ."); Ex parte Bollman, 8 U.S. 75, 101 (1807) ("If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so."). For a thorough argument in favor of exclusive congressional suspension power, see Saikrishna Bangalore Prakash, The Great Suspender's Unconstitutional Suspension of the Great Writ, 3 ALB. GOV'T L. REV. 575 (2010); see also 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1336, at 208-09 (photo. reprint 1991) (1833) x x x (treating the suspension power as exclusively legislative); [David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 NOTRE DAME L. REV. 59, 89 (2006)], at 71-72 (maintaining that the Constitution gives the power exclusively to Congress); [Amanda L. Tyler, Suspension as an Emergency Power, 118 YALE L.J. 600. 689-90 (2009)], at 687-89 (arguing that structural, historical, and functional arguments foreclose any claim that the Executive possesses the suspension power); Federal Habeas Corpus, supra note 2, at 1263-65 (arguing that constitutional history and structure support the proposition that suspension power belongs exclusively to Congress. x x x"46 PHILIPPINE ORGANIC ACT OF 1902, Sec. 5, par. 7.
47 THE JONES LAW OF 1916, Sec. 21, par. b.
48 CONSTITUTION (1935), Art. III, Sec. 1(14).
49 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 901.
50 Ackerman, The Emergency constitution, 113 YALE L.J. 1029 (2004).
51 Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251 (2014); Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. 333 (2006).
52Habeas Corpus Suspension Act, 12 Stat. 755 (1863).
53 Enforcement Act of 1871, 17 Stat. 13 (1871).
54Barcelon v. Baker, supra note 18 at 89-90.
55Montenegro v. Castañeda and Balao, supra note 19 at 886.
56Id. Italics in the original.
57Lansang v. Garcia, supra note 17 at 470. Italics in the original.
58Garcia-Padilla v. Enrile, supra note 25 at 492.
59 The ponencia cites the brief exchange between Comm. de los Reyes and Comm. Regalado, but it went no further than to suggest that the RPC definition may be considered. There is no unequivocal intent to make the RPC definition is the controlling definition. As Fr. Bernas, himself a member of the Constitutional Convention, stated in his Brief of Amicus Curiae in Fortun: "Notably, however, the text of the Constitution, unlike the Revised Penal Code, makes no attempt to define the meaning of rebellion. What can all these say about the meaning of rebellion as basis for martial law or suspension of the privilege? x x x [In Lansang, Barcelon, and Montenegro] there is an unmistakable focus on the threat to public safety arising from armed action x x x. [I]t is submitted that the focus on public safety adds a nuance to the meaning of rebellion in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code." Rollo (G.R. No. 190293), p. 516.
60 CONSTITUTION, Art. III, Sees. 3(1) & 6.
61 Note that reference to the word "rebellion" in the fifth paragraph of Article VII, Section 18 is qualified by the phrase "judicially charged," which infers the existence of a penal statute. No such qualification appears in the first paragraph.
62 Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004).
63 The second part of the RPC definition, i.e., "for the purpose of removing from the allegiance to said Government or its laws, the territory x x x" ostensibly refers to a state of mind, which may be inferred from the overt act of armed uprising, but is not easily ascertainable by the President.
64 Black's Law Dictionary, 8th Ed., (2004).
65 The result would be similar to the discarded rule in Barcelon, with the President's determination being semi-conclusive upon the Court. This could not have been the intent of the framers of the Constitution.
66 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 553.
67 In accordance with the provisions of Memorandum Circular No. 78, s. 1964, or the Rules Governing Security of Classified Matter in Government Offices.
68 403 U.S. 713 (1971).
69Id. at 726. Citations omitted.
70 Under the same Memorandum Circular, the term "matter" includes everything, regardless of its physical character, on, or in which information is recorded or embodied. Documents, equipment, projects, books, reports, articles, notes, letters, drawings, sketches, plans, photographs, recordings, machinery, models, apparatus, devices and all other products or substances fall within the general term "matter." Information which is transmitted orally is considered as "matter" for purposes of security.
71 Memorandum Circular No. 78, s. 1964, Sec. II (4)(e) & Sec. III (11)(f).
72 TSN, June 15, 2017, p. 16.
73 TSN, June 15, 2017, p. 16.
74 TSN, June 15, 2017, p. 19.
75 TSN, June 15, 2017, p. 38.
76 TSN, June 15, 2017, pp. 96, 102.
77 TSN, June 15, 2017, p. 103.
78 The Government, invoking reasons of national security, withheld from the petitioners copies of "Operations Directive 02-2017" and "Rules of Engagement for Operations Directive 02-2017," which were attached as Annexes 3 and 4 to the Affidavit of General Eduardo Ano. (See Memorandum for the Government, p. 5.)
79 CONSTITUTION, Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pe1taining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied.)
80 In General Comment No. 13 on Article 14 (Administration of Justice) of the International Covenant on Civil and Political Rights, the Human Rights Committee provides that "[t]he publicity of hearings is an important safeguard in the interest of the individual and of society at large." Furthermore, and by way of illustration, Germany, as a general principle, forbids secret evidence in trials. German courts cannot base their judgments on secret information. The German Federal Constitutional Court has deduced from Article 103 of the German Constitution (Grundgesetz), which guarantees to anyone the right to be heard, the right of all parties to a court procedure to know all the evidence on which the court envisages basing its judgment, and the right to comment on all such evidence. In the 1980 Friedrich Cremer case, however, the German Federal Constitutional Court accepted the use of "second hand evidence [or hearsay evidence based on classified intelligence information] on the condition that the lower probative force of this evidence be taken into account by the Court." (Didier Bigo, Sergio Carrera, Nicholas Hernanz, and Amandine Scherrer, National Security And Secret Evidence In Legislation And Before The Courts: Exploring The Challenges, Study for the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (2014); available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509991/IPOL_STU(2014)509991_EN.pdf, (last accessed July 3, 2017.)
81 Justice Douglas, in his Concurring Opinion in New York Times Co. v. United States, supra note 68 at 724, once said: "Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. x x x" (Italics supplied.)
82 MacLean, In Open Court: Open Justice Principles, Freedom of Information and National Security (2011), p. 11, available at http://spaa.newark.rutgers.edu/sites/default/files/files/Transparency_Research_Conference/Papers/MacLean_Emi.pdf, (last accessed on July 1, 2017).
83 Memorandum Circular No. 78, s. 1964.
84 MacLean, supra a 18, citing Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501, 510 (1984).
85 This "heavy presumption" can, depending on the circumstances, even become well-nigh conclusive as against the privileged nature of a specific matter in issue.
86New York Times v. United States, supra note 68 at 714.
87 Memorandum Circular No. 78, s. 1964, Sec. II (4)(e).
88New York Times v. United States, supra note 68 at 729.
89 Rostow, The Democratic Character of Judicial Review, Faculty Scholarship Series. 66 HARV. L. REV. 193, 208 (1952-1953).
90 Affidavit of Delfin Lorenzana dated June 17, 2017 and its attachments (Annex 1 of Respondent's Memorandum); Affidavit of Eduardo Año dated June 17, 2017 and its attachments (Annex 2 of Respondents' Memorandum).
91 Affidavit of Eduardo Año, pp. 1-2.
92Id. at 7-8; Affidavit of Delfin Lorenzana.
93 Annexes to Edcel Lagman, et al.'s Memorandum.
94 TSN, June 14, 2017, pp. 10-23.
95 It has been suggested that the armed hostilities are not acts of rebellion, but merely acts of terrorism done in order to prevent the actual service of warrants on leaders of local terrorist groups. In my view, it is more difficult to draw a bright-line between terrorism and rebellion today because of ISIS' objective of establishing an Islamic caliphate. Moreover, such reading defies logic and is belied by the facts. The terrorists mounted an offensive, which prior to the President's proclamation had been continuing for almost nine hours. There were no signs of mass retreat by members of the terror groups to elude arrest; on the contrary, they brazenly hoisted ISIS flags across Marawi. The executive department's claim that the military had preempted the terrorist groups' planned takeover of Marawi is confirmed by a video recovered by the military which showed Hapilon and the Maute leaders planning to conduct a Mosulstyle attack on Marawi on Ramadan.,The more plausible conclusion is that the Mautes were forced to hastily move up the timetable forth r plan in view of the military's preemptive action.
96 Prior to May 23, there may be doubts as to the existence of rebellion; after May 23, however, those doubts have all but dissipated.
97 Affidavit of Eduardo Año and its attachments.
98 Affidavit of Eduardo Año, p. 2.
99 Respondents' Comment, Annex 2-A.
100 Respondents' Comment, Annex 2-B.
101 Most notably, Lake Lanao and Agus River.
102 Davao City is roughly 257.3 km from Marawi City.
103 Paterno Esmaquel II, Admit ISIS presence in Philippines, analyst says, RAPPLER, May 25, 2017, available at https://goo.gl/GUW1QM; Returning IS fighters to regroup in the Philippines-experts, PHIL. STAR, April 4, 2017, available at https://goo.gl/CEjKQ3; Frances Mangosing, Analysts: ISIS a real threat to PH, PHIL. DAILY INQUIRER, January 14, 2016, available at https://goo.gl/9djqJt (all websites last accessed July 5, 2017).
104 James Griffiths, ISIS in Southeast Asia: Philippines battle growing threat, CNN, May 30, 2017, available at https://goo.gl/zuBPoV; Erik de Castro, ISIS-linked Rebels' Seizure of Philippines City Should Worry Other Counties in Southeast Asia, REUTERS, available at https://goo.gl/FiyFYL; Thomas Maresca, ISIS expands foothold in Southeast Asia with Philippine siege, USA TODAY, June 10, 2017, available at https://goo.gl/f76X2h; Felipe Villamor, Duterte Faces Test Battle With ISIS-Linked Militants in the Philippines, NY TIMES, May 25, 2017, available at https://goo.gl/kmCeV8; Per Liljas, ISIS Is Making Inroads in the Southern Philippines and the Implications for Asia Are Alarming, TIME, April 14, 2016, available at https://goo.gl/wUfBw3; Oliver Holmes, Explainer: how and why Islamic State-linked rebels took over part of a Philippine city, THE GUARDIAN, May 29, 2017, available at https://goo.gl/FdwGLr; Philippines violence: IS-linked fighters 'among militants in Marawi', BBC, May 26, 2017, available at https://goo.gl/EZ77vV; Crispian Cuss, The returning jihad: ISIL in Southeast Asia, ALJAZEERA, July 12, 2016, available at https://goo.gl/Zb327y (all websites last visited July 5, 2017).
105ISIS Followers in the Philippines: Threats to Philippine Security, Defense & Securite, October 13, 2015, available at https://goo.gl/w7LEQh; Rommel Banlaoi, The Persistent of the Abu Sayyaf Group, INSTITUTE FOR AUTONOMY AND GOVERNANCE, June 14, 2016, available at https://goo.gl/M7rVPF; Konrad-Adenauer-Stiftung & S. Rajaratnam School of International Studies, Countering Daesh Extremism: European and Asian Responses, PANORAMA (2016), available at https://goo.gl/jzp5fw; Angel M. Rabasa, The Rise of ISIS and the Evolving Terrorist Threat in the Asia-Pacific Region, Quad Plus Dialogue (2015), available at http://thf-reports.s3.amazonaws.com/quad/rabasa.pdf; Joshua Spooner, Assessing ISIS Expansion in Southeast Asia: Major Threat or Misplaced Fear, WILSON CENTER (2016), available at https://goo.gl/NKWyeJ; Shashi Jayakumar, The Islamic State Looks East: The Growing Threat in Southeast Asia, 10 CTC SENTINEL 27 (2017), available at https://goo.gl/69PABv (all websites last visited July 5, 2017).
106 If the government was in possession perfect information, then it would have been easy for the military to avert the Marawi siege. Unfortunately, such proposition is more fiction than fact; military intelligence gathering is not an exact science.
CAGUIOA, J.:
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.The third paragraph of Section 18 is a grant of jurisdiction to the Court.
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.
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.The constitutional mandate to review, as worded and intended, necessarily requires the Court to delve into both factual and legal issues indispensable to the final determination of the "sufficiency of the factual basis" of the declaration of martial law and suspension of the privilege of the writ. This cannot be resisted by the mere expediency of relying on the rule that the Court is not a trier of facts; indeed, even when it sits as an appellate court, the Court has recognized exceptions when examination of evidence and determination of questions of fact are proper.9
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.8 (Emphasis supplied)
Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a declaration of martial law or suspension of the writ. Therefore, lacking probable cause of the existence of rebellion, a declaration of martial law or suspension of the writ is without any basis and thus, unconstitutional.I concur with the ponencia's holding that the threshold of evidence for the requirement of rebellion or invasion is probable cause, consistent with Justice Carpio's dissenting opinion in Fortun. It is sufficient for the Executive to show that at the time of the declaration of martial law or suspension of the privilege of the writ, there "[existed] such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense [rebellion] has been committed."12
The requirement of probable cause for the declaration of martial law or suspension of the writ is consistent with Section 18, Article VII of the Constitution. It is only upon the existence of probable cause that a person can be "judicially charged" under the last two paragraphs of Section 18, Article VII, to wit:The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.11 (Emphasis supplied)
Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.The standard of review in Lansang was sound, as situated in the context of Article VII, Section 10, paragraph 2 of the 1935 Constitution. At the time, the power to declare martial law and suspend the privilege of the writ was textually-committed to the Executive without a corresponding commitment to the Court of a review. Even then, on the basis of the principle of checks and balances, the Court determined the constitutionality of the suspension by satisfying itself of some existence of factual basis - or the absence of arbitrariness - without explicit authority from the Constitution then in force.
In the exercise of such authority, the function of the Court is merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative finding; no quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to support a conclusion," even if other minds equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence - in the sense in which the term is used in judicial proceedings - before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, the view that:"x x x If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio . . . With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal . . ."Relying upon this view, it is urged by the Solicitor General"x x x that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily."No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.16
MR. VILLACORTA. Thank you, Madam President.Also:
Just two more short questions. Section 15, lines 26 to 28, states:The President shall be the commander-in-chief of all the armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces . . .I wonder if it would be better to transfer the phrase "whenever it becomes necessary" after the phrase "armed forces," so that it would read: "The President shall be the commander-in-chief of all the armed forces of the Philippines and HE MAY CALL OUT SUCH ARMED FORCES WHENEVER IT BECOMES NECESSARY to prevent or suppress lawless violence, invasion or rebellion." My point here is that the calling out of the Armed Forces will be limited only to the necessity of preventing or suppressing lawless violence, invasion or rebellion. As it is situated now, the phrase "whenever it becomes necessary" becomes too discretionary on the part of the President. And we know that in the past, it had been abused because the perception and judgment as to necessity was completely left to the discretion of the President. Whereas if it is placed in the manner that I am suggesting, the necessity would only pertain to suppression and prevention of lawless violence, invasion or rebellion. May I know the reaction of the Committee to that observation?
x x x x
MR. VILLACORTA. I see. Therefore, the Committee does not see any difference wherever the phrase "whenever it becomes necessary" is placed.
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus; then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. x x x24 (Emphasis supplied)
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event this Manila Hotel incident; everybody knows what happened. Would the Committee consider that an actual act of rebellion?Rebellion under Section 18 is understood as rebellion defined in Article 134 of the Revised Penal Code.
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article 135. I am not trying to pose as an expert about this rebellion that took place in the Manila Hotel, because what I know about it is what I only read in the papers. I do not know whether we can consider that there was really an armed public uprising. Frankly, I have my doubts on that because we were not privy to the investigations conducted there.
Commissioner Bernas would like to add something.
FR. BERNAS. Besides, it is not enough that there is actual rebellion. Even if we will suppose for instance that the Manila Hotel incident was an actual rebellion, that by itself would not justify the imposition of martial law or the suspension of the privilege of the writ because the Constitution further says: "when the public safety requires it." So, even if there is a rebellion but the rebellion can be handled and public safety can be protected without imposing martial law or suspending the privilege of the writ, the President need not. Therefore, even if we consider that a rebellion, clearly, it was something which did not call for imposition ofmartiallaw.25 (Emphasis supplied)
MR. CONCEPCION. The elimination of the phrase "IN CASE OF IMMINENT DANGER THEREOF" is due to the fact that the President may call the Armed Forces to prevent or suppress invasion, rebellion or insurrection. That dispenses with the need of suspending the privilege of the writ of habeas corpus. References have been made to the 1935 and 1973 Constitutions. The 1935 Constitution was based on the provisions of the Jones Law of 1916 and the Philippine Bill of 1902 which granted the American Governor General, as representative of the government of the United States, the right to avail of the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law in the event of imminent danger. And President Quezon, when the 1935 Constitution was in the process of being drafted, claimed that he should not be denied a right given to the American Governor General as if he were less than the American Governor General. But he overlooked the fact that under the Jones Law and the Philippine Bill of 1902, we were colonies of the United States, so the Governor General was given an authority, on behalf of the sovereign, over the territory under the sovereignty of the United States. Now, there is no more reason for the inclusion of the phrase "OR IMMINENT DANGER THEREOF" in connection with the writ of habeas corpus. As a matter of fact, the very Constitution of the United States does not mention "imminent danger." In lieu of that, there is a provision on the authority of the President as Commander-in-Chief to call the Armed Forces to prevent or suppress rebellion or invasion and, therefore, "imminent danger" is already included there.28 (Emphasis supplied)There is sufficient showing that, at the time of the proclamation, probable cause existed for the actual rebellion in Marawi City.
Martial law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety. Necessity creates the conditions for martial law and at the same time limits the scope of martial law. Certainly, the necessities created by a state of invasion would be different from those created by rebellion. Necessarily, therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could not be identical under all conditions. They can only be analogous.31Due to the incorporation of several safeguards, Philippine martial law is now subject to standards that are even stricter than those enforced in connection with martial law in sensu strictiore, in view of the greater limitations imposed upon military participation. Hence, to determine sufficiency of the factual basis of Proclamation 216 in a manner faithful to the 1987 Constitution, such determination must necessarily be done within this strict framework.
MR. VILLACORTA. x x xWhile the ponencia holds that the scope of territorial application could either be the Philippines or any part thereof' without qualification, this does not mean, as the ponencia holds, that the Executive has full and unfettered discretionary authority. The import of this holding will lead to a conclusion that the Executive needs only to show sufficient factual basis for the existence of actual rebellion in a given locality and then the territorial scope becomes its sole discretion. Ad absurdum. Under this formula, the existence of actual rebellion in Mavulis Island in Batanes, without more, is sufficient to declare martial law over the entire Philippines, or up to the southernmost part of Tawi-tawi. This overlooks the public safety requirement and is obviously not the result intended by the framers of the fact-checking mechanism.
x x x x
The President shall be the commander-in-chief of all the armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces . . .
I wonder if it would be better to transfer the phrase "whenever it becomes necessary" after the phrase "armed forces," so that it would read: "The President shall be the commander-in-chief of all the armed forces of the Philippines and HE MAY CALL OUT SUCH ARMED FORCES WHENEVER IT BECOMES NECESSARY to prevent or suppress lawless violence, invasion or rebellion." My point here is that the calling out of the Armed Forces will be limited only to the necessity of preventing or suppressing lawless violence, invasion or rebellion. As it is situated now, the phrase "whenever it becomes necessary" becomes too discretionary on the part of the President. And we know that in the past, it had been abused because the perception and judgment as to necessity was completely left to the discretion of the President. Whereas if it is placed in the manner that I am suggesting, the necessity would only pertain to suppression and prevention of lawless violence, invasion or rebellion. May I know the reaction of the Committee to that observation?
x x x x
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus; then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.32 (Emphasis supplied)
The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus have been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court. x x xWithout a showing that normative acts of rebellion are being committed in other areas of Mindanao, the standard of public safety requires a demonstration that these areas are so intimately or inextricably connected to the armed public uprising in order for them to be included in the scope of martial law. Otherwise, the situation in these areas merely constitute an "imminent threat" of rebellion which does not justify the declaration of martial law and suspension of the privilege of the writ in said areas.
As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing n offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case:"From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.
x x x x"37 (Emphasis supplied)
My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. x x x39 (Emphasis supplied)Corollary to the declaration of martial law and suspension of the privilege of the writ having been issued in Mindanao without a showing of actual rebellion except in Marawi City, the Executive also failed to show the necessity of the declaration of martial law and suspension of the privilege of the writ in the entire Mindanao to safeguard public safety.
JUSTICE REYES:The presentation of military officials heard in camera was similarly vague when it came to establishing the necessity of the declaration of martial law and suspension of the privilege of the writ in the entire Mindanao. Given that the only justification offered in these proceedings tends to show that the declaration of martial law41 is merely "beneficial" or "preferable," then the requirement of public safety is necessarily not met.
So if the actual rebellion happened in Mindanao or specifically in Marawi City, would it be, why is it that the declarations of martial law covered the whole Mindanao?
SOLICITOR GENERAL CALIDA:
That was his political judgment at that time, Your Honor. And since our President comes from Davao City and has been mayor for so many years, he knows the peace and order situation in Davao. He has been talking to all the rebels of the other groups against government. He has information that is made available to him or to anybody else, Your Honor. And therefore I trust his judgment, Your Honor.40
Endnotes:
1 William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (1998) at p. 222.
2 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."
3 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 470 (1986).
4 As formulated in Baker v. Carr, 369 U.S. 186 (1962) and In re McConaughy, 119 NW, 408 (1909) as adopted in this jurisdiction as early as Tanada v. Cuenca (1957), and Casibang v. Aquino (1979), and Marcos v. Manglapus (1989).
5 Crawford, Statutory Construction, page 104: "A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory."
6Dueñas, Jr. v. HRET, 610 Phil. 730, 742 (2009).
7 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 386, 392 (1986).
8 Id. at 470.
9Delos Reyes Vda. Del Prado v. People, 685 Phil. 149, 161 (2012); Sacay v. Sandiganbayan, 226 Phil. 496, 511-512 (1986).
10 684 Phil. 526 (2012).
11 Id. at 598.
12Ho v. People, 345 Phil. 597,608 (1997), citing Allado v. Diokno, 302 Phil. 213 (1994).
13Miro v. Vda. De Erederos, 721 Phil. 772, 787 and 788-789 (2013).
14 See Sadhwani v. Court of Appeals, 346 Phil. 54, 67 (1997).
15 149 Phil. 547 (1971).
16 Id. at 592-594.
17 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 470, 476 and 482 (1986).
18David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
19 392 Phil. 618 (2000).
20 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).
21David v. Macapagal-Arroyo, supra note 18, at 766.
22 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 494 (1986).
23 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 919 (2009 ed.).
24 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 408-409 (1986).
25 Id. at 412.
26People v. Lovedioro, 320 Phil. 481, 488 (1995).
27People v. Geronimo, 100 Phil. 90, 95 (1956).
28 I RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 773-774 (1986).
29 Respondents' Memorandum, pp. 5, 64-65.
30 Id. at 71.
31 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 903 (2009 ed.).
32 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDfNGS AND DEBATES, pp. 408-409 (1986).
33 TSN, June 14, 2017, pp. 126-128.
34 The June 6, 2017 arrest of Cayamora Maute, the father of the Maute brothers, in Davao City does not prove actual rebellion or public necessity of martial law in Davao City - the elder Maute said that he only wanted to get himself treated at a hospital in Davao City because he had difficulty walking. The government had not offered any reason for the arrest. Similarly, the June 10, 2017 arrest of Ominta Romato Maute, the mother of the Maute brothers, in Masiu, Lanao del Sur, also does not, on its own, constitute rebellion and public necessity of martial law in Lanao del Sur.
As well, the June 15, 2017 arrest of Mohammad Noaim Maute alias Abu Jadid, the alleged bomber of the Maute group, in Cagayan de Oro, could be justified under the concept of rebellion as a continuing crime, but does not show actual rebellion or public necessity of martial law in Cagayan de Oro.
35 265 Phil. 325 (1990).
36 206 Phil. 392 (1983).
37Umil v. Ramos, supra note 35, at 334-336.
38 410 Phil. 78 (2001).
39 Id. at 109.
40 TSN, June 14, 2017, pp. 136-137.
41 TSN, June 15, 2017, pp. 53-54, 68-69 and 78.
42 Proclamation No. 55, series of 2016, entitled "Declaring A State ofNational Emergency on Account of Lawless Violence in Mindanao."
43 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 902 (2009 ed.), citing Duncan v. Kahanamoku, 327 U.S. 304, 323 (1946).
MARTIRES, J.:
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of the Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; x x xOn 25 May 2017, President Duterte, in compliance with Sec. 18, Art. VII of the Constitution requiring him to submit a report within forty-eight (48) hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, submitted his written report to the Senate and the House ofRepresentatives.
Notably, while Section 18, Article VII of the Constitution allows any Filipino citizen to assail through an appropriate proceeding the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, it is only the Court which was conferred with the sole authority to review the sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus. In both instances, the citizen and the Court are expressly clothed by the Constitution with authority: the former to bring to the fore the validity of the President's proclamation of martial law and the suspension of the privilege of the writ of habeas corpus, and the latter to make a determination as to the validity thereof.ARTICLE VII
EXECUTIVE DEPARTMENT
x x x x
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 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.
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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (emphasis supplied)
MR. SARMIENTO. Mr. Davide, one last question: Why should it be appropriate proceeding? My idea is to remove simply "appropriate." Say, in a proceeding or action brought before it by any citizen, it is for the Supreme Court to . . . (Drowned by voices)The fact is underscored that Justice Florenz Regalado, a legal luminary in remedial law, insisted during the deliberation that the "proceeding" be qualified as "appropriate." Unmistakably, Justice Regalado acknowledged that the "appropriate proceeding" already exists, and corollary thereto can be logically inferred as existing independently of Section 18, Article VII. To stress, if the intention were otherwise, Section 18, Article VII could have plainly provided that it is by itself a proceeding which a citizen can avail of in assailing the Commander-in-Chief powers of the President. But the use of the word "proceeding," which was even defined as "appropriate," can only mean that the proceeding has already been provided for in existing laws.
MR. REGALADO. It has to be appropriate. Father Bernas will answer that.
MR. CONCEPCION. . . .(Inaudible) proper party to (?)handle the Rules of Court, but if we grant it to anybody, or everybody, they have to hold appropriately.
VOICE. Proper action.
MR. CONCEPCION. Well, of course, the proceeding may be an ordinary action. I think, in general, it is appropriate proceeding.
VOICE. Appropriate.
MR. CONCEPCION. What are cases triable by courts of justice?7
As mentioned earlier, when the Constitutional Commission used the phrase "appropriate proceeding" in Section 18, Article VII, it actually acknowledged that there already exists an available route by which a citizen may attack the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof. And by defining the extent of judicial power of the Court in Section 1, Article VIII, the Constitutional Commission clearly identified that the "appropriate proceeding" referred to in Section 18, Article VII is one within the expanded jurisdiction of the Court.ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
THE CHAIRMAN. We go to the last paragraph. The last paragraph of the revised resolution reads as follows: "THE BASIS OF A PROCLAMATION OF MARTIAL LAW OR SUSPENSION OF THE WRIT OF HABEAS CORPUS MAY BE INQUIRED INTO BY THE SUPREME COURT IN ANY APPROPRIATE PROCEEDING OR ACTION BROUGHT BEFORE IT BY ANY CITIZEN AND IF IT SO DETERMINES THAT NO SUFFICIENT BASIS EXISTS FOR SUCH PROCLAMATION OR SUSPENSION, THE SAME SHALL BE SET ASIDE. THE SUPREME COURT SHALL DECIDE THE PROCEEDING OR ACTION WITHIN THIRTY DAYS FROM ITS FILING." Any remark?Pertinently, Article VIII of the Constitution provides:
MS. AQUINO. Mr. Chairman, the paragraph in effect vests in the Supreme Court the power of judicial review in terms of testing or determining the constitutional sufficiency of the basis of the proclamation. Could it not be formulated in a more forthright way as to positively recognize the power of the Supreme Court to test the constitutional sufficiency or the power of judicial reprieve? No, no, no, formulate it that way, it belongs more to the judiciary than to this . . . (Interrupted)
MR. DAVIDE. Yeah, Mr. Chairman, I was really thinking if this should be placed under the judiciary, in the article on the judiciary, I would submit the matter to Chief Justice Concepcion if the most appropriate place for this provision would be within the article on the judiciary.
MR. CONCEPCION. Well, in connection with the judiciary, we tentatively agreed on the following expression, you know, Section l says: "Judicial power shall be vested on the supreme Court etcetera." So the next paragraph either of the same section or a new section says: "Judicial power is the authority of courts of justice to settle conflicts or controversies involving rights which are legally demandable or enforceable including the question whether or not there has been an abuse of discretion amounting to lack or excess of jurisdiction, as well as the exercise of the power to suspend the privilege of a writ of habeas corpus and to declare Martial law." This is the provision that tentatively we are considering.
MR. DAVIDE. So this particular paragraph, Your Honor, on the Commander-in-Chief's provision giving the Supreme Court the authority to inquire into the factual basis of the proclamation of Martial or the suspension of the privilege of a writ of habeas corpus, can be included . . . (Interrupted)
MR CONCEPCION. It is involved already. We are not satisfied with including the question whether or not there has been an abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction initially because we did not want to mention Martial Law in particular as if we were reflecting upon the action of the Supreme Court. I am particularly under special obligation in these matters because I have been a member of the court and I am expected to exercise greater attention, more courtesy to the Supreme Court, but upon the insistence of Commissioner Colayco we added: "AS WELL AS THE EXERCISE OF THE POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND TO DECLARE MARTIAL LAW." I realize that this would have to be taken up also in connection with the Martial Law powers of the President, but we also consider it relevant to the question of what is the nature and extent of judicial review or judicial power?
The first sentence says: "Judicial power shall be vested." So we have to define somehow what is the nature and extent of judicial power and it simply implies that judicial power extends the power whenever there is a question of abuse of jurisdiction amounting to lack of jurisdiction or excess of jurisdiction. Well, the court has the power because that is the main function of the court in a presidential system to define and delimit the duties and functions of the different branches. That is the system of checks and balances.
MR. BERNAS. Mr. Chairman, in the light of the explanation given by Commissioner Concepcion, may I suggest reformulation of this last paragraph and its transposition to the end of the first paragraph because in the first paragraph we are talking about the imposition of Martial Law, the mechanics for the imposition, the requirements for the imposition and after that we add a sentence saying: "THE SUPREME COURT MAY REVIEW IN AN APPROPRIATE PROCEEDING THE SUFFICIENCY OF THE FACTUAL BASIS OF THE PROCLAMATION OF MARTIAL LAW OR SUSPENSION OF THE WRIT OF HABEAS CORPUS OR ITS EXTENSION AND SHALL DECIDE THE CASE WITHIN THIRTY DAYS FROM ITS FILING."
THE CHAIRMAN. Where will you put that?
MR. BERNAS. At the end of the first paragraph or right after the first paragraph. First we are talking about the imposition, then we talk about the invalidation, then after that we talk about the effects.
THE CHAIRMAN. Will you please repeat?
MR. BERNAS. "THE SUPREME COURT MAY REVIEW IN AN APPROPRIATE PROCEEDING THE SUFFICIENCY OF THE FACTUAL BASIS FOR THE PROCLAMATION OF MARTIAL LAW OR SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS OR THE EXTENSION THEREOF AND SHALL DECIDE THE CASE WITHIN THIRTY DAYS FROM ITS FILING."8 (emphasis supplied)
x x x x
Section 5. The Supreme Court shall have the following powers:A petition for certiorari is proper when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.9 A petition for prohibition may be filed when the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.10 Clearly, these are the two modes, i.e., "appropriate proceedings," by which the Court exercises its judicial review to determine grave abuse of discretion. But it must be stressed that the petitions for certiorari and prohibition are not limited to correcting errors of jurisdiction of a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but extends to any branch or instrumentality of the government; thus, confirming that there are indeed available "appropriate proceedings" to invoke the Court's judicial review pursuant to Section 18, Article VII of the Constitution.
1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus.
x x x x
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1. x x xThus, when petitioners claimed that their petitions were pursuant to Section 18, Article VII of the Constitution, they, in effect, failed to avail of the proper remedy, thus depriving the Court of its authority to grant the relief they pleaded.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.
Necessarily, in discharging its duty under Section 1, x x x to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances.12 (emphasis supplied)
The presence of the first requirement is not controverted as petitioners admit that there was public uprising and taking arms against the Government in Marawi City at the time Proclamation No. 216 was issued. Petitioners capitalize, however, on the second requirement, insisting that there is no proof that the uprising was attended with the culpable intent inherent in the act of rebellion.
- There is a public uprising and taking arms against the Government; and
- The purpose is either to:
- Remove from the allegiance to said Government or its laws the territory of the Philippines or any part thereof, or any body of land, naval, or other armed forces; or
- Deprive the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
In the Report submitted by the President to Congress on 25 May 2017, he specifically chronicled the events which showed the group's display of force against the Government in Marawi City, such as the following:
- Proclamation No. 55, series of 2016 was issued on 4 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao.
- There was a series of violent acts committed by the Maute terrorist group, such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, leading to the issuance ofProclamation No. 55.
- On 23 May 2017, the same Maute terrorist group took over a hospital in Marawi City, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas.
Though Philippine government forces are actually fighting in Marawi City unified armed groups that have pledged allegiance to the Islamic State in Iraq and Syria (ISIS), the group that inevitably stands out in the ongoing military conflict is the Maute Group.According to Professor Banlaoi, these rebel groups are banded together by their belief in the Bangsamoro struggle:22
The Maute Group is brazenly taking the center stage in the ongoing firefights because the main battlefield is Marawi City, the stronghold of the Maute family and the only Islamic city in the Philippines. This armed group holds this label because the whole Maute family is involved in the establishment of an ISIS-linked organization that their followers call the Daulah Jslamiyah Fi Ranao (DFIR) or the Islamic State of Lanao. The Maute family proclaimed the DIFR in September 2014 after performing a bay'ah or a pledge of allegiance o ISIS leader, Abu Bak:ar Baghdadi.
To advance ISIS activities in the provinces of Lanao, the Maute Group formed two highly trained armed groups called Khilafah sa Jabal Uhod (Soldiers of the Caliphate in Mouth Uhod) and Khilafah sa Ranao (Soldiers of the Caliphate in Lanao) headed by the Middle-East educated Maute brothers: Omarkayam Maute and Abdullah Maute. The family organized a clandestine fortress on behalf of ISIS in its hometown in Butig, Lanao del Sur, and other satellite camps in the neighboring towns of Lumbatan, Lambuyanague, Marogong, Masiu, and even Marawi City.
x x x x
In Butig, the Maute Group was able to set up military camps with complete training facilities for combatants, bombers, community organizers and religious preachers. In fact, most of the suspects in the September 2016 Davao City bombing received bomb trainings in Butig where the Maute family initially organized an army of at least 300 ISIS fighters recruited from disgruntled members of families previously associated with the Moro Islamic Liberation Front (MILF).
x x x x
But from Butig, the Maute Group just discreetly formed several hideouts in Marawi City with the intention of controlling the whole city to serve as the headquarters of the Maute-supported the Daulah Islarniya Wilayatul Mashriq (DIWM), the so-called Islamic State Province in East Asia.
The DIWM is the umbrella organization of all armed groups in the Philippines that have pledged allegiance to ISIS.
Among the notorious armed groups in the DIWM are factions of the Abu Sayyaf Group (ASG) and the Bangsamoro Islamic Freedom Fighters (BIFF) as well as remnants of the Anshar Khalifa Philippines (AKP) and the Khilafa Islamiyah Mindanao (KIM). ASG commander Isnilon Hapilon serves as the overall leader or Amir of DIWM, whose members are called by ISIS as the Soldiers of the Caliphate in East Asia.
Contrary to various reports, government forces are fighting in Marawi City not only the Maute Group but also other armed groups under tpe DIWM. There is no doubt, however, that key officials of DIWM are members of the Maute family. (emphasis supplied)
All Muslim radical groups in the Philippines, regardless of political persuasion and theological inclination, believe in the Bangsamoro struggle. The term Bangsa comes from the Malay word, which means nation. Spanish colonizers introduced the term Moro when they confused the Muslim people of Mindanao with the "moors" of North of Africa. Though the use of the term Bangsamoro to describe the "national identity" of Muslims in the Philippines is being contested, Muslim leaders regard the Bangsamoro struggle as the longest "national liberation movement" in the country covering almost 400 years of violent resistance against Spanish, American, Japanese, and even Filipino rule. This 400-year history of Moro resistance deeply informs ASG's current struggle for a separate Islamic state. (emphasis supplied)Clearly, the situation in Mindanao shows not just simple acts of lawless violence or terrorism confined in Marawi City. The widespread armed hostilities and atrocities are all indicative of a rebellious intent to establish Mindanao into an Islamic state or an ISIS wilayah, separate from the Philippines and away from the control of the Philippine Government.
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event-this Manila Hotel incident everybody knows what happened. Would the committee consider that an actual act of rebellion?What can be gleaned from the foregoing is that there was a recognition that acts constituting modern rebellion, with the aid of technological advancements, could be undertaken surreptitiously or could deceptively appear random. However, when isolated acts in several areas tend to indicate an attempt to destabilize the government or deprive the President of his powers in a specific portion of the Philippine territory, it may be considered rebellion, even if the armed public uprising does not manifest in the whole intended territory. As mentioned by Commissioner Regalado, this is a matter of factual appreciation and evaluation; and based on the facts obtained by President Duterte through intelligence reports, there was sufficient basis to conclude that rebellion was taking place in the whole of Mindanao.
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article 135. I am not trying to pose as an expert about this rebellion that took place in the Manila Hotel, because what I know about it is what I only read in the papers. I do not know whether we can consider that there was really an armed public uprising. Frankly, I have my doubts on that because we were not privy to the investigations conducted there.
x x x x
MR. DE LOS REYES. I ask that question because I think modern rebellion can be carried out nowadays in a more sophisticated manner because of the advance of technology, mass media and others. Let us consider this for example: There is an obvious synchronized or orchestrated strike in all industrial firms, then there is a strike of drivers so that employees and students cannot attend school nor go to their places of work, practically paralyzing the government. Then in some remote barrios, there are ambushes by so-called subversives, so that the scene is that there is an orchestrated attempt to destabilize the government and ultimately supplant the constitutional government.
Would the committee call that an actual rebellion, or is it an imminent rebellion?
MR. REGALADO. At the early stages where there was just an attempt to paralyze the government or some sporadic incidents in other areas bpt without armed public uprising, that would only amount to sedition under Article 138, or it can only be considered a tumultuous disturbance.
MR. DE LOS REYES. The public uprisings are not concentrated in one place, which used to be the concept of rebellion before.
MR. REGALADO. No.
MR. DE LOS REYES. But the public uprisings consist of isolated attacks in several places-for example in one camp here; another in the province of Quezon; and then in another camp in Laguna; no attack in Malacañang-but there is a complete paralysis of the industry in the whole country. If we place these things together, the impression is clear-that there is an attempt to destabilize the government in order to supplant it with a new government.
MR. REGALADO. It becomes a matter of factual appreciation and evaluation. The magnitude is to be taken into account when we talk about tumultuous disturbance, to sedition, then graduating to rebellion. All these things are variances of magnitude and scope. So, the President determines, based on the circumstances, if there is presence of a rebellion.
MR. DE LOS REYES. With the concurrence of Congress.
MR. REGALADO. And another is, if there is publicity involved, not only the isolated situations. If they conclude that there is really an armed public uprising although not all over the country, not only to destabilize but to overthrow the government, that would already be considered within the ambit of rebellion. If the President considers it, it is not yet necessary to suspend the privilege of the writ. It is not necessary to declare martial law because he can still resort to the lesser remedy of just calling out the Armed Forces for the purpose of preventing or suppressing lawlessness or rebellion. (emphasis and underlining supplied)
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. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.Contrary to the above pronouncement, nothing in Section 18, Article VII of the Constitution directs Congress to exercise its review powers prior to the judicial review of the Court. The judicial power of the Court, vested by Section 1, Article VIII of the Constitution, is separate and distinct from the review that may be undertaken by Congress. The judicial review by the Court is set in motion by the filing of an appropriate proceeding by a citizen. Indeed, the Constitution even requires that the Court promulgate its decision within thirty days from the filing of the appropriate proceeding. With this explicit directive in the Constitution, it is beyond doubt that the process of judicial review cannot be conditioned upon the exercise by Congress of its own review power.
x x x x
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis.26
Endnotes:
1 Statement of Mr. Francisco A. Rodrigo, Constitutional Commission Deliberations, 31 July 1986, p. 497.
2 Proclamation No. 55, series of 2016.
3 Proclamation No. 216 dated 23 May 2017.
4 Introduced by Senators Vicente Sotto III, Aquilino Pimentel III, Ralph Recto, Juan Edgardo Angara, Nancy Binay, Joseph Victor Ejercito, Sherwin Gatchalian, Richard Gordon, Gregorio Honasan, Panfilo Lacson, Loren Legarda, Emmanuel Pacquiao, Joel Villanueva, Cynthia Villar, Juan Miguel Zubiri. Senators Francis Escudero and Grace Poe did not sign the Resolution.
5 Introduced by Representatives Pantaleon D. Alvarez, Rodolfo C. Fariñas and Danilo E. Suarez.
6Agpalo, Statutory Construction, Fourth Edition, 1998, p. 177.
7 17 June 1986, p. 188.
8 17 June 1986, pp. 183-187.
9 Rules of Court, Rule 65, Sect. 1.
10Id., Sec. 2.
11 737 Phil. 457 (2014).
12Id. at 513.
13Rappler, Inc. v. Bautista, G.R. No. 222702, 5 April 2016. (emphasis supplied)
14Malayang Manggagawa ng Stayfast Phils., Inc. v. National Labor Relations Commission, 716 Phil. 500, 515-516 (2013), citing Yu v. Reyes-Carpio, 667 Phil. 474, 481-482 (2011).
15Clemente v. People, 667 Phil. 515, 525 (2011).
16 Rules of Court, Rule 131, Sect. 1. (emphasis supplied)
17 Francisco, Evidence, p. 11.
18Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).
19 G.R. No. L-33964, 11 December 1991.
20Banloi, Al-Harakatul Al-Islamiyyah, Essays on the Abu Sayyaf Group, Third Edition, p. 137.
21 The Maute Group and rise of family terrorism. www.rappler.com/though-leaders/173037-mautegroup-rise-family-terrorism. Last visited on 3 July 2017.
22Banloi, Al-Harakatul Al-Islamiyyah, Essays on th: Abu Sayyaf Group, Third Edition, pp. 24-25.
23People v. Dasig, 293 Phil. 599, 608 (1993).
24Record of the Constitutional Commission: Proceedings and Debates Vol. II, pp. 412-413.
25 684 Phil. 526 (2012).
26Id. at 558-561.
27Aquino, Jr. v. Ponce Enrile, 158-A Phil. 1, 65 (1974).
28 Consolidated Comment dated 12 June 2017.
TIJAM, J.:
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.Although mere citizenship gives locus standi, there must be prima facie showing of insufficiency of the factual basis for the Proclamation.
The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the ConStitution.8 (Emphasis supplied)However, consistent with Fortun, should Congress procrastinate or default on its duty to review, the Court will proceed to hear petitions challenging the President's action.
But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-empting congressional action. Section 18, Article VII, requires the President to report his actions to Congress, in person or i.n writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the prodamatiou or suspension within 30 days of its issuance. (Emphasis supplied)Therefore, based on the entirely of its Decision in Fortun, it cannot be said that the Court has, as the ponencia states, "abdicated from its bounden duty to review" the factual basis of the proclamation or suspension, or "surrendered the same to Congress."
It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.In the same vein, the Court, in Ampatuan v. Puno,16 involving President Macapagal-Arroyo's Proclamation 1946 which placed the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency, and called out the Armed Forces of the Philippines and the Philippine National Police to prevent and suppress all incidents of lawless violence therein, the burden of proof was likewise placed upon the petitioners questioning the President's decision, thus:
x x x x
The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI.
Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the President's exercise of the calling out power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the take over of the entire ARMM by the DILG Secretary had no basis too.Considering that the foregoing cases also involve the exercise of the President's power as Commander-in-Chief and they likewise inquire into the factual basis of the executive action, the Court's ruling that the burden of proof lies with the petitioners impugning the exercise of such power, should similarly apply to the instant case.
x x x x
Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subjed places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President's actions.
x x x Probable cause is meant such set of facts and circumstances, which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, but it requires less than evidence ihat would justify a conviction.21 (Emphasis supplied)There was probable cause for the President to believe that rebellion was being committed.
Article 134. Rebellion or insurrection - How committed. - The crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. (Emphasis supplied.)That there is an armed uprising in Marawi City is not disputed. The bone of contention lies in the element of culpable purpose.
(a) The attacks of the Maute group and their sympathizers on May 23, 2017 constitute not simply a display of force, but a clear attempt to establish the group's seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.In arriving at these conclusions, the President is presumed to have taken into account intelligence reports, including classified information, regarding the actual situation on the ground. Absent any countervailing evidence, these statements indicate a plan and an alliance among armed groups to take over and establish absolute control over the entire Mindanao. Thus, there appears to be sufficient basis for the imposition of martial law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao.
(b) The acts of the Maute group and their sympathizers have emboldened other armed groups in Mindanao, resulted in the deterioration of public order and safety in Mindanao, and compromised the security of the entire Mindanao.
(c) Their occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines and backdoor passages.
(d) The Maute terrorist group is composed of 263 fully armed members (as of the end of 2016). It chiefly operates in Lanao del Sur but has extensive networks with foreign and local armed groups such as the Jemaah Islamiyah, Mujadin Indonesia Timur and the Abu Sayyaf Group. It adheres to the principles of DAESH and has declared its allegiance to the DAESH. Reports show that the group receives financial and logistical support from foreign-based terrorist groups, the ISIS in particular, and from illegal drug money. And,
(e) Considering the network and alliance-building activities among terrorist groups, local criminals and lawless armed men, the siege of Marawi City is a vital step towards achieving absolute control over the entirety of Mindanao.
x x x The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modem setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material, fifth-column activities including sabotage and intelligence - all these are part of the rebellion which by their nature arc usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.Moreover, the geography of Marawi City provides easy access for rebels to escape to nearby provinces or cities. If martial rule will be limited to Marawi City, rebels may simply move to neighboring areas to elude arrest. The recent apprehension of the parents of the Maute brothers in Davao City and Lanao del Sur, under Arrest Order No. 1, and of another suspected rebel, Sultan Fahad Salic, in Misamis Oriental, indicates that rebels may already be taking advantage of the easy access afforded by Marawi's location. These arrests, made outside Marawi City, lend support to the President's decision to make Proclamation No. 216 apply to the whole of Mindanao.
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.Conclusion
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.
Endnotes:
1Araullo v. Aquino, G.R. No. 209287, July 1, 2014.
2Social Security Commission v. Court of Appeals, G.R. No. 152058, September 27, 2004.
3See Office of the Ombudsman v. Andutan, Jr., G.R. No. 164679, July 27, 2011.
4 G.R. No. 190293, March 20, 2012.
5 Deliberations on the 1987 Constitution, Vol. II, pp. 485 & 732 (Explanations of Commissioners Sarmiento and Quesada on their votes).
6 The same principle has been applied in upholding the doctrine of exhaustion of administrative remedies.
7Roxas v. De Zuzuarregui, Jr., G.R. No. 152072, July 12, 2007.
8Francisco, Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003, citing Angara v. Electoral Commission, 63 Phil. 139 (1936).
9Biraogo v. The Philippine Truth Commission, G.R. No. 192935, December 7, 2010.
10 G.R. No. L-33964, December 11, 1971.
11 Section 2(m), Rule 131.
12Araullo v. Aquino, G.R. No. 209287, February 3, 2015.
13Republic v. Roque, Jr., G.R. No. 203610, October 10, 2016.
14People v. Castillo, G.R. No. 131592-93 - February 15, 2000; Cheng v. Javier, G.R. No. 182485, July 3, 2009.
15 G.R. No. 159085, February 3, 2004.
16 G.R. No. 190259, June 7, 2011.
17Feria v. Court of Appeals, G.R. No. 122954, February 15, 2000.
18Northwest v. Chiong, G.R. No. 155550, January 31, 2008.
19 Id.
20People v. Mirandilla. Jr., G.R. No. 186417, July 27, 2011.
21Clay & Feather International, Inc. v. Lichaytoo, G.R. No. 192105, May 30, 2011.
22 Acronym of a group's full Arabic name, al-Dawla al-Islamiya fi al-Iraq wa al-Sham, translated as "Islamic State in Iraq and Syria."
23 Islamic State of Iraq and Syria.
24 Human Security Act of 2007.
25 Section 2, RA 9372.
26http://www.ijrcenter.org/international-humanitarian-law/ (Last accessed July 5, 2017).
27 "A Human Rights Watch Brieting Paper for the 59th Session of the United Nations Commission on Human Rights March 25, 2003," https://www.hrw.org/legacy/un/chr59/counter-terrorism-bck.pdf (last accessed July 5, 2017).
28 G.R. No. L-35546, September 17, 1974.