EN BANC
G.R. No. 243522, February 19, 2019
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, TEDDY BRAWNER BAGUILAT, JR., EDGAR R. ERICE, GARY C. ALEJANO, JOSE CHRISTOPHER Y. BELMONTE AND ARLENE "KAKA" J. BAG-AO, PETITIONERS, v. HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY, HON. DELFIN N. LORENZANA, SECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE AND MARTIAL LAW ADMINISTRATOR; GEN. BENJAMIN MADRIGAL, JR., CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR; AND HON. BENJAMIN E. DIOKNO, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND THE HOUSE OF REPRESENTATIVES AND THE SENATE OF THE PHILIPPINES AS COMPONENT HOUSES OF THE CONGRESS OF THE PHILIPPINES, RESPECTIVELY REPRESENTED BY HON. SPEAKER GLORIA MACAPAGAL-ARROYO AND HON. SENATE PRESIDENT VICENTE C. SOTTO III, RESPONDENTS.
G.R. No. 243677, February 19, 2019
BAYAN MUNA PARTYLIST REPRESENTATIVE CARLOS ISAGANI T. ZARATE, GABRIELA WOMEN'S PARTY REPRESENTATIVES, EMERENCIANA A. DE JESUS, AND ARLENE D. BROSAS, ANAKPAWIS REPRESENTATIVE ARIEL B. CASILAO, ACT TEACHERS REPRESENTATIVES ANTONIO L. TINO AND FRANCE L. CASTRO, AND KABATAAN PARTYLIST REPRESENTATIVE SARAH JANE I. ELAGO, PETITIONERS, v. PRESIDENT RODRIGO DUTERTE, CONGRESS OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT VICENTE C. SOTTO III AND HOUSE SPEAKER GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEFOF-STAFF LIEUTENANT GENERAL BENJAMIN MADRIGAL, JR., PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL OSCAR DAVID ALBAYALDE, RESPONDENTS.
G.R. No. 243745, February 19, 2019
CHRISTIAN S. MONSOD, RAY PAOLO J. SANTIAGO, NOLASCO RITZ LEE B. SANTOS III, MARIE HAZEL E. LAVITORIA, DOMINIC AMON R. LADEZA, AND XAMANTHA XOFIA A. SANTOS, PETITIONERS, v. SENATE OF THE PHILIPPINES (REPRESENTED BY SENATE PRESIDENT VICENTE C. SOTTO III), HOUSE OF REPRESENTATIVES (REPRESENTED BY GLORIA MACAPAGAL-ARROYO), EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG) SECRETARY EDUARDO M. AÑO, ARMED FORCES OF THE PHILIPPINES (AFP) CHIEF OF STAFF GENERAL BENJAMIN R. MADRIGAL, JR., PHILIPPINE NATIONAL POLICE (PNP) DIRECTOR GENERAL OSCAR D. ALBAYALDE, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., RESPONDENTS.
G.R. No. 243797, February 19, 2019
RIUS VALLE, JHOSA MAE PALOMO, JEANY ROSE HAYAHAY AND RORELYN MANDACAWAN, PETITIONERS, v. THE SENATE OF THE PHILIPPINES REPRESENTED BY THE SENATE PRESIDENT VICENTE C. SOTTO III, THE HOUSE OF REPRESENTATIVES, REPRESENTED BY THE HOUSE SPEAKER GLORIA MACAPAGAL-ARROYO, THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE DIRECTOR GENERAL, PHILIPPINE NATIONAL POLICE, AND ALL PERSONS ACTING UNDER THEIR CONTROL, DIRECTION, INSTRUCTION, AND/OR SUPERVISION, RESPONDENTS.
D E C I S I O N
CARANDANG, J.:
These are consolidated petitions1 filed under Section 18,2 Article VII of the Constitution, assailing the constitutionality of the third extension from January 1, 2019 to December 31, 2019, of the declaration of martial law and suspension of the privilege of the writ of habeas corpus in the entire Mindanao.
Petitioners further pray for the issuance of a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction (WPI) to enjoin the respondents from implementing the one-year extension.
x x x xOn May 25, 2017, within the 48-hour period set in Section 18, Article VII of the 1987 Constitution, the President submitted to the Senate and the House of Representatives his written Report, citing the factual events and reasons that impelled him to issue the said Proclamation. Both Houses expressed their full support to the Proclamation, under the Senate P.S. Resolution No. 388 and House Resolution No. 1050, finding no cause to revoke the same.5
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 [the] flying [of] 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.
x x x x.4
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups (collectively labeled as LTG) which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law. At least four (4) bombings/ Improvised Explosive Device (IED) explosions had been cited in the AFP report. The Lamitan City bombing on 31 July 2018 that killed eleven (11) individuals and wounded ten (10) others, the Isulan, Sultan Kudarat IED explosion on 28 August and 02 September 2018 that killed five (5) individuals and wounded forty-five (45) others, and the Barangay Apopong IED explosion that left eight (8) individuals wounded.On December 12, 2018, the Senate and the House of Representatives, in a joint session, adopted Resolution No. 6, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao for another period of one (1) year from January 1, 2019 to December 31, 2019."19 Joint Resolution No. 6, partly states:
.The DI forces continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim communities.
While the government was preoccupied in addressing the challenges posed by said groups, the CTG, which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule, took advantage and likewise posed serious security concerns. Records disclosed that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations, and arson attacks as part of extortion schemes, which occurred mostly in Eastern Mindanao, had been perpetrated from 01 January 2018 to 30 November 2018. About twenty-three (23) arson incidents had been recorded and it had been estimated that the amount of the properties destroyed in Mindanao alone has reached One Hundred Fifty-Six (156) Million Pesos. On the part of the military, the atrocities resulted in the killing of eighty-seven (87) military personnel and wounding of four hundred eight (408) others.
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom activities to finance their operations. As of counting, there are a total of eight (8) kidnappings that have occurred involving a Dutch, a Vietnamese, two (2) Indonesians, and four (4) Filipinos.
The foregoing merely illustrates in general terms the continuing rebellion in Mindanao. I will be submitting a more detailed report on the subsisting rebellion in the next few days.
A further extension of the implementation of Martial Law and suspension of the privilege of the writ of habeas corpus in Mindanao will enable the AFP, the PNP, and all other law enforcement agencies to finally put an end to the on-going rebellion in Mindanao and continue to prevent the same from escalating in other parts of the country. We cannot afford to give the rebels any further breathing room to regroup and strengthen their forces. Public safety indubitably requires such further extension in order to avoid the further loss of lives and physical harm, not only to our soldiers and the police, but also to our civilians. Such extension will also enable the government and the people of Mindanao to sustain the gains we have achieved thus far, ensure the complete rehabilitation of the most affected areas therein, and preserve the socio-economic growth and development now happening in Mindanao.18
x x x x
WHEREAS, on December 10, 2018, the House of Representatives received a communication dated December 6, 2018 from President Rodrigo Roa Duterte, informing the Senate and the House of Representatives, that on December 5, 2018, he received a letter from Secretary of National Defense Delfin N. Lorenzana, as Martial Law Administrator, requesting for further extension of Martial Law and the suspension of the privilege of the writ of habeas corpus in Mindanao up to December 31, 2019;
WHEREAS, in the same letter, the President cited the joint security report of the Armed Forces of the Philippines (AFP) Chief of Staff, General Carlito G. Galvez, Jr., and the Philippine National Police (PNP) Director- General, Oscar D. Albayalde, which highlighted the accomplishment owing to the implementation of Martial Law in Mindanao, particularly the reduction of the capabilities of different terrorist groups, the neutralization of six hundred eighty-five (685) members of the local terrorist groups (LTGs) and one thousand seventy-three (1,073) members of the communist terrorist' group (CTG); dismantling of seven (7) guerilla fronts and weakening of nineteen (19) others; surrender of unprecedented number of loose firearms; nineteen percent (19%) reduction of atrocities committed by CTG in 2018 compared to those inflicted in 2017; twenty-nine percent (29%) reduction of terrorist acts committed by LTGs in 2018 compared to 2017; and substantial decrease in crime incidence;
WHEREAS, the President nevertheless pointed out that notwithstanding these gains, there are certain essential facts proving that rebellion still persists in the whole of Mindanao and that public safety requires the continuation of Martial Law, among others: (a) the Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups, collectively labeled as LTGs which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law that at least four (4) bombing incidents had been cited in the AFP report: (1) the Lamitan City bombing on July 31, 2018 that killed eleven (11) individuals and wounded ten (10) others; (2) the Isulan, Sultan Kudarat improvised explosive device (IED) explosion on August 28 and September 2, 2018 that killed five (5) individuals and wounded forty-five (45) others; and (3) the Barangay Apopong IED explosion that left eight (8) individuals wounded; (b) the DI forces also continue to pursue their rebellion against the government by furthering the conduct of their radical ization activities and continuing to recruit new members especially in vulnerable Muslim communities; and (c) the CTG, which publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with communist rule which posed serious security concerns;
WHEREAS, the President also reported that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations and arson attacks occurred in Mindanao, killing eighty-seven (87) military personnel and wounding four hundred eight (408) others causing One Hundred fifty-six million pesos (P156,000,000.00) worth of property damages;
WHEREAS, the Senate and the House of Representatives are one in the belief that the security assessment submitted by the AFP and the PNP to the President indubitably confirms the continuing rebellion in Mindanao which compels further extension of the implementation of Martial Law and the suspension of the privilege of the writ of habeas corpus for a period of one (1) year, from January 1, 2019 to December 31, 2019, to enable the AFP, the PNP, and all other law enforcement agencies, to finally put an end to the ongoing rebellion and to continue to prevent the same from escalating in other parts of the country;
WHEREAS, Section 18, Article VII of the 1987 Philippine Constitution authorizes the Congress of the Philippines to extend, at the initiative of the President, the proclamation or suspension of the privilege of the writ of habeas corpus for a period to be determined by the Congress of the Philippines, if the invasion or rebellion shall persist and public safety requires it;
WHEREAS, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred thirty-five (235) affirmative votes comprising the majority of all its Members, has determined that rebellion and lawless violence still persist in Mindanao and public safety indubitably requires further extension of the Proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao: Now, therefore, be it Resolved by the Senate and the House of Representatives in a Joint Session assembled, To further extend Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for another period of one (1) year from January 1, 2019 to December 31, 2019.20
A. Whether there exists sufficient factual basis for the extension of martial law in Mindanao.B. Whether the Constitution limits the number of extensions and the duration for which Congress can extend the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus.
- Whether rebellion exists and persists in Mindanao.
- Whether public safety requires the extension of martial law in Mindanao.
- Whether the further extension of martial law has not been necessary to meet the situation in Mindanao.
C. Whether Proclamation No. 216 has become functus officio with the cessation of Marawi siege that it may no longer be extended.
D. Whether the manner by which Congress approved the extension of martial law is a political question and is not reviewable by the Court [E]n [B]anc.E. Whether the declaration of martial law and the suspension of the privilege of the writ of habeas corpus or extension thereof may be reversed by a finding of grave abuse of discretion on the part of Congress. If so, whether the extension of martial law was attended by grave abuse of discretion.
- Whether Congress has the power to determine its own rules of proceedings in conducting the joint session under Section 18, Article VII of the Constitution.
- Whether Congress has the discretion as to how it will respond to the President's request for the extension of martial law in Mindanao - including the length of the period of deliberation and interpellation of the executive branch's resource persons.
F. Whether the allegations of human rights violations in the implementation of martial law in Mindanao is sufficient to warrant nullification of its extension.
x x x x
[W]hereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery cannot be in better position to ascertain or evaluate the conditions prevailing in the Archipelago.The quantum of proof applied by the President in his determination of the existence of rebellion is probable cause. The Court in Lagman v. Medialdea47 held that "in determining the existence of rebellion, the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers."
But even supposing the President's appraisal of the situation is merely prima facie, we see that petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary accords to acts of the Executive and Legislative Departments of our Government.
As to how the Court may inquire into the President's exercise of power, the Court through the case of Lansang [v. Garcia], 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 the case of Integrated Bar of the Philippines [v. Zamora], this Court added 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." (Citations omitted)In finding sufficiency of the factual basis for the third extension, the Court has to give due regard to the military and police reports which are not palpably false, contrived and untrue; consider the full complement or totality of the reports submitted, and not make a piecemeal or individual appreciation of the facts and the incidents reported. The President's decision to extend the declaration and the suspension of the Writ, when it goes through the review of the Legislative branch, must be accorded a weightier and more consequential basis. Under these circumstances, the President's decision or judgment call is affirmed by the representatives of the People.
In the same Reference Material, the DND reported the following violent incidents for the period of January 1 to November 30, 2018 relative to the continuing rebellion being conducted by the CTRGs:50
Type of Incident Number of Incidents Ambuscade 6 Arson 2 Firefighting/Attack 4 Grenade Throwing 4 Harassment 54 IED/Landmining Explosion 31 Attempted Kidnapping 1 Kidnapping 19 Liquidation 9 Murder 4 Shooting 3 Total 137
From the slides presented by respondents during the Oral Arguments on January 29, 2019, and as summarized by respondents in their Memorandum, the following events transpired in Mindanao:51
Type of Incident Number of IncidentsAmbush 15Raid 14Nuisance Harassment 41Harassment 29Disarming 5Landmining 8SPARU Operations 18Liquidation 23Kidnapping 5Robbery/Hold-up 1Bombing 1Arson 27Total 177
a) No less than 181 persons in the martial law Arrest Orders have remained at large.The cited events demonstrate the spate of violence of rebel groups in Mindanao in pursuit of the singular objective to seize power over parts of Mindanao or deprive the President or Congress of their power and prerogatives over these areas. The absence of motives indicated in several reports does not mean that these violent acts and hostile activities committed are not related to rebellion which absorbs other common crimes.
b) Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less than 2 months is a testament on how lethal and ingenious terrorist attacks have become.
c) On October 5, 2018, agents from the Philippine Drug Enforcement Agency (PDEA) who conducted an anti-drug symposium in Tagoloan II, Lanao Del Sur, were brutally ambushed, in which five (5) were killed and two (2) were wounded.
d) The DI vulnerable Muslim continues to conduct radicalization activities in communities and recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in these areas immensely disrupted the government's delivery of basic services and clearly needs military intervention.
e) Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their express kidnappings. As of December 6, 2018, there are still seven (7) remaining kidnap victims under captivity.
f) Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of communist rebel insurgency in the country. Eight (8) out the 14 active provinces in terms of communist rebel insurgency are in Mindanao.
g) The Communist Terrorist Rebel Group in Mindanao continues its hostile activities while conducting its organization, consolidation and recruitment. In fact, from January to November 2018, the number of Ideological, Political and Organization (IPO) efforts of this group amounted to 1,420, which indicates their continuing recruitment of new members. Moreover, it is in Mindanao where the most violent incidents initiated by this group transpire. Particularly, government forces and business establishment are being subjected to harassment, arson and liquidations when they defy their extortion demands.
h) The CTRG's exploitation of indigenous people is so rampant that Lumad schools are being used as recruiting and training grounds for their armed rebellion and anti-government propaganda. On November 28, 2018, Satur Ocampo and 18 others were intercepted by the Talaingod PNP checkpoint in Davao del Norte for unlawfully taking into custody 14 minors who are students of a learning school in Sitio Dulyan, Palma Gil in Talaingod town. Cases were filed against Ocampo's camp for violations of Republic Act (R.A.) No. 10364, in relation to R.A. No. 7610, as well as violation of Article 270 of the Revised Penal Code (RPC), due to the Philippine National Police's (PNP) reasonable belief that the school is being used to manipulate the minds of the students' rebellious ideas against the government.
[T]he events in the lists were not selected but rather constitute the complete record of all violent incidents that occurred in 2018 that are attributed to a specific threat group or any of its members. The argument advanced is that these incidents should be viewed in their totality and not as unrelated, isolated events. These violent incidents, when combined with the recorded armed encounters or clashes between government troops and rebel groups, and taking into account the substantial casualties resulting from these combined events, show a consistent pattern of armed uprising or rebellion in Mindanao.52 (Emphasis Ours)The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted by the Executive in ascertaining the existence of rebellion and the necessity to quell it.
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."53
It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the government;" and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd action, that cannot be confined a priori, within predetermined bounds." We understand this to mean that the precise extent or range of the rebellion could not be measured by exact metes and bounds. (Citations omitted)Rebellion, within the context of the situation in Mindanao, encompasses no definite time nor particular locality of actual war and continues even when actual fighting has ceased. Therefore, it is not restricted as to the time and locality of actual war nor does it end when actual fighting has ended. The state of rebellion results from the commission of a series or combination of acts and events, past, present and future, primarily motivated by ethnic, religious, political or class divisions which incites violence, disturbs peace and order, and poses serious threat to the security of the nation. The ultimate objective of the malefactors is to seize power from the government, and specifically "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."55
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. Their transitory and abstract nature defies precise measurements; hence, the determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law.57 (Emphasis ours)The nuance added to the concept of rebellion under the 1987 Constitution was amplified in Justice Presbiterio Velasco, Jr.'s Dissenting Opinion in Fortun v. Macapagal-Arroyo,58 citing the excerpts from the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. where it was stated:
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 the Matter of the Petition for Habeas Corpus of Benigno S. Aquino v. Enrile,60 which was decided in 1974 under the 1973 Constitution, the Court has already acknowledged that:
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. x x x.59 (Italics in the original)
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 material, 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.61Equally relevant is the very early pronouncement by this Court in Montenegro v. Castañeda62 in relation to the suspension of the privilege of the writ of habeas corpus under Proclamation No. 210, s. 1950, describing the nature of rebellious acts:
To the petitioner's unpracticed eye the repeated encounters between dissident elements and military troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security, analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general scheme to overthrow his government vi et armis, by force and arms.63Recognizing the political realities in the country, the geography of Mindanao, the increasing number of local and foreign sympathizers who provide financial support, and the advances in technology that have emboldened and reinforced the terrorists' and extremists' capabilities to disturb peace and order, the declaration of martial law cannot be restricted only to areas where actual fighting continue to occur. As a result, rebels have become more cunning and instigating rebellion from a distance is now more attainable, perpetrating acts of violence clandestinely in several areas of Mindanao.
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.Ultimately, it is the Commander-in-Chief, aided by the police and military, who is the guardian and keeper of public safety.
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.
MR. SUAREZ.The records of the Constitutional Commission show that Commissioner Suarez's proposal to add a similar 60-day limitation to the extension of an initial proclamation of martial law was not adopted by a majority of the members of the Commission. The framers evidently gave enough flexibility on Congress to determine the duration of the extension.Thank you, Madam President. I concur with the proposal of Commissioner Azcuna but may I suggest that we fix a period for the duration of the extension, because it could very well happen that the initial period may be shorter than the extended period and it could extend indefinitely. So if Commissioner Azcuna could put a certain limit to the extended period, I would certainly appreciate that, Madam President. x x x x x x x x xMR. SUAREZ.Thank you Madam President. May we suggest that on line 7, between the words "same" and "if," we insert the phrase FOR A PERIOD OF NOT MORE THAN SIXTY DAYS, which would equal the initial period for the first declaration just so it will keep going.THE PRESIDENT.What does the Committee say?MR. REGALADO.May we request a clarification from Commissioner Suarez on this proposed amendment? This extension is already a joint act upon the initiative of the President and with the concurrence of the Congress. It is assumed that they have already agreed not only on the fact of extension but on the period of extension. If we put it at 60 days only, then thereafter they have to meet again to agree jointly on a further extension.MR. SUAREZ.That is precisely intended to safeguard the interests and protect the lives of citizens.MR. REGALADO.In the first situation where the President declares martial law, there had to be a prescribed period because there was no initial concurrence requirement. And if there was no concurrence, the martial law period ends at 60 days. Thereafter, if they intend to extend the same suspension of the privilege of the writ or the proclamation of martial law, it is upon the initiative of the President this time, and with the prior concurrence of Congress. So, the period of extension has already been taken into account by both the Executive and the Legislative, unlike the first situation where the President acted alone without prior concurrence. The reason for the limitation in the first does not apply to the extension.MR. SUAREZ.We are afraid of a situation that may develop where the extended period would be even longer than the initial period, Madam President. It is only reasonable to suggest that we have to put a restriction on the matter of the exercise of this right within a reasonable period.MR. REGALADO.Madam President, following that is the clause "extend the same if the invasion or rebellion shall persist and public safety requires it." That by itself suggests a period within which the suspension shall be extended, if the invasion is still going on. But there is already the cut-off 60-day period. Do they have to meet all over again and agree to extend the same?MR. SUAREZ.That is correct. I think the two of them must have to agree on the period; but it is theoretically possible that when the President writes a note to the Congress, because it would be at the instance of the President that the extension would have to be granted by Congress, it is possible that the period for the extension may be there. It is also possible that it may not be there. That is the reason why we want to make it clear that there must by a reasonable period for the extension. So, if my suggestion is not acceptable to the Committee, may I request that a voting be held on it Madam President.FR. BERNAS.Madam President, may I just propose something because I see the problem. Suppose we were to say: "or extend the same FOR A PERIOD TO BE DETERMINED BY CONGRESS" — that gives Congress a little flexibility on just how long the extension should be. x x x x x x x x xTHE PRESIDENT.Is that accepted by Commissioner Suarez?MR. SUAREZ.Yes, Madam President.MR. OPLE.May I just pose a question to the Committee in connection with the Suarez amendment? Earlier Commissioner Regalado: said that that point was going to be a collective judgment between the President: and the Congress. Are we departing from that now in favor, of giving Congress the plenipotentiary power to determine the period?FR. BERNAS.Not really, Madam President, because Congress would be doing this in consultation with the President, and the President would be outvoted by 300 Members.MR. OPLE.Yes, but still the idea is to preserve the principle of collective judgment of that point upon the expiration of the 60 days when, upon his own initiative, the President seeks for an extension of the proclamation of martial law or the suspension of the privilege of the writ.FR. BERNAS.Yes, the participation of the President, is that when we put all of these encumbrances on the President and Commander-in-Chief during an actual invasion and 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. That is the reason I am in favor of the present formulation. However, if Commissioner Suarez insists on his amendment, I do not think I will stand in the way.Thank you, Madam President.MR. SUAREZ.We will accept the committee suggestion, subject to style later on. x x x x x x x x x.72
We recognized that "rebellion is not confined within predetermined bounds," and "for the crime of rebellion to be consummated, it is not required that all armed participants should congregate in one place x x x and publicly rise in arms against the government for the attainment of their culpable purpose." We held that the grounds on which the armed public uprising actually took place should not be the measure of the extent, scope or range of the actual rebellion when there are other rebels positioned elsewhere, whose participation did not necessarily involve the publicity aspect of rebellion, as they may also be considered as engaged in the crime of rebellion.In sum, Proclamation No. 216 did not become functus officio with the cessation of the Marawi siege. Considering that rebellion persists and that the public safety requires it, there is sufficient factual basis to extend martial law in Mindanao for the third time.
In a similar vein, the termination of armed combat in Marawi does not conclusively indicate that the rebellion has ceased to exist. It will be a tenuous proposition to confine rebellion simply to a resounding clash of arms with government forces. As noted in Aquino, Jr. v. Enrile, modern day rebellion has other facets than just the taking up of arms, including financing, recruitment and propaganda, that may not necessarily be found or occurring in the place of the armed conflict.76 (Citations omitted)
No less than the Constitution, under Section 16 of Article VI, grants the Congress the right to promulgate its own rules to govern its proceedings, to wit:The allegations of human rights violations in the implementation of martial law in Mindanao is not sufficient to warrant a nullification of its extension.Section 16. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (Emphasis ours)In Pimentel, Jr., et al. v. Senate Committee of the Whole, this constitutionally-vested authority is recognized as a grant of foil discretionary authority to each House of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process.
This freedom from judicial interference was explained in the 1997 case of Arroyo v. De Venecia, wherein the Court declared that:But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals.In other words, the Court cannot review the rules promulgated by Congress in the absence of any constitutional violation. Petitioners have not shown that the above-quoted rules of the Joint Session violated any provision or right under the Constitution.
Construing the full discretionary power granted to the Congress in promulgating its rules, the Court, in the case of Spouses Dela Paz (Ret.) v. Senate Committee on Foreign Relations, et al. explained that the limitation of this unrestricted power deals only with the imperatives of quorum, voting and publication. It should be added that there must be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.79 (Citations omitted)
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.In Lagman v. Pimentel III,81 the Court discussed these safeguards to wit:
Nevertheless, cognizant of such possibility of abuse, the framers of the 1987 Constitution endeavored to institute a system of checks and balances to limit the President's exercise of the martial law and suspension powers, and to establish safeguards to protect civil liberties. Thus, pursuant to Section 18, Article VII of the 1987 Constitution:In addition to the safeguards provided by the Constitution, adequate remedies in the ordinary course of law against abuses and violations of human rights committed by erring public officers are available including the following:
(a) The President may declare martial law or suspend of the privilege of the writ of the privilege of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration or suspension.
(b) The President's proclamation or suspension shall be for a period not exceeding 60 days.
(c) Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress.
(d) The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension.
(e) The President cannot set aside the Congress' revocation of his proclamation or suspension.
(f) The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval.
(g) Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine.
(h) The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it.
(i) The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension or the extension thereof, in an appropriate proceeding filed by any citizen.
(j) The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding.
(k) Martial law does not suspend the operation of the Constitution.
Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military and the armed forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights.
(l) Martial law does not 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.
(m) The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
(n) Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released.82
1. R.A. No. 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation as Well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof);In relation to the international human rights principles established under the Universal Declaration of Human Rights (UDHR), the law enforcement officials are also guided by the principles and safeguards declared in the International Covenant on Civil and Political Rights. Soft law instruments of particular relevance to law enforcement include United Nations' (UN) Basic Principles [o]n the Use of Force and Firearms by Law Enforcement Officials (BPUFF),83 Code of Conduct for Law Enforcement Officials (CCLEO),84 Standard Minimum Rules for the Treatment of Prisoners (SMR),85 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles),85 and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims Declaration).86 These instruments uphold the principles of legality, proportionality, necessity, and accountability in situations involving the use of force by law enforcers.
2. R.A. No. 9372 or the Human Security Act of 2007;
3. R.A. No. 9745 or the Anti-Torture Act of 2009; and
4. Writs of Amparo (A.M. No. 07-9-12-SC) and Habeas Data (A.M. No. 08-1-16-SC); and
5. Universal Declaration of Human Rights (UDHR).
Very truly yours, | |
(SGD) EDGAR O. ARICHETA | |
Clerk of Court |
Endnotes:
1Rollo (G.R. No. 243522), pp. 3-48; rollo (G.R. No. 243677), pp. 3-38; rollo (G.R. No. 243745), pp, 3-30; rollo (G.R. No. 243797), pp. 7-18.
2 Section 18. x x x
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.
3Rollo (G.R. No. 243522), p. 152; see also Resolution of Both Houses No. 6, id. at 56-58.
4 The fifth and sixth Whereas Clauses, Proclamation No. 216.
5Rollo (G.R. No. 243522), pp. 152-153.
6 G.R. Nos. 231658, 231771 and 231774, July 4, 2017.
7Rollo (G.R. No. 243522), p. 153.
8 Id. at 108-112 and 153-155.
9 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
10Rollo (G.R. No. 243522), pp. 201-202.
11 Id. at 201.
12 Id. at 202.
13 Id. at 208-213.
14 Id. at 51-55.
15 Id. at 52.
16 Id. at 52-53.
17 Id. at 113-123.
18 Id. at 53-54.
19 Id. at 56-58.
20 Id. at 57-58.
21Rollo (G.R. No. 243522), pp. 753-787; rollo (G.R. No. 243677), pp. 258-294; rollo (G.R. No. 243745), pp. 276-318; rollo (G.R. No. 243797), pp. 295-313.
22Rollo (G.R. No. 243745), p. 23.
23 Id. at 26-27.
24Rollo (G.R. No. 243522), pp. 7-8.
25 Id. at 21.
26 Id. at 10, 37-38.
27Rollo (G.R. No. 243677), p. 22.
28Rollo (G.R. No. 243522), pp. 10, 38-41.
29Rollo (G.R. No. 243745), p. 312.
30Rollo (G.R. No. 243522), p. 7.
31 Id. at 41-42.
32 Id. at 9.
33 Id. at 33-34.
34 Id. at 8, 11, 45-46.
35 Id. at 802, 806-809.
36 Id. at 159.
37 Id. at 162-163.
38 Id. at 159, 170-173.
39 Id. at 173-176.
40 Id. at 174-175.
41 Id. at 159, 178-187.
42 Id. at 159, 187-189.
43 Id. at 160, 190-192.
44 Id. at 160, 192-196.
45 Amended Advisory, id. at 731-734.
46 91 Phil. 882, 890 (1952).
47 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 147.
48 522 Phil 705, 854 (2006).
49 Respondents' Memorandum, citing Slides No. 8 and 9, Reference Material, Joint Session on the Extension of Martial Law in Mindanao, rollo (G.R. No. 243522), p. 826.
50 Respondents' Memorandum, citing Slide No. 26, Reference Material, Joint Session on the Extension of Martial Law in Mindanao, id. at 826-827.
51 Id. at 832-833.
52 Id. at 838.
53 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
54 G.R Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 205-206.
55 Revised Penal Code, Art. 134.
56 G.R Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1.
57 Id. at 208-209.
58 G.R. Nos. 190293, 190294, 190301, 190302, 190307, 190356, 190380, March 20, 2012.
59 Id.
60 G.R. No. L-35538, September 17, 1974, 59 SCRA 183.
61 Id. at 240-241.
62 91 Phil. 882, 890 (1952).
63 Id.
63 Resolution No. 06, Series of 2018 dated October 24, 2018, rollo (G.R. No. 243522), pp. 113- 114.
64 Resolution No. 01, Series of 2018 dated November 15, 2018, id. at 115.
65 Resolution No. 2018-09 dated November 15, 2018, id. at 117-118.
66 Resolution No. 10, Series of 2018 dated November 20, 2018, id. at 119-120.
67 Resolution No. 03, Series of 2018 dated November 16, 2018, id. at 121-122.
68 Id. at 123.
69 G.R. Nos. 190293, 190294, 190301, 190302, 190307, 190356, 190380, March 20, 2012.
71 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1.
72 II Record of the Constitutional Commission (1986), pp. 508-509.
72Rollo (G.R. No. 243522), pp. 861-881.
73Representative Edcel C. Lagman, et al. v. Senate President Aquilino Pimentel III, et al., supra note 9.
74 Id.
75 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
76 Id.
77 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
79 Id.
80 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 205.
81 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
82 Id.
83 Adopted by the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990. <https://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx> (visited February 15, 2019)
84 Adopted by General Assembly Resolution 34/69 of 17 December 1979. <https://www.ohchr.org/en/professionalinterest/pages/lawenforcementofficials.aspx> (visited February 15, 2019)
85 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. <https://www.unodc.org/pdf/criminal_justice/UN_Standard__Minimum_Rules_for_the_Treatment_of_Prisoners.pdf> (visited February 15, 2019)
85 Adopted by General Assembly resolution 43/173 of 9 December 1988. <https://www.ohchr.org/en/professionalinterest/pages/detentionorimprisonment.aspx> (visited February 15, 2019)
86 Adopted by General Assembly resolution 40/34 on 29 November 1985. <http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/40/34> (visited February 15, 2019)
x x x xThese consolidated petitions impugn the constitutionality of Joint Resolution No. 6.
WHEREAS, on May 23, 2017, President Rodrigo Roa Duterte issued 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", to address the rebellion launched by the Maute Group and elements of Abu Sayyaf Group in Marawi City, and to restore peace and order in Mindanao;
WHEREAS, on July 22, 2017, the Senate and the House of Representatives in a Special Joint Session adopted Resolution of Both Houses No. 2, extending the Proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole Mindanao until December 31, 2017;
WHEREAS, on December 13, 2017, upon the request of President Rodrigo Roa Duterte, the Senate and the House of Representatives in a Joint Session adopted Resolution of Both Houses No. 4, further extending the Proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in Mindanao until December 31, 2018;
WHEREAS, on December 10, 2018, the House of Representatives received a communication dated December 6, 2018 from President Rodrigo Roa Duterte, informing the Senate and the House of Representatives, that on December 5, 2018, he received a letter from Secretary of National Defense Delfin N. Lorenzana, as Martial Law Administrator, requesting for further extension of Martial Law and the suspension of the privilege of the writ of habeas corpus in Mindanao up to December 31, 2019;
WHEREAS, in the same letter, the President cited the joint security report of the Armed Forces of the Philippines (AFP) Chief of Staff, General Carlito G. Galvez, Jr., and the Philippine National Police (PNP) Director-General, Oscar D. Albayalde, which highlighted the accomplishment owing to the implementation of Martial Law in Mindanao, particularly the reduction of the capabilities of different terrorist groups, the neutralization of six hundred eighty-five (685) members of the local terrorist groups (LTGs) and one thousand seventy-three (1,073) members of the communist terrorist group (CTG); dismantling of seven (7) guerilla fronts and weakening of nineteen (19) others; surrender of unprecedented number of loose firearms; nineteen percent (19%) reduction of atrocities committed by CTG in 2018 compared to those inflicted in 2017; twenty-nine percent (29%) reduction of terrorist acts committed by LTGs in 2018 compared to 2017; and substantial decrease in crime incidence;
WHEREAS, the President nevertheless pointed out that notwithstanding these gains, there are certain essential facts proving that rebellion still persists in the whole of Mindanao and that public safety requires the continuation of Martial Law, among others: (a) the Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups, collectively labeled as LTGs which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law that at least four (4) bombing incidents had been cited in the AFP report: (1) the Lamitan City bombing on July 31, 2018 that killed eleven (11) individuals and wounded ten (10) others; (2) the Isulan, Sultan Kudarat improvised explosive device (IED) explosion on August 28 and September 2, 2018 that killed five (5) individuals and wounded forty-five (45) others; and (3) the Barangay Apopong IED explosion that left eight (8) individuals wounded; (b) the DI forces also continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities and continuing to recruit new members especially in vulnerable Muslim communities; and (c) the CTG, which publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with communist rule which posed serious security concerns;
WHEREAS, the President also reported that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations and arson attacks occurred in Mindanao, killing eighty-seven (87) military personnel and wounding four hundred eight (408) others and causing One hundred fifty-six million pesos (P156,000,000.00) worth of property damages;
WHEREAS, the Senate and the House of Representatives are one in the belief that the security assessment submitted by the AFP and the PNP to the President indubitably confirms the continuing rebellion in Mindanao which compels further extension of the implementation of Martial Law and the suspension of the privilege of the writ of habeas corpus for a period of one (1) year, from January 1, 2019 to December 31, 2019, to enable the AFP, the PNP, and all other law enforcement agencies, to finally put an end to the ongoing rebellion and to continue to prevent the same from escalating in other parts of the country;
WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the Congress of the Philippines to extend, at the initiative of the President, the proclamation or suspension of the privilege of the writ of habeas corpus for a period to be determined by the Congress of the Philippines, if the invasion or rebellion shall persist and public safety requires it;
WHEREAS, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred thirty-five (235) affirmative votes comprising the majority of all its Members, has determined that rebellion and lawless violence still persist in Mindanao and public safety indubitably requires further extension of the Proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao: Now, therefore, be it
Resolved by the Senate and the House of Representatives in a Joint Session assembled, To further extend Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for another period of one (1) year from January 1, 2019 to December 31, 2019.1
x x x. Since the Constitution did not define the term "rebellion," it must be understood to have the same meaning as the crime of "rebellion" in the Revised Penal Code (RPC).In fact, when the President declared martial law and suspended the privilege of the writ, he expressly cited the definition of rebellion under the Revised Penal Code. Proclamation No. 216 states:
During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner Florenz D. Regalado alluded to actual rebellion as one defined under Article 134 of the RPC: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 Malacanang, 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. (Emphasis supplied)
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 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.(Emphasis supplied)Based on its statutory definition in the Revised Penal Code, 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 ten-itory 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.4
x x x xThe identity of the rebel group used by Congress to extend martial law and suspend the privilege of the writ must be limited to the same rebel group contained in the initial proclamation of the President. This is in consonance with Section 18, Article VII of the 1987 Constitution which states:
WHEREAS, Section 18 Article VII of the Constitution provides that "x x x [i]n 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 aimed 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.5 (Emphasis supplied)
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 Constitution is clear that upon the initiative of the President and the joint voting of both chambers of Congress, the proclamation of martial law and the suspension of the privilege of the writ may be extended "if the x x x rebellion shall persist" or, in simpler terms, if the rebellion led by the rebel group cited in the initial proclamation shall continue. In this case, the rebellion of the Maute group had undoubtedly been terminated upon the death of their leader, Isnilon Hapilon, and the liberation of Marawi City. In fact, in a statement dated 17 October 2017, President Duterte publicly declared "Marawi's liberation and beginning of (Marawi City's) rehabilitation."6 On October 2017, National Defense Secretary Delfin Lorenzana also affirmed the "termination of all combat operations in Marawi City."7 Furthermore, in the year 2018, the President and representatives of the Armed Forces of the Philippines have been consistent in their public statements that the actual rebellion in Marawi City had finally ended:
x x x x (Emphasis supplied)
SENIOR ASSOCIATE JUSTICE CARPIO:Hence, the end of the armed Maute rebellion bars the extension of Proclamation No. 216 which was issued because of the Maute rebellion. Any extension pursuant to Proclamation No. 216 under Joint Resolution No. 6 is unconstitutional. To uphold the extension of martial law and the suspension of the privilege of the writ under Joint Resolution No. 6 in the absence of an actual rebellion would sanction a clear violation of Section 18, Article VII of the 1987 Constitution.Is there an on-going armed rebellion in Marawi City?MAJOR GENERAL LORENZO:Not in Marawi City, Your Honor.10 (Emphasis supplied)
During my interpellation of the Solicitor General in the oral arguments last 29 January 2019, the Government could not confirm that the elements of the Maute group are engaged in actual rebellion in Davao City. The record states:x x x. The President's conclusion, that there was an armed public uprising, the culpable purpose of which was the removal from the allegiance of the Philippine Government a portion of its territory and the deprivation of the President from performing his powers and prerogatives, was reached after a tactical consideration of the facts. In fine, the President satisfactorily discharged his burden of proof.After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension of the privilege of the writ of habeas corpus. As Justice Carpio decreed in his Dissent in Fortun: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.
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 x. (Emphasis supplied)
SENIOR ASSOCIATE JUSTICE CARPIO:The Government could not even affirm the existence of an ongoing armed rebellion by the Maute group in Davao City. In fact, the Government has not named any province, city or municipality in the entire Mindanao where an actual rebellion by the Maute group is ongoing. Consequently, under the Constitution, there is no sufficient factual basis to extend the declaration of martial law under Proclamation No. 216 in the whole of Mindanao for another period of one (1) year.Mr. Sol-Gen, is there an ongoing armed rebellion today in Davao City?SOLICITOR GENERAL CALIDA:In certain parts, Your Honor, there is.SENIOR ASSOCIATE JUSTICE CARPIO:Committed by whom?SOLICITOR GENERAL CALIDA:I understand the communist groups, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:So the NPA?SOLICITOR GENERAL CALIDA:NPA.SENIOR ASSOCIATE JUSTICE CARPIO:Certainly not the MILF? Peace agreement.SOLICITOR GENERAL CALIDA:I have not been to Davao for quite some time, Your Honor, so I don't exactly know.SENIOR ASSOCIATE JUSTICE CARPIO:But you are aware that we have a peace agreement now with the MILF. I don't think.... (interrupted)SOLICITOR GENERAL CALIDA:MILF, yes, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:So the rebellion in Davao, parts of Davao, as you say, is being committed by the NPA, correct?SOLICITOR GENERAL CALIDA:Well, if I'm not mistaken, yes, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:But not by the MILF, correct?SOLICITOR GENERAL CALIDA:Not by the... or MI...?SENIOR ASSOCIATE JUSTICE CARPIO:The MILF.SOLICITOR GENERAL CALIDA:Not to my knowledge, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:Well, we have a peace agreement. I don't think they have broken that. x x x the [Maute/ISIS] group, they are not in Davao?SOLICITOR GENERAL CALIDA:I'm not sure of that, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:But do you know x x x [if] they have armed rebels there operating in Davao City?SOLICITOR GENERAL CALIDA:That is a possibility because Davao City is a huge city and in fact... (interrupted)SENIOR ASSOCIATE JUSTICE CARPIO:Do you have any... (interrupted)SOLICITOR GENERAL CALIDA:...there was... (interrupted)SENIOR ASSOCIATE JUSTICE CARPIO:...information that they are operating in Davao City?SOLICITOR GENERAL CALIDA:I have no... (interrupted)SENIOR ASSOCIATE JUSTICE CARPIO:Have they engaged in any skirmish with the military or police in Davao City?SOLICITOR GENERAL CALIDA:I have no personal knowledge at this time but I can research, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:Okay, you include that in your memo. How about the BIFF, are they committing rebellion in Davao City?SOLICITOR GENERAL CALIDA:I'm not sure, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:So you are only sure of the NPA?SOLICITOR GENERAL CALIDA:For now, Yes, Your Honor, but I will ask the military, Your Honor, and the police to update me if there are incidents like what you've mentioned, Your Honor.SENIOR ASSOCIATE JUSTICE CARPIO:So okay, but you are defending martial law throughout Mindanao but you are not sure if the Maute and the ISIS groups are operating in Davao City?SOLICITOR GENERAL CALIDA:Well, at this time I don't have the knowledge but I will try to get feedback, Your Honor.12 (Emphasis supplied)
Endnotes:
1 Annex "B" of Lagman Petition, Rollo, G.R. No. 243522 (Vol. 1), pp. 56-58.
2 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 (18 July 1986).
3 G.R. No. 231658,4 July 2017, 829 SCRA 1, 182-183.
4Ladlad v. Velasco, 551 Phil. 313, 329 (2007).
5 Bayan Mima Petition, Rollo, G.R. No. 243677, p. 8.
6 Eimor P. Santos, Duterte declares liberation of Marawi <http://cnnphilippines.com/news/2017/10/17/Marawi-liberation-Duterte.html> (last accessed 1 February 2019). See also Claire Jiao and Lara Tan, Fighting in Marawi City is over <http://cnnphilippines.com/news/2017/10/23/Marawi-crisis.html> (last accessed 1 February 2019); Trisha Macas and Raffy Tima, Duterte declares Marawi City is free <http://www.gmanetwork.com/news/news/nation/629820/duterte-declares-marawi-city-is-free/story/> (last accessed 1 February 2019); Allan Nawal, Jeoffrey Maitem, Richel Umel and Divina Suson, Marawi 'liberated' from terrorists but battle drags on <http://newsinfo.inquirer.net/938592/president-duterte-marawi-city-liberated-terrorists> (last accessed 1 February 2019); AFP, AP and Francis Wakefield, Battle of Marawi ends <https://news.mb.com.ph/2017/10/24/battle-of-marawi-ends/> (last accessed 1 February 2019); Catherine S. Valente, Marawi free <http://www.manilatimes.net/marawi-free/357155/> (last accessed 1 February 2019); Rosette Adel, Duterte declares Marawi freed from terrorists <http://www.philstar.com/headlines/2017/10/17/1749752/duterte-declares-marawi-freed-terrorists> (last accessed 1 February 2019); PTV News, President Duterte declares liberation of Marawi City <https://ptvnews.ph/president-duterte-declares-liberation-marawi-city/> (last accessed 1 February 2019).
7Claire Jiao and Lara Tan, Fighting in Marawi City is over <http://cnnphilippines.com/news/2017/10/23/Marawi-crisis.html> (last accessed 2 February 2019). See also AFP, AP and Francis Wakefield, Battle of Marawi ends <https://news.mb.com.ph/2017/10/24/battle-of-marawi-ends/> (last accessed 2 February 2019).
8 Christine O. Avendaño, Duterte to mark Marawi liberation in October <https://newsinfo.inquirer.net/993817/duterte-to-mark-marawi-liberation-in-october#ixzz5cdrFD6B5> (last accessed 31 January 2019).
9 Pia Ranada, President in Fatigues: In 2018, Duterte turns to military for (almost) everything <https://www.rappler.com/newsbreak/in-depth/218680-duterte-turns-to-philippine-military-yearend-2018> (last accessed 1 February 2019).
10 TSN, p. 42.
11 Supra note 3, at 192-194, citing Fortun v. President Macapagal-Arroyo, 684 Phil. 595-598 (2012).
12 TSN, pp. 93-95.
PERALTA, J.:
Once again, the Court is confronted with the issue of the constitutionality of the further extension of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao by the Congress with the adoption of Resolution of Both Houses No. 6, which approved the extension of Proclamation No. 216 from January 1, 2019 until December 31, 2019.
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.The elements of rebellion are:
The Dawlah Islamiyah is the Daesh-affiliate organization in the Philippines responsible for the Marawi Siege. It is comprised of several local terrorist groups that pledged allegiance to Daesh leader Abu Bakr Al-Baghdadi.The Court further stated that:x x x x
After the successful Marawi Operation, the Basilan-based ASG is left with 74 members; the Maute Group with 30 members; the Maguid Group has 11; and the Turaifie Group has 22 members with a total of 166 firearms.
However, manpower increased by more or less 400, with almost the same strength that initially stormed Marawi City, through clandestine and decentralized recruitment of the Daesh-inspired groups at their respective areas of concentration.
ASG Basilan-based recruited more or less 43 new members in Basilan; more or less 250 by the Maute Group in the Lanao provinces; 37 by the Maguid Group in Sarangani and Sultan Kudarat, and more or less 70 by the Turaifie Group in Maguindanao. These newly recruited personalities were motivated by clannish culture as they are relatives of terrorist personalities; revenge for their killed relatives/parents during the Marawi operations; financial gain as new recruits were given an amount ranging from PhP15,000.00 to 50,000.00; and, as radicalized converts.
These newly recruited members are undergoing trainings in tactics, marksmanships and bombing operations at the different areas of Mount Cararao Complex, Butig, and Piagapo all of Lanao Del Sur. Recruits with high potentials [sic] were given instruction on IED-making and urban operations.
Furthermore, the situation has become complicated with the influx of Foreign Terrorist Fighters (FTFs), capitalizing on the porous maritime boundaries in Southern Philippines, in the guise as tourists and business men. As of this period, 48 FTFs were monitored joining the Daesh-inspired groups, particularly the Maute Group in Lanao and Turaifie Group in Central Mindanao. The closeness of these two groups is predominant with @ Abu DAR who has historically established link with Turaifie.
On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2nd Semester. x x x
The AFP's data also showed that Foreign Terrorist Fighters (FTFs) are now acting as instructors to the new members of the Dawlah Islamiyah.11 (Citations omitted.)
Petitioners in G.R. Nos. 236061 and 236155 have asserted that the rebellion no longer persists as the President himself had announced the liberation of Marawi City, and armed combat has ceased therein. Petitioners in G.R. No. 236061 added that Col. Romeo Brawner, Deputy Commander of the Joint Task Force Ranao, was also quoted as saying that the Maute-ISIS problem was about to be over. The statements, however, were admittedly made on October 17, 2017, nearly two months before the President's request for extension in December 2017. Such declaration does not preclude the occurrence of supervening events as the AFP discovered through their monitoring efforts. It is not inconceivable that remnants of the Dawlah Islamiyah would indeed regroup, recruit new members and build up its arsenal during the intervening period. The termination of a rebellion is a matter of fact. Rebellion does not cease to exist by estoppel on account of the President's or the AFP's previous pronouncements. Furthermore, it is settled that rebellion is in the nature of a continuing crime. Thus, members of the Dawlah Islamiyah who evaded capture did not cease to be rebels.In the belief that the rebellion that spawned the Marawi crisis continues to persist until the present, the third extension for the implementation of martial law and the suspension of the privilege of the writ of habeas corpus was initiated by the President and approved by the Congress.
So also, it does not necessarily follow that with the liberation of Marawi, the DAESH/ISIS-inspired rebellion no longer exists. Secretary Lorenzana, during the Congress' Joint Session on December 13, 2017, explained that while the situation in Marawi has substantially changed, the rebellion has not ceased but simply moved to other places in Mindanao x x x.x x x x
In Lagman, We recognized that "rebellion is not confined within predetermined bounds," and "for the crime of rebellion to be consummated, it is not required that all armed participants should congregate in one place x x x and publicly rise in arms against the government for the attainment of their culpable purpose." We held that the grounds on which the armed public uprising actually took place should not be the measure of the extent, scope or range of the actual rebellion when there are other rebels positioned elsewhere, whose participation did not necessarily involve the publicity aspect of rebellion, as they may also be considered as engaged in the crime of rebellion.
In a similar vein, the termination of armed combat in Marawi does not conclusively indicate that the rebellion has ceased to exist. It will be a tenuous proposition to confine rebellion simply to a resounding clash of arms with government forces. As noted in Aquino, Jr. v. Enrile, modern day rebellion has other facets than just the taking up of arms, including financing, recruitment and propaganda, that may not necessarily be found or occurring in the place of the armed conflict[.]12 (Citations omitted; emphasis supplied.)
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups (collectively labeled as i TG) which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law. At least four (4) bombings/Improvised Explosive Device (IED) explosions had been cited in the AFP report. The Lamitan City bombing on 31 July 2018 that killed eleven (11) individuals and wounded ten (10) others, the Isulan. Sultan Kudarat IED explosion on 28 August and 02 September 2018 that killed five (5) individuals and wounded forty-five (45) others, and the Barangay Apopong IED explosion that left eight (8) individuals wounded.During the Oral Argument, the AFP Deputy Chief of Staff for Intelligence, Major General Pablo Lorenzo, made a presentation in behalf of the respondents to inform the Court about the security situation in Mindanao, to establish that rebellion still exists and that public safety requires the extension of martial law in Mindanao. He stated:
The DI forces continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim communities.
While the government was preoccupied in addressing the challenges posed by said groups, the CTG, which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule, took advantage and likewise posed serious security concerns. Records disclosed that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations, and arson attacks as part of extortion schemes, which occurred mostly in Eastern Mindanao, had been perpetrated from 01 January 2018 to 30 November 2018. About twenty-three (23) arson incidents had been recorded and it had been estimated that the amount of the properties destroyed in Mindanao alone has reached One Hundred Fifty-Six (156) Million Pesos. On the part of ihe military, the atrocities resulted in the killing of eighty-seven (87) military personnel and wounding of four hundred eight (408) others.
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom activities to finance their operations. As of counting, there are a total of eight (8) kidnappings that have occurred involving a Dutch, a Vietnamese, two (2) Indonesians, and four (4) Filipinos.13
[A]s a backgrounder, the violent take-over of Marawi City by local terrorist groups and embedded foreign terrorist fighters affiliated with the Islamic State led the President to declare martial law in Mindanao on May 23, 2017 by virtue of Presidential Proclamation No. 216. This bloody attempt to create a separate province or wilayat under the purported Islamic State caliphate necessitated a strong, swift and decisive action by the government. On July 22, 2017, martial law was extended for five more months until the end of 2017 in order to sustain the operational momentum against the Daulah Islamiyah hold-up in Marawi and prevent the spillover of rebellion in other areas in Mindanao, as a result, Marawi City was liberated from terrorists on October 23, 2017. On December 13, 2017, the Philippine Congress approved anew another extension of martial law up to the end of 2018 to effectively quell the remnants of this rebel groups that continue to take up arms against the government. On February 6, 2018, the Supreme Court upheld the constitutionality of the martial law extension. On December 12, 2018, the Philippine Congress approved the request of the President to extend Martial law for one more year up to the end of 2019. The constitutionality of which, however, is again being questioned in this august body. This presentation will therefore show that after almost 20 months since martial law was first declared in Mindanao, rebellion still exists and that the safety of the public is imperiled by the rebellion notwithstanding the gains achieved during its period of implementation. The factual basis for the extension of martial law is anchored on the continuing rebellion being waged by the communist terrorist group and the local communist terrorist groups along with their foreign terrorist allies. The following slides provide the current status and activities of these groups.In respondents' Memorandum, the Office of the Solicitor General mentioned the Department of National Defense's reference material presented during the Joint Session of Congress on the extension of martial law, which showed a total of 137 violent incidents committed by the local terrorist rebel groups (ASG, BIFF, DI, and other groups that have established affiliation with ISIS/DAESH) from January 1 to November 30, 2018, as follows:
(Slides being flashed on the screen.)
For the local terrorist groups and the foreign terrorist fighters, there are two major terrorist groups waging rebellion in the country. First, the Daulah Islamiyah which is the local franchise of the Islamic State and the Bangsamoro Islamic Freedom Fighters or BIFF, a faction that broke away from the MILF when the latter agreed to settle for enhanced autonomy instead of an independent Islamic State. The Daulah Islamiyah or "DI" is a collective term of all local terrorist groups that have pledged allegiance to Islamic State leader Abu Bakar al Baghdadi. It used to be headed by the late Isnilon Hapilon. After its failed attempt in Marawi, the DI continued its rebellion. In its official newsletter from the (inaudible) Roll dated 22 September 2018, the Islamic State provided the rationale for the continuing war that is being waged by its affiliates around the world and I quote: "To defend the lands of Islam and to make the word of Allah the highest". Moreover, the Islamic State, through the same newsletter, as well as its mock news agency [continues] to claim credit for the accomplishments of the soldiers of the kilafa or caliphate including those in East Asia wilayat indeed as the Islamic State Central in Iraq and Syria [continues] to lose territories, the burden of continuing its fight and projecting its global presence has now fallen into the hands of its affiliates including the East Asia wilayat to which the DI belongs. At present, the Daulah Islamiyah is comprised of the post Marawi remnants of the local Islamic State affiliated groups namely: the Lanao based Maute group led by Owayda M. Abdulmajid alias Abu Dar, the Maguindanao based Turaife group still headed by former BIFF Vice-Chairman for Internal Affairs Esmail Abdulmalik a.k.a. Abu Turaife, the Saranggani based Maguid group whose de facto leader is now Jeffrey Nilong a.k.a. Moymoy and the Basilan and Sulu based Abu Sayyaf groups led by Puruji Indama and Iiajan Sawadjaan, respectively. The Daulah Islamiyah's total manpower is placed at 574 equipped with 564 firearms, its presence and influence can be felt in 154 barangays in Western, Southern, and Central Mindanao. Foreign Terrorists Fighters or FTF's are also embedded with these DI affiliated groups which further complicate the government's effort to effectively address this LTGs. Aside from their high level of motivation brought about by their deep ideological foundations, they usually bring with them combat experience, contacts in international terrorist networks and functional knowledge in urban warfare tactics, IED fabrication and employment, anti-armor operations, cyber communications and financial operations, among others. As such, the FTF's continued presence facilitates the transmission of ideology, knowledge and competencies to local terrorist groups. They have also become primary instigators of more daring and deadly attacks. For instance, on July 31, 2018, foreign terrorist fighter Abu Kathir Al-Maghribi became the first suicide bomber recorded in the Philippines since the rise of the Islamic State. As of the latest count, there are four validated foreign terrorist fighters in the country while another 60 are on the watch list. For 2018, this DI affiliated groups figured in 72 encounters or clashes with government security forces resulting in 84 killed and 168 wounded on the pail of the enemy, government security forces and civilians. In one instance, specifically last 16 November 2018, the ASG was able to kill five soldiers and injured 23 others. One of the soldiers who was killed, Corporal Renhart T. Macad was even beheaded. An FTF was likewise seen together with the engaged Abu Sayyaf group. From January to December 2018, the DI carried out 76 composed of ten other DI affiliated groups and 66 Abu Sayyaf group atrocities or violent activities, the most significant of which are the bombings and kidnappings. With regards to bombings, the most significant are the bombing in Lamitan City, Basilan by the ASG, two bombings in Isulan, Sultan Kudarat and the recent bombing in Cotabato City by the DI Turaife group and one bombing in General Santos City by the DI-Maguid group. Collectively, this resulted in one, 17, rather, killed and 100 injured mostly civilians. On kidnappings, which has been the primary source of funds by the Abu Sayyaf group, a total of 18 incidents victimizing 39 individuals were recorded for 2018. This allowed the group to accumulate approximately 41.9 million pesos in ransom payments. Thus far, a total of eight kidnapped victims composed of five foreigners and three locals are still being held captive by the Abu Sayyaf group. The DI affiliated groups have been monitored actively conducting radical ization activities in vulnerable Muslim communities and recruiting new members specifically targeting aggrieved relatives and orphans of killed Daulah Islamiyah members during the Marawi crisis. Opportunity to exact revenge and monetary incentive have become common inducements for potential recruits. The DI was also monitored conducting specialized military trainings on several occasions this year, a total of 36 recruitment and eight training activities were conducted by the DI last year. Significant of this were the IED training conducted by the DI-Maute group in Balindong, Lanao del Sur in March, the sniping training conducted by the DI-Maguid group in Palembang, Sultan Kudarat in May 2018, and the combat training of Abu Sayyaf group members under Basilan based sub-leader Puruji Indama, [along] with one Moroccan national in Sumisip, Basilan in August 2018. As mentioned earlier, the Bangsamoro Islamic Freedom Fighters broke away from the MILF when the latter decided to seriously [engage] in peace negotiations with the government. The BIFF has adopted the original objective of the MILF which is to establish an independent Bangsamoro state. As such, the group is strongly opposed to the MILF sponsored Bangsamoro Organic Law which is threatening the groups relevance and purpose of existence. Because of this, the BIFF is exploring all means to derail its implementation while continuing its violent push for the creation of an independent Bangsamoro homeland. At present, the BIFF is composed of the Karialan and Bungos factions. Their combined manpower and firearms are placed at 264 and 254, respectively. The BIFF [continues] to exert considerable influence in 50 barangays in the Municipality of Shariff Aguak, Datu Saudi-Ampatuan, Datu Unsay, Datu Hoffer Ampatuan, Datu Salibo and Datu Piang, all in Maguindanao. It also operates in some parts of North Cotabato, particularly in Pikit, Midsayap and Aleosan. For 2018, the BIFF figured in 55 encounters or clashes with government security forces that resulted in 14 killed and 36 injured in the enemy/government security forces and civilians alike. Furthermore, the BIFF managed to undertake 76 atrocities or violent activities; the most significant are the 21 IED attacks and 40 harassments of military installations. All these incidents resulted in the killing of 7 government forces, 8 civilians and the wounding of 23 government forces and 5 civilians. Significantly, the BIFF was able to conduct 2 IED trainings, one in South Uti and another one in Shariff Aguak, Maguindanao in February and December last year with around 50 participants who were tasked to conduct test missions in key urban areas in Central Mindanao after these trainings.14
In the same reference material, the Department of National Defense reported the incidents for the period January 1 to November 30, 2018 relative to the continuing rebellion being conducted by the CTG, as follows:
Type of Incident Number of IncidentsAmbuscade 6Arson 2Firefighting/Attack 4Grenade Throwing 4Harassment 54IED/Landmining Explosion 31Attempted Kidnapping 1Kidnapping 19Liquidation 9Murder 4Shooting 3TOTAL 13715
The violent incidents of harassment, kidnapping and arson were explained by Major General Pablo Lorenzo, thus:
Type of Incident Number of IncidentsAmbush 15Raid 4Nuisance Harassment 41Harassment 29Disarming 5Landmining 8SPARU Operations 18Liquidation 23Kidnapping 5Robbery/Hold-Up 1Bombing 1Arson 27TOTAL 17716
The word "harassment" is a military term for a type of armed attack where the perpetrators fire at stationary military personnel, auxiliaries, or installations for a relatively short period of time (as opposed to a full armed attack) for the purpose of inflicting casualties, as a diversionary effort to deflect attention from another tactical undertaking, or to project presence in the area, x x x. Harassments are undertaken not in isolation but as part of a bigger military strategy. This is a common tactic employed by the Communist Terrorist Group, the ASG, DI, and BIFF. On the other hand, kidnapping is undertaken particularly by the ASG to finance its operational and administrative expenses in waging rebellion. As shown in the presentation during the oral arguments, the ASG has amassed an estimated PhP41.9 million in ransom proceeds for 2018 alone. With regard to arson, the tactic is commonly used by the same rebel groups for various purposes such as intimidating people who are supportive of the government, as punitive action for those who refuse to give in to extortion demands, or simply to terrorize the populace into submission. All these activities are undoubtedly undertaken in furtherance of rebellion.17Undeniably, the AFP reports show that rebellion persists in Mindanao, and the violent activities, including bombing, kidnapping, harassment, and encounters with the military committed by the LTG rebel groups are in furtherance of rebellion with the goal to create a separate province or wilayat under the purported Islamic State caliphate (DI) and to establish an independent Bangsamoro state (BIFF) and deprive the President and the Congress of their powers or prerogatives. On the other hand, the CTG aims to overthrow the duly constituted government and establish communist rule.
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 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.20 (Emphasis in the original.)The bombings and all other attacks, kidnapping, killings, harassment, recruitment of new members, and propaganda activities conducted by the rebel and terrorist groups show that rebellion continues because these atrocities and propaganda activities are perpetrated by the same rebel groups. The concerted destabilizing activities and actions of the rebel groups are all committed in furtherance of rebellion.
Considering the above-cited incidents, while it may be true that the Maute group had been eliminated in Marawi, this should not be seen as the end of the rebellion. Other individuals or groups acting in concert with or animated by the same aim as that of the Maute group, including the New People's Army (NPA), still operate in other parts of Mindanao, all with the purpose of wrestling power and authority from the legitimate government. If the purpose of declaring martial law in the first place is to be achieved, then all other acts of rebellion, whether done by the original group that started in Marawi or by some other related or similar groups, should be appreciated as parts intrinsically linked to the rebellion that called forth the proclamation of martial law.
- 181 persons in the martial law arrest orders have remained at large;
- Despite the dwindling strength and capabilities of the terrorist groups, the recent bombings that transpired in Mindanao collectively killed 16 people and injured 63 others in less than 2 months;
- On October 5, 2018, agents from the Philippine Drug Enforcement Agency who conducted an anti-drug symposium in Lanao del Sur were brutally ambushed, in which 5 were killed and 2 were wounded;
- The DI continues to conduct radicalization activities in vulnerable Muslim communities and recruitment of new members, targeting relatives and orphans of killed DI members;
- As of December 6, 2018, there are still 7 remaining kidnap victims under captivity;
- Mindanao remains to be the hotbed of communist rebel insurgency in the country. 8 out of the 14 active provinces in terms of communist rebel insurgency are in Mindanao;
- From January to November 2018, the number of Ideological Political and Organizational efforts of the communist group amounted to 1420 which indicated their continuing recruitment of new members;
- The CTG exploitation of indigenous people is so rampant that Lumad schools are being used as recruiting and training grounds. On November 28, 2018, Satur Ocampo and 18 others were intercepted in a PNP checkpoint in Davao del Norte for unlawfully taking into custody 14 minors.
Perhaps another reason why the territorial scope of martial law should not necessarily be limited to the particular vicinity where the armed public uprising actually transpired, is because of the unique characteristic of rebellion as a crime. "The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion[,] though crimes in themselves[,] are deemed absorbed in one single crime of rebellion." Rebellion absorbs "other acts committed in its pursuance". Direct assault, murder, homicide, arson, robbery, and kidnapping, just to name a few, are absorbed in the crime of rebellion if committed in furtherance of rebellion; [i]t cannot be made a basis of a separate charge. Jurisprudence also teaches that not only common crimes may be absorbed in rebellion but also "offenses under special laws [such as Presidential Decree No. 1829] which are perpetrated in furtherance of the political offense." "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."It is also to be underscored that with modern means of communication and transportation, it is no longer that difficult for affiliated groups of rebels to communicate and move from place to place. Putting out the rebellion in Marawi does not necessarily mean the end of the rebellion as members of said movement, or their affiliated groups, could easily get in touch with each other and coordinate acts of violence, terrorism and rebellion. Or, they could easily be in one place at one time and in another a short time later.x x x x
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. Their transitory and abstract nature defies precise measurements; hence, the determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law.
Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there is actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. It is not intended merely to prevent the escape of lawless elements from Marawi City, but also to avoid enemy reinforcements and to cut their supply lines coming from different parts of Mindanao. Thus, limiting the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof ineffective and useless.
x x x. Clearly, the power to determine the scope of territorial application belongs to the President. "The Court cannot indulge in judicial legislation without violating the principle of separation of powers, and, hence, undermining the foundation of our republican system."23 (Citations omitted.)
Endnotes:
1 P.S. Resolution No. 388 (Senate); House Resolution No. 1050 (House of Representatives).
2 G.R. No. 231658, G.R. No. 231771 and G.R. No. 231774, July 4,2017, 829 SCRA 1.
3 G.R. No. 235935, G.R. No. 236061, G.R. No. 236145 and G.R. No. 236155, February 6, 2018.
4 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. (Emphasis supplied.)
5Lagman, et al. v. Pimentel III, et al., supra note 3.
6Lagman v. Medialdea, supra note 2, at 214.
7Lagman, et al. v. Pimentel III, et al., supra note 3.
8Id.
9Id.
10Id.
11Id.
12Id.
13 President Rodrigo R. Duterte's Letter, dated December 6, 2018, addressed to the Congress; rollo, G.R. No. 243522 (Vol. 1), pp. 53-54.
14 TSN, Oral Argument, G.R. Nos. 243522, 243677, 243745 and 243797, January 29, 2019, pp. 11-14.
15 Memorandum of Respondents; rollo, G.R. No. 243522 (Vol. 2), p. 826.
16Id. at 826-827.
17Id. at 853-854.
18People v. Lovedioro, 320 Phil. 481, 488 (1995).
19 99 Phil. 515 (1956).
20Id. at 535-536.
21Lagman, el al. v. Pimentel III, et al., supra note 3.
22Supra note 2.
23 Id. at 207-209.
24Lagman v. Medialdea, supra note 2, at 209-210.
25Id. at 154-155.
26 "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." (Art. VII, Sec. 18, Par. 3, CONSTITUTION.)
27 684 Phil. 526 (2012).
28Id. at 561.
PERLAS-BERNABE, J.:
I concur in the result.
Again, before the Court are consolidated petitions1 assailing the sufficiency of the factual basis of Resolution of Both Houses No. 62 dated December 12, 2018,3 which grants a third extension to the effectivity of Proclamation No. 216,4 entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao," for another year, or from January 1, 2019 to December 31, 2019. The pertinent portions of this Resolution read:
WHEREAS, the President nevertheless pointed out that notwithstanding these gains, there are certain essential facts proving that rebellion still persists in the whole of Mindanao and that public safety requires the continuation of Martial Law, among others: (a) the Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups collectively labeled as LTGs which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law that at least four (4) bombing incidents had been cited in the AFP report: (1) the Lamitan City bombing on July 31, 2018 that killed eleven (11) individuals and wounded ten (10) others; (2) the Isulan, Sultan Kudarat improvised explosive device (IED) explosion on August 28 and September 2, 2018 that killed five (5) individuals and wounded forty-five (45) others; and (3) the Barangay Apopong IED explosion that left eight (8) individuals wounded; (b) the DI forces also continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities and continuing to recruit new members especially in vulnerable Muslim communities; and (c) the CTG, which publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with communist rule which posed serious security concerns;As I have discussed in my Separate Concurring Opinion in Representatives Edcel C. Lagman, et al. v. Senate President Aquilino Pimentel III, et al., G.R. Nos. 235935, 236061, 236145, and 236155 (Lagman v. Pimentel III),5 in cases involving the examination of a martial law extension, the Court's task is to determine whether or not there is sufficient factual basis to show that: (a) the invasion or rebellion still persists; and (b) public safety requires the extension.6 Pursuant to Section 18, Article VII of the 1987 Constitution,7 these two (2) requirements ought to be satisfied by Congress before it may properly decree another martial law extension.
WHEREAS, the President also reported that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations and arson attacks occurred in Mindanao, killing eighty-seven (87) military personnel and wounding four hundred eight (408) others and causing One hundred fifty-six million pesos (P156,000,000.00) worth of property damages;
WHEREAS, the Senate and the House of Representatives are one in the belief that the security assessment submitted by the AFP and the PNP to the President indubitably confirms the continuing rebellion in Mindanao which compels further extension of the implementation of Martial Law and the suspension of the privilege of the writ of habeas corpus for a period of one (1) year, from January 1, 2019 to December 31, 2019, to enable the AFP, the PNP, and all other law enforcement agencies, to finally put an end to the ongoing rebellion and to continue to prevent the same from escalating in other parts of the country;
x x x x
Resolved by the Senate and the House of Representatives in a Joint Session assembled, To further extend Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for another period of one (1) year from January 1, 2019 to December 31, 2019.
a. No less than 181 persons in the martial law Arrest Orders have remained at large;Petitioners failed to disprove the occurrence of the foregoing circumstances and events. On the other hand, the intelligence reports clearly demonstrate the continuing threat to public safety. There also appears to be no patent unreasonableness in the amount of time requested for the extension to meet the public safety concerns wrought by the rebellion. As I mentioned in my opinion in Lagman v. Pimentel III, "if the President's estimation does not appear to be implausible or farfetched, then this Court should defer to his plan of action, especially so since Congress has further given its assent."26
b. Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less than 2 months is a testament on how lethal and ingenious terrorist attacks have become.
x x x x
d. The DI continues to conduct radicalization activities in vulnerable Muslim communities and recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in these areas immensely disrupted the government's delivery of basic services and clearly needs military intervention.
e. Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their express kidnappings. As of December 6, 2018, there are still seven (7) remaining kidnap victims under captivity.
f. Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of communist rebel insurgency in the country. Eight (8) out of the 14 active provinces in terms of communist rebel insurgency are in Mindanao.
g. The Communist Terrorist Rebel Group in Mindanao continues its hostile activities while conducting its organization, consolidation and recruitment. In fact, from January to November 2018, the number of Ideological Political and Organizational (IPO) efforts of this group amounted to 1,420, which indicates their continuing recruitment of new members. Moreover, it is in Mindanao where the most violent incidents initiated by this group transpire. Particularly, government security forces and business establishments are being subjected to harassment, arson and liquidations when they defy their extortion demands.
h. The [Communist Terrorist Rebel Group's] exploitation of indigenous people is so rampant that Lumad schools are being used as recruiting and training grounds for their armed rebellion and anti-government propaganda. On November 28, 2018, Satur Ocampo and 18 others were intercepted by the Talaingod PNP checkpoint in Davao del Norte for unlawfully taking into custody 14 minors who are students of a learning school in Sitio Dulyan, Palma Gil in Talaingod town. Cases were filed against Ocampo's camp for violations of Republic Act (R.A.) No. 10364, in relation to R.A. No. 7610, as well as violation of Article 270 of the Revised Penal Code (RPC), due to the [PNP's] reasonable belief that the school is being used to manipulate the minds of the students' rebellious ideas against the government.25
Endnotes:
1 There are four (4) petitions filed assailing the martial law extension. The Petition in G.R. No. 243522 was filed on January 4, 2019 (an Amended Petition was filed on January 17, 2019), while the Petition in G.R. No. 243677 was filed on January 16, 2019. The Petition in G.R. No. 243745 was filed on January 18, 2019, while the Petition in G.R. No. 243797 was filed on January 23, 2019.
2 Entitled "RESOLUTION OF BOTH HOUSES FURTHER EXTENDING PROCLAMATION NO. 216, SERIES OF 2017, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO' FOR ANOTHER PERIOD OF ONE (1) YEAR FROM JANUARY 1, 2019 TO DECEMBER 31, 2019."
3 See Annex "B" of Petition in Lagman; rollo (G.R. No. 243522), Vol. I, pp. 56-58.
4 Issued on May 23, 2017.
5 See Decision in Lagman v. Pimentel III, G.R. Nos. 235935, 236061, 236145, and 236155, February 6, 2018. The motion for reconsideration is still pending consideration by the Court.
6 See my Separate Concurring Opinion in Lagman v. Pimentel III, id.
7 Section 18. x x x.
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.
x x x x (Emphases and underscoring supplied)
8 See my Separate Opinion in Lagman, v. Medialdea, G.R. Nos. 231658, 231771, and 231774, July 4, 2017, 829 SCRA 1; and my Separate Concurring Opinion in Lagman v. Pimentel III, supra note 5.
9Lagman v. Pimentel III, id.; emphases supplied. See also Lagman v. Medialdea, id. at 470-471.
10 See letter dated December 6, 2018; Annex A of the Petition of Lagman; rollo (G.R. No. 243522), Vol. I, p. 51-55.
11 See Implementation of Martial Law in Mindanao Monthly Reports 2018 for the period from September 1 to 30, 2018.
12 See Respondent's Memorandum dated February 4, 2019; rollo (G.R. No. 243522), Vol. II, p. 833.
13 See Implementation of Martial Law in Mindanao Monthly Reports 2018.
14 See Letter of the Armed Forces of the Philippines to the President attached to the cover letter of the Department of National Defense, dated December 4, 2018; Annex "1" of the Comment to the Petitions; rollo (G.R. No. 243522), Vol. I, pp. 201-202.
15 Oral Arguments, TSN, January 22, 2019, p. 16.
16 See my Separate Concurring Opinion in Lagman v. Pimentel III, supra note 5.
17 See id.; emphasis supplied.
18 See Opinion of Associate Justice Alfredo Benjamin S. Caguioa (Justice Caguioa).
19 See Respondents' Memorandum dated February 4, 2019; rollo (G.R. No. 243522), Vol. II, p. 838.
20 Id. at 838-839.
21 See my Separate Concurring Opinion in Lagman v. Pimentel III, supra note 5.
22 See my Separate Opinion Lagman v. Medialdea, supra note 8, at 455.
23 See my Separate Concurring Opinion in Lagman v. Pimentel III, supra note 5.
24 See Opinion of Justice Caguioa.
25 See Respondent's Memorandum dated February 4, 2019; rollo (G.R. No. 243522), Vol. II, pp. 832-833.
26 See my Separate Concurring Opinion in Lagman v. Pimentel III, supra note 5.
LEONEN, J.:
I dissent.
I continue to reiterate the points that I have already raised in my dissents in Padilla et al. v. Congress,2Lagman, et al. v. Medialdea, et al.,3 and Lagman, et al. v. Pimentel III, et al.4 This is the third one-year extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus over the entire Mindanao.
I cannot join the majority's increasing judicial appeasement of the President's unconstitutional exercise of his commander-in-chief powers. Allowing this new extension amounts to an abdication of this Court's duty enshrined in the Constitution. With this fourth accommodation, we have become an enfeebled Supreme Court, far from what our fundamental law requires of us when the President exercises his commander-in-chief powers. What the majority has done disappoints a better reading of history. It all but removes the constitutional protections against the rise of another authoritarian.
The declaration of martial law and the suspension of the privilege of the writ of habeas corpus are not simple law enforcement measures. They are intended to be used only under the most exigent circumstances where the State's existence already drifts between life and death. The imminence of such a possibility must be clear, and should be the product of reasonable inferences from facts which are clear, proven, consistent, and not contradictoiy. They are not to be exercised for any kind of rebellion except that which is close to or at the verge of success. Anything less should be constitutionally addressed with law enforcement or by the President's power to call out the armed forces.
The declaration of martial law and the suspension of the privilege of the writ of habeas corpus are not intended to be psychological measures to impose fear on our citizens. They are no substitute for effective, efficient, and professional police action.
These powers of the commander-in-chief are constitutional options of last resort as they undermine the balance of democratic deliberation and pragmatic action embedded in our fundamental law. They are meant as temporary measures which will expire with clear achievable goals. Their necessity must be demonstrable. The kinds of powers to be exercised should be transparent and legible.
I do not see Proclamation No. 216 and all of its extensions as having passed the stringent requirements in our fundamental law.
The DIWM DAESH-inspired group continues to offer armed resistance in Marawi City and other parts of Western and Central Mindanao. Parts of Marawi City, comprising around four (4) barangays, are still under the control of the rebels. The city's commercial districts, where about 800 structures are located, are found within these areas. The rebels have likewise holed up in mosques, madrasahs, and hospitals, thereby restricting the government troops' offensive movements, as they have to consider the safety of civilian hostages and trapped residents nearby.On July 22, 2017, in a special joint session, the Senate and the House of Representatives adopted Resolution of Both Houses No. 219 extending the Proclamation to December 31, 2017.
The DIWM DAESH-inspired group's leadership largely remains intact despite the considerable decline in the number of rebels fighting in the main battle area. Moreover, terrorist groups from various parts of Mindanao espousing or sympathizing with the same ideology remain active and are ready to reinforce Isnilon Hapilon's group or launch diversionary attacks and similar uprisings elsewhere. Key leaders of the rebellion, namely, Hapilon, the Maute brothers Abdullah, Omarkhayam, and Abdulasiz alias Madie, and foreign terrorist Mahmud bin Ahmad remain at large. Despite the arrest of key personalities like Ominta Maute, support structures have been continuously sustained, with the emergence of such new replacements as Adel Sarip Maute alias Monai, who was recently apprehended in Taguig City, Metro Manila.
Of the two hundred seventy-nine (279) personalities identified and ordered to be arrested by the Martial Law Administrator under Arrest Order Nos. 1 and 2 dated 29 May 2017 and 05 June 2017, respectively, only twelve (12) have been either neutralized or arrested. The AFP is further set to recommend the issuance of another arrest order for some two hundred (200) other individuals. There are also indications that the DIWM rebels are vigorously recruiting from other lawless armed groups, terrorist elements, and their families and supporters, to add to their ranks and replace those who have been killed or arrested.
The rebels have been found to possess high-powered and military-grade weapons such as rocket-propelled grenades and a large supply of ammunition. There have been reported entries of reinforcements, weapons, ammunitions, and other logistical supplies from outside Marawi City through clandestine routes. Private armed groups and supporters of some sympathetic local politicians are likely to continue extending their assistance.
Other Islamic State-inclined armed groups (i.e., ASG, AKP, and BIFF), which are capable of perpetrating atrocities and violent attacks against vulnerable targets, remain scattered in various areas in Mindanao. Several reports consistently indicate that these local terrorist groups are pursuing offensive actions and conspiring to attain their overall objective of establishing a wilayat or caliphate in Mindanao. Significantly, videos recovered from a safehouse previously occupied by DIWM rebels validate their intention to establish a wilayat in Marawi City and other areas of Mindanao through simultaneous armed public uprisings against the duly constituted authorities therein.18 (Emphasis in the original, citation omitted)
To establish that the factual basis for the extension of martial law is sufficient, the government has to show evidence for its factual allegations as well as the context for its inference. An enumeration of violent incidents containing nothing but the area of the incident, the type of violent incident, and the date of the incident, without its sources and the basis for its inference, does not meet the sufficiency of the factual basis to show persisting rebellion and the level of threat to public safety that will support a declaration of martial law or the suspension of the writ of habeas corpus.Congress' approval of the second extension was not proven to have been based on sufficient factual basis, as its members were not provided with the same intelligence information to which the President had access. More importantly, its members were not informed of the context of the provided raw data from which they could logically assess if an extension was indeed warranted. They were also not apprised of how the Armed Forces vetted the information they received.
There are two (2) facta probanda, or ultimate facts, necessary to establish that martial law was properly extended, namely: (1) the persistence of an actual rebellion; and (2) that public safety requires the extension of martial law.
Of course, no single piece of evidence can establish these ultimate facts. There must be an attempt to establish them through evidentiary facts, which must, in turn, be proved by evidence—not bare allegations, not suspicion, not conjecture.
Letters stating that rebellion persists and that public safety requires the extension of martial law do not prove the facta probanda. The letters only prove that the writers thereof wrote that rebellion persists and public safety requires the extension of martial law. Lists of violent incidents do not prove the facta probanda; they only tend to prove the factum probans that there were, in fact, violent incidents that occurred. But, assuming the evidence is credible to prove the factum probans that violent incidents have occurred, this factum probans, without context, is insufficient to show that rebellion persists.
We do not conflate the factum probandum with the factum probans. Muddling the two undermines the review required by the Constitution. It will lead this Court to simply accept the allegations of the government without any modicum of review.29 (Emphasis in the original)
In the 1970s, there was a Court which painfully morphed into a willing accomplice to the demise of fundamental rights through tortured readings of their clear constitutional mandate in order to accommodate a strongman. What followed was one of the darkest episodes in our history. Slowly but surely, soldiers lost their professionalism. Thousands lost their freedoms. Families suffered from involuntary disappearances, torture, and summary killings. Among them are some of the petitioners in this case.In his dissent in Lagman, et al. v. Pimentel III, et al., Associate Justice Francis H. Jardeleza (Associate Justice Jardeleza) stated that the government failed to prove that public safety still required martial law in Mindanao. He referred to two (2) "minimum indicators of scale"32 that would meet the public safety requirements for a declaration of martial law and suspension of the writ of habeas corpus. These are:
Regardless of the motives of the justices then, it was a Court that was complicit to the suffering [of] our people. It was a Court that degenerated into a willing pawn diminished by its fear of the impatience of a dictator.
The majority's decision in this case aligns us towards the same dangerous path. It erodes this Court's role as our society's legal conscience. It misleads our people that the solution to the problems of Mindanao can be solved principally with the determined use of force. It is a path to disempowerment.
Contrary to the text and spirit of the Constitution, the decision in this case provides the environment that enables the rise of an emboldened authoritarian.31
... (1) the presence of hostile groups engaged in actual and sustained armed hostilities with government forces; and (2) these groups have actually taken over, and are holding, territory...33 (Emphasis in the original)Associate Justice Jardeleza emphasized that despite the barrage of data presented by the government to substantiate its second extension, the evidence neither reached the "minimum reasonable indicators"34 nor rose to the same level of scale in Marawi City when the Proclamation was issued.
Respondents cannot rely on the capability of the remnants of the defeated rebels to deprive duly constituted authorities of their powers as a justification for the extension of the state of martial law or suspension of the privilege of the writ. To emphasize, capability to rebel, absent an actual rebellion or invasion, is not a ground to extend the declaration of martial law or suspension of the privilege of the writ. To allow martial law on the basis of an imminent danger or threat would unlawfully reinstate the ground of "imminent danger" of rebellion or invasion, a ground that was intentionally removed from the 1987 Constitution.35 (Emphasis in the original)On December 4, 2018,36 Secretary Lorenzana, emboldened by this Court's deferential but unconstitutional manner of review in the earlier cases, recommended a third extension of martial law and suspension of the privilege of the writ of habeas corpus until December 31, 2019. It was endorsed by the Department of National Defense and Chief of Staff of the Armed Forces.37 He also included various resolutions and requests for the martial law extension from the Provincial and Municipal Councils, Peace and Order Councils, and Chambers of Commerce and Industry from Mindanao.
Despite the gains made, Secretary Lorenzana revealed that various rebel groups in Mindanao continued their operations against both civilians and government forces. The supposed rebel operations included the four (4) bombing incidents that killed 16 people and injured 63 within two (2) months.39
- The neutralization of 688 members of the Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, and other Dl-affiliated groups, and the seizure of 448 firearms;
- The neutralization of 1,049 CNTs, and the seizure of 307 firearms;
- The conduct of 5,020 activities by the AFP with the assistance of CAFGU Active Auxiliary units (CAA) in coordination with other agencies to insulate and secure unaffected areas, critical infrastructure, and vital installations against operations of the rebel groups;
- The AFP supported anti-illegal drug operations of the Philippine Drug Enforcement Agency (PDEA) resulting in the neutralization of 239 drug personalities, and the seizure of 87 firearms and 814 sachets of illegal drugs[.]38
On December 6, 2018,41 President Duterte wrote both houses of Congress for a further extension of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao. He referred to Secretary Lorenzana's letter to substantiate his request, and reported the following gains in quelling rebellion:
- Put an end to the continuing rebellion of the DAESH-inspired groups and the threat posed by the CNT through a whole-of-government approach;
- Prevent the influx of foreign fighters, disrupt the local and international financial conduits, and neutralize the leadership of the rebel groups operating in Mindanao;
- Secure the conduct of the 2019 mid-term elections and the Bangsamoro Plebiscite and the possible implementation of the Bangsamoro Organic Law[.]40
I am pleased to inform the Congress that during the Martial Law period, as extended, in Mindanao, we have achieved significant progress in putting the rebellion under control, ushering in substantial economic gains in Mindanao. In a joint security assessment report, General Carlito G. Galvez Jr., the Armed Forces of the Philippines (AFP) Chief of Staff and Martial Law Implementor, and Director-General Oscar D. Albayalde, Chief of the Philippine National Police (PNP), highlighted the following accomplishments, among others, owing to the implementation of Martial Law in Mindanao: reduction of the capabilities of different terrorist groups, particularly the neutralization of 685 members of the local terrorist groups (LTG) and 1,073 members of the communist terrorist groups (CTG); dismantling of seven (7) guerilla fronts and weakening of nineteen (19) others; surrender of unprecedented number of loose firearms (more than eight thousand from January to November 2018); 19% reduction of atrocities committed by CTG in 2018 compared to those inflicted in 2017; 29% reduction of terrorist acts committed by LTG in 2018 compared to 2017; and substantial decrease in crime incidence (Cotabato City - 51% reduction and Maguindanao - 38% reduction). All of these gains in security and peace and order have resulted in remarkable economic gains in Mindanao. In fact, private sectors, local and regional peace and order councils, and local government units in Mindanao are now also clamoring for a further extension of the subject proclamation and suspension.42However, President Duterte wrote that despite the government's exceptional gains against rebellion in Mindanao, intelligence reports confirmed that rebellion persisted and public safety still needed the continued imposition of martial law:
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups (collectively labeled as LTG) which seek to proto global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law. At least four (4) bombings/ Improvised Explosive Device (IED) explosions had been cited in the AFP report. The Lamitan City bombing on 31 July 2018 that killed eleven (11) individuals and wounded ten (10) others, the Isulan, Sultan Kudarat IED explosion on 28 August and 02 September 2018 that killed five (5) individuals and wounded forty-five (45) others, and the Barangay Apopong IED explosion that left eight (8) individuals wounded.On December 12, 2018, the Congress, in a joint session, adopted Resolution of Both Houses No. 6,44 again extending the Proclamation from January 1, 2019 to December 31, 2019.
The DI forces continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim communities.
While the government was preoccupied in addressing the challenges posed by said groups, the CTG, which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule, took advantage and likewise posed serious security concerns. Records disclosed that at least three hundred forty-two (342) violent incidents, ranging from harassments against government installations, liquidation operations, and arson attacks as part of extortion schemes, which occurred mostly in Eastern Mindanao, had been perpetrated from 01 January 2018 to 30 November 2018. About twenty-three (23) arson incidents had been recorded and it had been estimated that the amount of the properties destroyed in Mindanao alone has reached One Hundred Fifty-Six (156) Million Pesos. On the part of the military, the atrocities resulted in the killing of eighty-seven (87) military personnel and wounding of four hundred eight (408) others.
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom activities to finance their operations. As of counting, there are a total of eight (8) kidnappings that have occurred involving a Dutch, a Vietnamese, two (2) Indonesians, and four (4) Filipinos.
The foregoing merely illustrates in general terms the continuing rebellion in Mindanao. I will be submitting a more detailed report on the subsisting rebellion in the next few days.43
ASSOCIATE JUSTICE CAGUIOA:Later on, Associate Justice Jardeleza coaxed from the Solicitor General a semblance of a target, and for the first time, a basis to determine whether the rebellion had been addressed enough so that public safety no longer requires a martial law extension:... Okay, my last question is this, is there a projected or estimated timeline when government forces will be able to put an end to the, what you say is a persisting rebellion in Mindanao, is there a timeline?MAJOR GENERAL LORENZO:We have targets in our campaign, targeting the different groups, Your Honor, so what I can say at this point is, it is dependent on the accomplishment or attainment of the target goals set in the different campaigns that we are implementing, Your Honor.ASSOCIATE JUSTICE CAGUIOA:Okay, at which point in time from your perspective can you say that rebellion would have been quelled? At which point in time when the last rebel is dead? At which point in time do we say rebellion is done, is no longer persisting? Just for me to understand from your point of view.MAJOR GENERAL LORENZO:Sir, given that question, what I could say is, it's not the killing of every single rebel out there when we can call, when we can say that rebellion no longer exist. Rather, it is the attainment of a level of security whereby the different threat groups can no longer impose their will or impose their will (sic) on the people or they are no longer effective as far as attaining their political objectives are concerned. So, we...ASSOCIATE JUSTICE CAGUIOA:So, until such...MAJOR GENERAL LORENZO:... we set certain parameters for this, Your Honor.ASSOCIATE JUSTICE CAGUIOA:So, until such time that that level of security is not attained, it is your position that rebellion continues, is that it?MAJOR GENERAL LORENZO:Yes, Your Honor.ASSOCIATE JUSTICE CAGUIOA:So, until such time that rebellion continues, martial law will continue?MAJOR GENERAL LORENZO:Not necessarily, Your Honor.ASSOCIATE JUSTICE CAGUIOA:But that is the, that was the endorsement of the Military to the President, correct?MAJOR GENERAL LORENZO:Yes, Your Honor.57
JUSTICE JARDELEZA:However, upon further interpellation, the Solicitor General admitted that this 30% target discussed with Associate Justice Jardeleza had only been developed that day. He further admitted that he could not "predict the future"59 when it came to the President's own targets for martial law:... The question I have, Mr. SolGen and the reason if you can, I can give you a time to confer with them. I would like you to look at the testimony of Secretary Lorenzana to the Congress, and I quote: "Kapag po nai-reduced iyan nang about 30% ng kanilang capability and they become law enforcement problems, then the police forces can take over without the military." Do you see it, Mr. SolGen? So I would like to give you time to show it to General Albayalde and Usec Yano. And when General Mendoza and Secretary Ano are back, I'm sorry, Madrigal are back, you can show it also to them and then I have a question which you can answer after you confer with them. Is it the position of the government that when the capability of the local and the communist terrorist groups are degraded by 30%, then you can already recommend to the President that martial law is over? You can confer with your clients, Mr. Solgen.CHIEF JUSTICE BERSAMIN:Undersecretary Yano?... There is an instruction or request for you to confer with the Solicitor General on the subject of that interpellation. You may join the Solicitor General.Secretary Año, you are I think needed to confer with the Solicitor General.Note:After several minutes.SOLICITOR GENERAL CALIDA:Your Honor, we have talked with our clients and I will ask one of them to answer your question, Your Honor.JUSTICE JARDELEZA:Yes, thank you, Mr. SolGen.GENERAL MADRIGAL:Your Honor, I'm General Benjamin Madrigal, Jr., the Chief of Staff of the Armed Forces of the Philippines. Regarding the statement of the Secretary, that basically, Your Honor, is the military definition of destruction of the enemy. When you attain 30% not only in terms of number of the regular forces but rather the 30%, you have reduced the enemy by 30% in terms of strength, firearms, the support system, for example the Barangay affectations as well as resources, Your Honor.JUSTICE JARDELEZA:So I think that's very interesting, General, in effect that is what I am asking, what is the science behind the 30% and I think, correct me, if I am correct, if I'm right, the capability of the enemies of the State is measured and I see it that's how you present it to Congress in terms of (1) manpower; that's why you have number of people; (2) firearms; (3) I think controlled barangays...GENERAL MADRIGAL:Yes, Your Honor.JUSTICE JARDELEZA:And no. (4) violent incidents?GENERAL MADRIGAL:Yes, Your Honor.JUSTICE JARDELEZA:So those four, which are in your data and as presented today and as presented to the Congress. The sum total is what you call capability?GENERAL MADRIGAL:Yes, Your Honor.JUSTICE JARDELEZA:And when you degrade the capability by 30% then...?GENERAL MADRIGAL:By 70%, meaning, the remaining part is 30%, Your Honor.JUSTICE JARDELEZA:If you degrade their capability by 70% and their strength is only 30%, what is the term? You have defeated them or what?GENERAL MADRIGAL:We call it that, that is, that it has been brought down to level of law enforcement, Your Honor.JUSTICE JARDELEZA:Which means General Albayalde...GENERAL MADRIGAL:Can take over...JUSTICE JARDELEZA:...and the DILG will take over?GENERAL MADRIGAL:They can take the lead, Your Honor.JUSTICE JARDELEZA:Now, but do you have an opinion on whether then martial law should be lifted because you don't need the military anymore?GENERAL MADRIGAL:We will gladly recommend the lifting of martial law if we attain that, Your Honor.JUSTICE JARDELEZA:Thank you.Can I have a second question to the SolGen? Again, may I ask the able staff of the SolGen to show to the SolGen Annex 1 of your, OSG Comment? I am referring to the undated letter of General Carlito G. Galvez, Jr. to the President... There is a portion there, Mr. SolGen where General Galvez says, and the beginning of the sentence is "The LTGs manpower and firepower have been reduced by...SOLICITOR GENERAL CALIDA:What number, Your Honor?JUSTICE JARDELEZA:I think ASG Rex can point it to you.SOLICITOR GENERAL CALIDA:This is no. 1, Your Honor, page 3.JUSTICE JARDELEZA:Yes, the sentence begins, Mr. SolGen "the LTGs manpower and firepower have been reduced by..." do you see that?SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:Can I complete now the sentence? It says, "the LTGs manpower, meaning the local terrorists groups, the LTGs manpower and firepower have been reduced by 62% and 45%, respectively." And the letter of General Galvez continues and, I quote: "On the other hand, the CTGs, meaning the communist terrorist groups, the NPAs, manpower and firepower have been reduced by 31% and 38%, respectively." Do you see that, Mr. SolGen?SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:So given that the science is supposed to be from the military point of view, degrading it by 70% in the case of the manpower of the LTGs, the degradation was 62%.SOLICITOR GENERAL CALIDA:Your Honor, I'd like to clarify when we were speaking about the 30%, Your Honor, statement of Secretary Lorenzana, I asked them, what is the baseline and what did 30%, when will you impose this? And they said, this year, Your Honor. If in this year they can reduce the capability to 30% this year, then they will recommend as you heard from the General, Your Honor.JUSTICE JARDELEZA:So, Mr. SolGen, the position we would like to know from the government and please cover it in the memo. If we can agree now, we are looking, the Court will be looking to you what is the baseline? We have to agree. If the baseline is January 1, 2019...?SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:If the baseline is January 1, 2019, that is the meaning of what the officers have testified today.SOLICITOR GENERAL CALIDA:That's correct, Your Honor.JUSTICE JARDELEZA:So, I do not know how the Court will decide. If the Court decides not to grant an extension, then that's the end of it. If the Court decides to grant an extension, we have agreed today that you will give us what is the baseline in terms of manpower, in terms of firearms, controlled barangays...SOLICITOR GENERAL CALIDA:Capability.JUSTICE JARDELEZA:...and violent incidents so that by the end of the year we will know how much progress has been made?SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:We have a deal, Mr. SolGen?SOLICITOR GENERAL CALIDA:Can we add capability, Your Honor, because that is what...?JUSTICE JARDELEZA:Well, what capability?SOLICITOR GENERAL CALIDA:...what Lorenzana said, Your Honor, capability.....
JUSTICE JARDELEZA:Well, because if you add, as what I'm saying now, as of today in your submission to the Congress and your slide today, you don't have a column called capability because as the resource person said and I thought as a layman, the military men testifying, capability is again the sum total of "gaano kadami ba 'yong kalaban, gaano 'yong firearms."SOLICITOR GENERAL CALIDA:And the support of the...JUSTICE JARDELEZA:How many barangays they control or...SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:...they influenced...SOLICITOR GENERAL CALIDA:Correct.JUSTICE JARDELEZA:The sum total of which is the capability to have violent incidents. So to me the four are already, or if you add the four equals capability.SOLICITOR GENERAL CALIDA:Okay, Your Honor. I agree.JUSTICE JARDELEZA:So we have a deal. That's the...SOLICITOR GENERAL CALIDA:Yes, Your Honor.JUSTICE JARDELEZA:...the definition of terms. Now, Mr. SolGen, I would like to congratulate you because earlier we had a session where you were there and the petitioners' counsels were there and I believed you were able to prevail on your clients to declassify or make public your report to the Congress and I really, I'm very happy that the SolGen is able to convince his clients. So again as I said I don't know whether the Court will extend the martial law.SOLICITOR GENERAL CALIDA:I hope it will, Your Honor.JUSTICE JARDELEZA:Well, when I mean for this case, but in the event that the Court does, I will urge again the government through you, through the SolGen, to keep following the practice of submitting reports to the Congress. Because now we have a baseline. I have my own views about capability but granting everything that the government has said, and I think what we have established today is a baseline. You give us the figures, January 1, 2019, manpower plus firearms plus controlled barangays plus violent incident equals capability. And I think you have done a great service to the country by saying the report of the military to the Congress is not classified so that the people will know on a month to month basis how much progress the military and the PNP are doing. And I really hope and pray that before December 2019, that the military and the police degrade by more than 70% so that the members of the Court do not have to meet again and have another petition. Thank you very much, Mr. SolGen.58
ASSOCIATE JUSTICE LEONEN:Although the Solicitor General had initially appeared to be willing to commit to a 30% degradation target and to explain the situation to the President, he ultimately admitted that he could not predict how the President would think in the future.I asked for the Solicitor General because I know that you are the most knowledgeable in your, with your side.SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:Okay. When did government arrive at the 30% target that you discussed with Justice Jardeleza?SOLICITOR GENERAL CALIDA:Actually, I just read it this afternoon, Your Honor.ASSOCIATE JUSTICE LEONEN:So, you just arrived at the goal of martial law 30% degrading only this afternoon?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:And you are now binding the Commander-in-Chief? In other words, you just discussed it here in caucus?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:And now you committed to Court a degradation of 70% as the goal of martial law?SOLICITOR GENERAL CALIDA:For this year, Your Honor.ASSOCIATE JUSTICE LEONEN:For this year?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:And this is the position of government, correct?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:Are you binding President Rodrigo Duterte, the Commander-in-Chief? Because I do not see him here and if you arrived at the target only now that means you are binding the President?SOLICITOR GENERAL CALIDA:I will explain to him what happened here and I will report to you, Your Honor.ASSOCIATE JUSTICE LEONEN:But I think you know the President more than I do, he has his own mind, is that not correct?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:He has his own goals, is that not correct?SOLICITOR GENERAL CALIDA:That's correct, Your Honor.ASSOCIATE JUSTICE LEONEN:And as far as all of you are concerned you are all alter egos, advisers to the President, is that not correct?SOLICITOR GENERAL CALIDA:That's correct, Your Honor.ASSOCIATE JUSTICE LEONEN:And therefore, you cannot commit to this Court 30%, correct?SOLICITOR GENERAL CALIDA:Yes, Your Honor, because it came from the military group, Your Honor.ASSOCIATE JUSTICE LEONEN:More importantly, this 30% was it discussed with Congress?SOLICITOR GENERAL CALIDA:I was not present there, Your Honor, so I have no idea.ASSOCIATE JUSTICE LEONEN:In other words, it was not, it was in one of the statements of Lorenzana, the Secretary. But Congress did not push and ask the resource speakers what was the goal of one year, is that not correct?SOLICITOR GENERAL CALIDA:That's correct, Your Honor.ASSOCIATE JUSTICE LEONEN:Yes. So it's possible to have an extension for 2020, is that not correct? Still possible?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:Perhaps even 2021, correct?SOLICITOR GENERAL CALIDA:That's possible, Your Honor.ASSOCIATE JUSTICE LEONEN:Perhaps 2022, correct?SOLICITOR GENERAL CALIDA:Hopefully, yes, Your Honor.ASSOCIATE JUSTICE LEONEN:So this is the new normal? That for the whole term of this President there will be martial law in Mindanao, is that not possible? Considering that the Communist Party has been resilient for 50 years. I was only six years old when they started, now I'm 56. Considering that violent extremism will exist in Mindanao in the next three years, considering that there will still be kidnapping, considering that there will still be rido and those are all in your reports. Therefore, are you now telling the Supreme Court that it is possible that the extensions will be not only three, will be four, five or six extensions?SOLICITOR GENERAL CALIDA:Well, it depends, Your Honor, if the policy of 30% degradation which will start this year, if we can attain it, why not, Your Honor.ASSOCIATE JUSTICE LEONEN:Yes, but it is not the goal of the Commander-in-Chief, correct? Not yet?SOLICITOR GENERAL CALIDA:Well, I cannot predict the future, Your Honor.60
The Anti-Terrorism Act which, when enacted, would no longer necessitate the proclamation of martial law and suspension of habeas corpus; this is the main argument that we presented to the Senate when we were there to defend martial law because we told them that the people now have no teeth... I told them, if they can pass it within half of this year, then I can recommend the cessation of martial law in Mindanao by July first.61Additionally, the Office of the Solicitor General admitted that the targets set during the oral arguments were essentially lip service. In its Memorandum, it said that it could not bind the President to its definition of when the rebellion would be quelled:
83. A plain reading of Section 18, Article VII of the Constitution shows that the President's power to determine the necessity for an extension of martial law is not subject to any condition except the requirements of actual invasion or rebellion and public safety. It would also be contrary to common sense if the decision of the President is to depend on the calculations of his alter ego. The President is not bound by the actions of his subalterns; the former is only bound by what the Constitution dictates. Ergo, an extension of martial law would still be valid even if the DND Secretary declares that the rebels' capabilities had been degraded by more than seventy percent.62 (Citation omitted)Curiously, figures on anti-illegal drug operations have repeatedly been cited in the government's letters and reports on martial law, as if the figures were targets in the proclamation and implementation of martial law. In his December 4, 2018 Letter to President Duterte, the Solicitor General said:
The operations conducted by the AFP in support of the implementation of martial law have resulted in gains in ending the DAES inspired and CNT rebellion in the country, including:Similarly, in his letter to President Duterte, General Carlito G. Galvez, Jr. cited the Armed Forces' support of anti-illegal drug operations as one of the outcomes of the martial law implementation in Mindanao. Likewise, all of the Armed Forces' monthly reports included figures that pertained to the dismantling of "illegal drug syndicates and other lawless armed groups,"64 reporting: (1) the volume of illegal drugs confiscated; and (2) the number of personalities who surrendered, were killed, or were captured.....
4. The AFP supported anti-illegal drug operations of the Philippine Drug Enforcement Agency (PDEA) resulting in the neutralization of 239 drug personalities, and the seizure of 87 firearms and 814 sachets of illegal drugs[.]63
Signals Intelligence (SIGINT) refers to the interception of communications between individuals and "electronic transmissions that can be collected by ships, planes, ground sites, or satellites."Respondents submitted numerous reports72 as basis for the third extension of martial law. These reports, according to respondents, are the consolidation of various intelligences and accounts of different field units and multiple sources within the government.73
Human Intelligence (HUMINT) refers to information collected from human sources either through witness interviews or clandestine operations.
By the term itself, Open-Source Intelligence (OSINT) refers to readily-accessible information within the public domain. Open-Source Intelligence sources include "traditional media, Internet forums and media, government publications, and professional or academic papers."
Newspapers and radio and television broadcasts are more specific examples of Open-Source Intelligence sources from which intelligence analysts may collect data.
Geospatial Intelligence (GEOINT) pertains to imagery of activities on earth. An example of geospatial intelligence is a "satellite photo of a foreign military base with topography[.]"
Lastly, Measures and Signatures Intelligence (MASINT) refers to "scientific and highly technical intelligence obtained by identifying and analyzing environmental byproducts of developments of interests, such as weapons tests." Measures and Signatures Intelligence has been helpful in "identify[ing] chemical weapons and pinpoint[ing] the specific features of unknown weapons systems."71 (Citations omitted)
ASSOCIATE JUSTICE CAGUIOA:Despite the opportunity to expound in their Memorandum the authentication process the reports had gone through, respondents repeatedly failed to provide a satisfactory explanation. They merely stated that the information in the reports came from various Armed Forces units obtained through formal channels76 and informants who are members of the threat groups.77Alright. Let me begin my small questions. I noticed, that in the Annexes that you submitted at the lower right hand portion there is a stamp that says "authenticated by" and there is a signature over the name, if I can read the name, SMS Dionisio B. Medilo PAF, NCOIC, ATD, 0.12. Can you tell us who this person is?MAJOR GENERAL LORENZO:Yes, Your Honor. He is the enlisted personnel assigned to our office.ASSOCIATE JUSTICE CAGUIOA:And can you tell us what his functions are?MAJOR GENERAL LORENZO:He is assigned with the Anti-Terrorist Division of the OJ2. He receives reports, assists in the research and intelligence reports relative to the counter-terrorism efforts of the Armed Forces of the Philippines, Your Honor.ASSOCIATE JUSTICE CAGUIOA:He is based in Mindanao?MAJOR GENERAL LORENZO?He is based in Manila.....
ASSOCIATE JUSTICE CAGUIOA:Thank you. Now, going back to the person who authenticated these reports, can you tell us the process? What is the process that 0J2 follows in authenticating reports, in vetting intel? Can you tell us how that process goes?MAJOR GENERAL LORENZO:May I be clarified on the question, Your Honor?ASSOCIATE JUSTICE CAGUIOA:In the preparation of these Tables, I'm sure there is a vetting process, there is an authentication process as explained by the phrase "authenticated by." I just want to know what is the process involved in the process of authentication.MAJOR GENERAL LORENZO:Normally, Sir, as we received reports, for intelligence processing, Sir, there is the so-called intelligence cycle. So as we received reports, that is the submission of reports to us, that is already, shall I say, collected information goes through different stages of processing We collate, integrate and bring in other information that are related to it. We also evaluate the source of the report whether in terms of reliability, the accuracy of the information until we come out with more refined or more accurate intelligence that is for the intelligence cycle... (interrupted)....
ASSOCIATE JUSTICE CAGUIOA:Let me cut you. When Medilo says "he authenticates these Tables," what exactly is he saying?MAJOR GENERAL LORENZO:Your Honor, if you are referring to authentication of documents as to authenticity of what we are receiving, he will just look at the original file and a reproduction of what would be authenticated by usually officers under us. We have admin officers to authenticate documents... (interrupted)....
ASSOCIATE JUSTICE CAGUIOA:So just to be clear there are more raw information coming in, they all come together. You do a screening, check the sources, and then, you make your conclusions and all of that is in a report and Mr. Medilo simply collates and compiles these reports. Is that correct?MAJOR GENERAL LORENZO:Yes, Your Honor.74....
ASSOCIATE JUSTICE GESMUNDO:So, just to be clarified, when you mentioned authenticated by SMS Medillo, what do you mean by that? Does he verified it, each incident report from an index or what?GEN. LORENZO:Yes, Your Honor, because it's a faithful reproduction of what's already on file.ASSOCIATE JUSTICE GESMUNDO:Because you want the Court to rely on this report as the factual basis for the prayer for the extension of martial law, we want to be assured that this is authenticated, you may have the presumption of regularity but we want to know the authenticity and veracity of these incident reports.GEN. LORENZO:Sorry, Your Honor, those reports came from the chain of command, Your Honor, the... (interrupted)ASSOCIATE JUSTICE GESMUNDO:Can you put that in your memorandum also, how this report was processed?GEN. LORENZO:We will do that, Your Honor.ASSOCIATE JUSTICE GESMUNDO:Thank you very much.75
ASSOCIATE JUSTICE LEONEN:Contrary to respondents'justification, including kidnapping incidents and family feuds in the intelligence reports are not clerical errors. Their insertion means that these acts were committed to further the objectives of rebellion. By doing so, the government is duty bound to give details as to why they were included.Okay. All intelligence reports and conclusions are validated, is that not correct?SOLICITOR GENERAL CALIDA:According to the military, Yes, Your Honor.ASSOCIATE JUSTICE LEONEN:When presented to the Commander-in-Chief, it is validated especially, is that not correct? Because he's the Commander-in-Chief he has to act with very specific validated information, is that not correct?SOLICITOR GENERAL CALIDA:Well, I have no personal knowledge on that, Your Honor, but I trust our military, Your Honor.ASSOCIATE JUSTICE LEONEN:Yes, and when it is presented to Congress on a matter as significant as martial law, it is likewise validated, is that not correct?SOLICITOR GENERAL CALIDA:It should be validated, Your Honor.ASSOCIATE JUSTICE LEONEN:Yes. Now, how do you explain the inconsistencies, the incomplete statements, the inclusion of rido and kidnapping in the report that was just submitted to the highest court of the land to support the extension of martial law?SOLICITOR GENERAL CALIDA:I think, Your Honor, that was corrected by them, maybe there were some clerical errors.ASSOCIATE JUSTICE LEONEN:It was not clerical errors.SOLICITOR GENERAL CALIDA:To err is human, Your Honor.98
In February 2018, the Armed Forces reported103 additional 42 neutralized terrorist group members and 31 firearms recovered:
Objective Measure of Performance TOTAL Terrorist Groups destroyedNr of neutralized terrorist group members 31• Killed 19• Captured/Apprehended 1• Surrendered 11Nr of firearms recovered 36• High-powered 19• Low-powered 17
In March 2018, 95 terrorist group members were reported104 to have been neutralized and 32 firearms recovered. This would have amounted to 168 neutralized terrorist group members and 99 seized firearms, but reported as follows:
Objective Measure of Performance TOTAL
(01-28 Feb 18) TOTAL
(01 Jan-to date) Terrorist Groups destroyedNr of neutralized terrorist group members 42 73Killed 20 39Captured/Apprehended 6 7Surrendered 16 27Nr of firearms recovered 31 67High-powered 18 37Low-powered 13 30
Respondents failed to submit to this Court a copy of the report for April.
Objective Measure of Performance Inclusive Date
(Mar 1-31, '18) TOTAL
(Jan 1 -Mar 31, '18) Terrorist Groups destroyedNr of neutralized terrorist group members 95 187Killed 58 98Captured/Apprehended 6 25Surrendered 31 64Nr of firearms recovered 32 97High-powered 28 95Low-powered 4 2
For the month of June 2018, they reported106 additional neutralized 66 terrorists and 36 seized firearms which should have resulted to 378 neutralized terrorist group members and 277 firearms recovered. However, the number as reported was lower than what it should have been without furnishing any explanation.
Objective Measure of Performance Inclusive Date
(May 1-31, '18) TOTAL
(Jan 1-May 31, '18) Terrorist Groups destroyedNr of neutralized terrorist group members 93 312Killed 11 117Captured/Apprehended 41 66Surrendered 41 129Nr of firearms recovered High-powered 69 208Low-powered 14 33
Similar irregularities are scattered among the different monthly reports submitted by the Armed Forces. They belie any assertion that the monthly reports are consistent with the data they represent—the raison d'etre of martial law in Mindanao.
Objective Measure of Performance Inclusive Date
(June 1-30, '18) TOTAL
(Jan 1-June 30, '18) Terrorist Groups destroyedNr of neutralized terrorist group members 66 301Killed 34 128Captured/Apprehended 11 28Surrendered 21 145Nr of firearms recovered 36 235High-powered 30 206Low-powered 6 29
While the government was preoccupied in addressing the challenges posed by said groups, the CTG which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule, took advantage and likewise posed serious security concerns[.]108However, in his letter-report on the martial law implementation, Armed Forces Chief of Staff Benjamin R. Madrigal, Jr. stated that the Armed Forces had claimed a total of 1,620 CPP-NPA members had been neutralized. Specifically, 62 had been killed, 189 had been captured, and 1,369 surrendered.109
JUSTICE LEONEN:A perusal of respondents' justification for a further extension of martial law leads to a single conclusion: there is absolutely no necessity for martial law.Would you agree with me that in Section 18 of Article VII, the requirement for a declaration of martial law or the suspension of a writ of habeas corpus is not only that rebellion exists but there is a certain degree of rebellion that requires the exigency of martial law, is that not correct?ATTY. DIOKNO:Yes, Your Honor, and that rebellion is ongoing.JUSTICE LEONEN:Yes, prior to the declaration of martial law, if it is only lawless violence that happens or aggrupation of lawless violence that the military is not prohibited from calling out the Armed Forces, is that not correct?ATTY. DIOKNO:That is true, Your Honor.JUSTICE LEONEN:And would you agree with me that the degree of judicial review or the scrutiny that is involved when the President, as Commander-in-Chief, calls out the Armed Forces is less than when he declares martial law?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Okay, battle of hearts and minds, I heard it so often. Do you recall where it came from?ATTY. DIOKNO:I don't see, I think that it came from.... (interrupted)JUSTICE LEONEN:In Vietnam by a certain Colonel Lansdale when he inaugurated the concept of anti-insurgency and tested it using an occupying force because they were losing the war against the Vietcong, am I not correct?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Now, this requires that winning hearts and minds is not only done by the military, that was the mistake in Vietnam, correct?ATTY. DIOKNO:Yes.JUSTICE LEONEN:That it requires the cooperation of the military and the civilian authority, is that not correct?ATTY. DIOKNO:That's true.JUSTICE LEONEN:Yes, as a matter of fact, several military plans, I think this was under AFP General Ano, AFP General Bautista, among others, created the concept of Balikatan or "Whole-of-nation" approach where it was recognized that winning the war will not only take the military but will also take civilian authority, is that not correct?ATTY. DIOKNO:I think it's obvious that military action alone will not be sufficient, Your Honor.JUSTICE LEONEN:Yes, by a protracted declaration of martial law which means the military rules regardless of whether or not it is benign, there is an implicit message that local governments cannot do it, is that not correct?ATTY. DIOKNO:That is the case, yes.JUSTICE LEONEN:And the danger there is recognized by our Constitution because, therefore, it said that martial law is only exigent and contingent, is that not correct?ATTY. DIOKNO:I think it's clear, Your Honor, that the martial law is really intended to be a temporary to address an emergency.JUSTICE LEONEN:And to win against one thousand six hundred (1600) communists and five hundred seventy-five (575), I will not even say Muslim, I will say Salalls, I will say violent extremists, will take not only the might of the military no matter how professional they are, but good governance, is that not correct?ATTY. DIOKNO:That is so true, Your Honor, no.... (interrupted)JUSTICE LEONEN:And martial law is antithetical to good governance, is that not correct?ATTY. DIOKNO:That is the case, Your Honor.JUSTICE LEONEN:Because we do not give an opportunity to civilian authorities to catch up, is that not correct?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Okay, may I ask you, can checkpoints be set up without martial law?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Can busses be searched without martial law?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Saluday vs. People under the ponentia of Justice Carpio, unanimous Court said it can, very recently, 2018 only. Can the attendance of LGUs be checked without martial law?ATTY. DIOKNO:Of course, yes, Your Honor.JUSTICE LEONEN:In fact, will they, will the local governments in the ARMM be more fearful and attend to their duties if it is ordered by the President himself rather than simply the military?ATTY. DIOKNO:Yes, I believe so.JUSTICE LEONEN:Who is more feared, the president or the military?ATTY. DIOKNO:(Chuckles) I'm not sure, Your Honor.JUSTICE LEONEN:Well, I guess people will say the Commander-in-Chief is more powerful than the military. So, what we need really is a serious program to counter violent extremism, as well as a serious program to build good governance rather than martial law, is that not correct?ATTY. DIOKNO:That is true, Your Honor.JUSTICE LEONEN:Because no matter the numbers of fighting forces and firearms, it will always recur if the root causes are not addressed, is that not correct?ATTY. DIOKNO:That is correct.114
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.116 (Citations omitted)At the time of Barcelon, there was no constitutional provision on martial law to interpret, much less any constitutional provision authorizing this Court to review any government act in relation to its declaration.
(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.Thus, the first relevant constitutional provision authorized the president to declare martial law, but did not expressly authorize this Court to review his or her exercise of this power.
To the petitioner's unpracticed eye the repeated encounters between dissident elements and military troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security, analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general scheme to overthrow this government vi et armis, by force and arms.However, almost 19 years later, this Court unanimously reversed this deferential policy in In the Matter of the Petition for Habeas Corpus of Lansang v. Garcia.119
And we agree with the Solicitor General that in 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 whether the exigency has arisen requiring suspension belongs to the President and "his decision is final and conclusive" upon the courts and upon all other persons.
Indeed as Justice Johnson said in that decision, whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery cannot be in better position to ascertain or evaluate the conditions prevailing in the Archipelago.118 (Emphasis supplied)
[T]he 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.This Court further ruled that the separation of powers under the Constitution is not absolute. The system of checks and balances recognizes the executive department's supremacy on the suspension of the privilege of the writ of habeas corpus only when it is exercised within certain discretionary limits. Determining whether the executive department has acted within the ambit of its discretion is vested with the judicial department, where it is constitutionally supreme.121
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.120 (Emphasis in the original, citation omitted)
SECTION 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 thereof under martial law.Almost a decade after, this Court, in In the Issuance of the Writ of Habeas Corpus for Parong, et al. v. Enrile,123 reiterated the doctrine of political question in Baker and Montenegro. It decreed:
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.Notably, barely six (6) days after the promulgation of In Parong, et al., this Court, in In the Matter of the Petition for Habeas Corpus of Morales, Jr. v. Enrile125 reverted to the ruling of justiciability as pronounced in In Re: Lansang. In that case, it ruled that the issue of the sufficiency of the factual bases the president relied on in suspending the privilege of the writ of habeas corpus raises a justiciable, rather than a political, question. It further decreed that this Court "must inquire into every phase and aspect of petitioner's detention ... up to the moment the court passes upon the merits of the petition"126 to ensure that the due process clause of the Constitution had not been violated.
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. Castaneda.124 (Citations omitted)
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.In David v. Senate Electoral Tribunal,128 this Court stressed that legal provisions are the result of the re-adoption or re-calibration of previously existing rules. More often than not, these recalibrated legal provisions are introduced to address and cure the shortcomings and inadequacies of the previous rules:
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.
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 historical developments that led to the advent of the 1987 Constitution show its framers' unmistakable intent to expand the power of this Court to review and check on possible abuses committed by the executive department in the exercise of its powers. As it stands, the 1987 Constitution mandates this Court to review and assess the factual bases relied upon by the President in declaring martial law.130 The political question doctrine has steadily diminished.
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.129
Endnotes:
1 Dare to know. Alternatively, dare to think for yourself. Immanuel Kant, An Answer to the Question:
What is enlightenment (1784).
2 G.R. Nos. 231671 and 231694, July 25, 2017, 832 SCRA 282 [Per J. Leonardo-De Castro, En Banc].
3 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1 [Per J. Del Castillo, En Banc].
4 G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, [Per J. Tijam, En Banc].
5Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 132 [Per J. Del Castillo, En Banc].
6 Resolution Expressing the Sense Of The Senate, Supporting Proclamation No. 216 Dated May 23, 2017, Entitled 'Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao' and Finding No Cause to Revoke the Same available at https://www.senate.gov.ph/lisdata/2613422471!.pdf. Accessed February 15, 2019.
7 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" available at http://www.congress.gov.ph/legisdocs/basic_17/HR01050.pdf. Accessed February 15, 2019.
8Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1 [Per J. Del Castillo, En Banc].
9 Id. at 194.
10 Id. at 184.
11 J. Leonen, Dissenting Opinion in Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, 829 SCRA 1, 490 [Per J. Del Castillo, En Banc].
12 Id. at 602.
13 Id. at 304.
14 Id. at 308.
15 Id. at 659.
16 Mara Cepeda, READ: Duterte's letter to Congress asking for martial law extension, RAPPLER, July 19 2017, <https://www.rappler.com/nation/176084-document-duterte-letter-congress-martial-law-extension> [Accessed on February 15, 2019].
17 The other rebel groups mentioned were the Bangsamoro Islamic Freedom Fighters (BIFF), Abu Sayyaf Group (ASG) and New People's Army (NPA).
18 Letter of President Rodrigo Duterte to the Senate and the House of Representatives dated July 18, 2017 available at https://www.rappler.com/nation/176084-document-duterte-letter-congress-maitial-law-extension (last accessed on February 15, 2019).
19 Resolution of Both Houses Extending until 31 december 2017 Proclamation No. 216, Series of 2017, Entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" available at http://www.congress.gov.ph/legisdocs/second_17/RBH0011.pdf. Accessed February 15, 2019.
20TIMELINE: The Battle for Marawi, ABS-CBN NEWS, October 17, 2017, <https://news.abs-cbn.com/news/10/17/17/timeline-the-battle-for-marawi> (last accessed on February 15,2019).
21TIMELINE: The Battle for Marawi, ABS-CBN NEWS, October 17, 2017, <https://news.abs-cbn.com/news/10/17/17/timeline-the-battle-for-marawi> (last accessed on February 15, 2019).
22 Pia Ranada, Duterte asks Congress for 1-year martial law extension, RAPPLER, December 11, 2017, <https://www.rappler.com/nation/191015-duterte-asks-congress-one-year-martial-law-extension- mindanao> (last accessed on February 16, 2019).
23 Pia Ranada, Duterte asks Congress for 1-year martial law extension, RAPPLER, December 11, 2017, <https://www.rappler.com/nation/191015-duterte-asks-congress-one-year-martial-law-extension-mindanao> (last accessed on February 16, 2019).
24 J. Leonen, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, [Per J. Tijam, En Banc].
25 Resolution of Both Houses Further Extending Proclamation No. 216, Series of 2017, Entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" For a Period of One (1) Year from January 1, 2018 to December 31, 2018 available at http://www.congress.gov.ph/legisdocs/second_17/RBH0014.pdf. Accessed February 15, 2019].
26 G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, [Per J. Tijam, En Banc].
27 J. Leonen, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, 4 [Per J. Tijam, En Banc].
28 Id. at 3.
29 Id. at 41.
30 Id. at 47.
31 Id. at 75.
32 J. Jardeleza, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurispnidence/2018/february2018/235935.pdf> 17 [Per J. Tijam, En Banc].
33 Id.
34 Id. at 20.
35 J. Carpio, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061 236145 and 236155, February 9, 2018, 11 [Per J. Tijam, En Banc].
36Rollo (G.R. No. 243522), Vol. 1, pp. 201-202. Comment, Annex 1.
37 Id. at 208-213. Comment, Annex 2.
38 Id. at 201-202.
39 Id. at 201.
40 Id. at 202.
41 Petition (G.R. No. 243522), pp. 51-55. Annex A.
42 Id. at 52-53.
43 Id. at 53-54. Annex A.
44 Id. at 56-58. Annex B.
45 The petitioners were Representatives Edcel C. Lagman et al. v. Hon. Salvador C. Medialdea, Executive Secretary et al. (G.R. No. 243522), Bayan Muna Partylist Representative Carlos Isagani T. Zarate et al. v. President Rodrigo Duterte et al. (G.R. No. 243677), Christian S. Monsod et al. v. Senate of the Philippines (Represented by Senate President Vicente Sotto III) et al. (G.R. No. 243745), and Rius Valle et al. v. The Senate of the Philippines, represented by the Senate President Vicente C. Sotto III et al. (G.R. No. 243797).
46 Memorandum (G.R. No. 243797), pp. 80-82.
47 Implementing Proclamation No. 216 Dated 23 May 27, available at http://www.officialgazette.gov.ph/downloads/2017/05may/20170530-GO-l-RRD.pdf. Accessed February 17, 2019.
48 J. Leonen, Dissenting Opinion in Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, 829 SCRA 1, 492-493 [Per J. Del Castillo, En Banc].
49 Id. at 493.
50 Id.
51 General Order No. 1 (2017), sec. 6.
52 General Order No. 1 (2017), sec. 6.
53Rollo (G.R. No. 243522), Vol. 2, pp. 826-827. OSG Memorandum.
54 Id. at 826.
55 Ponencia, p. 19.
56See J. Leonen, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, [Per J. Tijam, En Banc].
57 TSN dated January 29, 2019, pp. 40-41.
58 TSN dated January 29, 2019, pp. 51-59.
59 TSN dated January 29, 2019, p. 70.
60 TSN dated January 29, 2019, pp. 66-70.
61 Delfin N. Lorenzana, The National Security Outlook in the Philippines in 2019 (Proposed Remarks for the Secretary of National Defense, February 4, 2019).
62Rollo (G.R. No. 243522), Vol. 2, p. 834.
63Rollo (G.R. No. 243522), Vol. 1, pp. 201-202.
64Rollo (G.R. No. 243522), Vol. 1, p. 205.
65 CONST., art. VII, sec. 18 partly provides:
SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. 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 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.
66 J. Leonen, Dissenting Opinion in Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, 829 SCRA 1, 489 (2017) [Per J. Del Castillo, En Banc].
67 Id.
68 Id. at 552.
69 Id.
70 Id. at 553.
71 Id. at 553-554.
72Rollo (GR. No. 243522), Vol. 1, pp. 214-292. Comment, Annexes 3-8.
73 Oral Arguments dated January 19, 2019.
74 TSN dated January 29,2019, pp. 24-28.
75 TSN dated January 29, 2019, p. 65.
76Rollo (G.R. No. 243522), Vol. 2, pp. 847-859. See Memorandum for Respondents, Annex 1. Reports of government agencies performing security and law enforcement functions.
77 Id. at 838.
78 Id.
79 Id.
80 Id.
81Rollo (GR. No. 243522), Vol. 1, p. 225.
82 Id.
83 Id. at 226.
84 Id. at 229.
85 Id. at 230.
86 Id. at 231. Spelling error in the original.
87 Id. at 233.
88 Id. at 243.
89 Id. at 244.
90 Id. at 245.
91Rollo (G.R. No. 243522), Vol. 2, pp. 863, 867, 868 and 869. Memorandum for Respondents, Annexes 2-C, 2-G, 2-H, and 2-I.
92Rollo (G.R. No. 243522), Vol. 1, pp. 51-55.
93Rollo (G.R. No. 243522), Vol. 1, p. 218.
94 Id. at 224. Spelling error in the original.
95 Id. at 227.
96 Id. at 235.
97 Id. at 272.
98 TSN dated January 29, 2019, pp. 70-71.
99Rollo (G.R. No. 243522), Vol. 1, p. 215. Comment, Annex 4.
100 Id. at 246. Comment, Annex 5.
101 Id. at 283. Comment, Annex 6.
102 Monthly Report, Annex A. For the month of January 2018.
103 AFP Monthly Report, Annex B. For the month of February 2018.
104 AFP Monthly Report, Annex D. For the month of March 2018.
105 AFP Monthly Report, Annex E. For the month of May 2018.
106 AFP Monthly Report, Annex F. For the month of June 2018.
107See J. Leonen, Dissenting Opinion in Lagman, et al. v. Pimentel III, et al., G.R. Nos. 235935, 236061, 236145 and 236155, February 9, 2018, [Per J. Tijam, En Banc].
108Rollo (G.R. No. 243522), Vol. 1, pp. 53-54. Annexes to the Petition.
109 Id. at 59-66. Annex C of the Corrected Monthly Reports.
110 TSN, pp. 82-83.
111 J. Leonen, Dissenting Opinion in Lagman, et al. v. Medialdea, et al., G.R. Nos. 23J658, 231771 and 231774, July 4, 2017, 829 SCRA 1 [Per J. Del Castillo, En Banc].
112 Id. at 35.
113 Const., Art. VII, Sec. 18 provides:
SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. 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 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.
....
114 TSN dated January 29, 2019, pp. 107-111.
115 5 Phil. 87 (1905) [Per J. Johnson, En Banc]
116 Id. at 107.
117 91 Phil. 882 (1952) [Per J. Bengzon, En Banc].
118 Id. at 886-887.
119 149 Phil. 547 (1971) [Per C.J. Concepcion, En Banc].
120 Id. at 585-586.
121 Id.
122 158-A Phil. 1 (1974) [Per C.J. Makalintal, En Banc].
123 206 Phil. 392 (1983) [Per J. De Castro, En Banc]. Also known as Garcia v. Padilla.
124 Id. at 431-432.
125 206 Phil. 466 (1983) [Per J. Concepcion, Jr., Second Division]
126 Id. at 496.
127 J. Leonen, Dissenting Opinion in Lagman, et al. v. Medialdea, et al., G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 510 [Per J. Del Castillo, En Banc].
128 795 Phil. 529 (2016) [Per J. Leonen, En Banc].
129 Id. at 572-573.
130 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 551 [Per J. Del Castillo, En Banc].
131 Ponencia, p. 22.
132 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1 [Per J. Del Castillo, En Banc].
133 Id. at 512.
JARDELEZA, J.:
Through Resolution of Both Houses No. 6 dated December 12, 2018, the Congress of the Philippines, in a Joint Session, by 235 affirmative votes comprising the majority of all its members, has voted to further extend Proclamation No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao," from January 1, 2019 to December 31, 2019. Once again, this Court's power under Section 18, Article VII of the Constitution is invoked to determine the sufficiency of the factual bases for yet another year's extension of martial law.
Similar to my position in Lagman v. Medialdea,1 which involved the constitutionality of the first extension of Proclamation No. 216, I do not dispute that a state of rebellion exists in Mindanao. However, I remain unconvinced that the Government has met the burden of the Constitution's public safety requirement as to support the continued extension of martial law and suspension of the privilege of the writ of habeas corpus. To me, the Government's own evidence shows that the scale of the rebellion which started in 2016, and continued into 2017, has been materially degraded in 2018, as a result of the success and bravery of the men and women of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP). As a result, I do not believe that there is sufficient factual basis to support any further extension of martial law in Mindanao. I thus vote to GRANT the petitions.
Furthermore, I submit this Opinion to reiterate my grave concerns over the Court's seeming abdication of its duty under Section 18, Article VII of the Constitution as a consequence of its adamant refusal to "substitute [its] own judgment"2 over that of the President or Congress. Respect for the President's assessment of the necessity of the declaration of martial law and/or suspension of the privilege of the writ of habeas corpus is not incompatible with the Court's faithful fulfillment of its duty to determine the sufficiency of the President's factual bases. Such "permissive deference" becomes all the more objectionable when presentation by the Government of its factual bases is allowed to be made in camera.
For purposes of the present petitions, the Government employed the same metrics and presented as evidence the following statistics21 for the year 2018:
Rebel/Terrorist Groups Manpower Firearms Controlled Barangays Violent IncidentsCommunist Rebels 1,748 2,123 426 422Dawlah Islamiyah 137 162 - 53BIFF 388 328 59 116ASG 508 598 52 44GRAND TOTAL 2,781 3,211 537 63520
Even the most cursory comparison of the 2017 and 2018 data would show that all five components of the AFP's capability metrics went down.
Rebel/Terrorist Groups Manpower Firearms Controlled Barangays Violent IncidentsCommunist Rebels 1,63622 1,56823 23224 193Dawlah Islamiyah 150 91 16 10BIFF 264 254 50 76ASG 424 473 138 66GRAND TOTAL 2,474 2,386 436 34525
We need more time to catch these people, to neutralize them, to reduce their capability to create trouble. Kapag po nai-reduce iyan ng about 30 percent ng kanilang capability and they become law enforcement problems, then the police forces can take over without the military. Kaunti na lang kami siguro, so support na lang kami.34During the oral argument, Gen. Madrigal affirmed Secretary Lorenzana's statement before Congress35 and explained that, the "military definition of destruction of the enemy," is "[reduction of their capability] by 30% in terms of strength, firearms, the support system."36 In such case, the conflict will be considered a law enforcement, rather than military, matter, on the basis of which the AFP "will gladly recommend the lifting of martial law."37 Gen. Madrigal's statements were seconded by Solicitor Calida, who afterwards declared:
Your Honor, I'd like to clarify when we were speaking about the 30%, Your Honor, statement of Secretary Lorenzana, I asked them, what is the baseline and what did 30%, when will you impose this? And they said, this year, Your Honor. If in this year they can reduce the capability to 30% this year, then they will recommend as you heard from the General, Your Honor.38Third. Although Solicitor General Calida committed to clarify, through the Memorandum to be submitted by the Government, the baseline on which the 30% capability reduction threshold will be applied,39 he would unfortunately renege on this commitment. Instead of clarifying the 70%-30% baseline as initially promised, the Solicitor General, in the Government's Memorandum, would thereafter assert that: "[t]he assessment of whether to extend martial law defies computation: it is not subject to any mathematical formula;"40 the AFP's calculus "cannot bind the President who is only bound by Section 18, Article VII of the Constitution;"41 "it would be contrary to common sense if the decision of the President is to depend on the calculations of his alter ego;"42 and "an extension of martial law would still be valid even if the DND Secretary declares that the rebels' capabilities had been degraded by more than seventy percent."43
Endnotes:
1 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
2Ponencia, p. 27.
3 See Jardeleza, J., Separate Opinion, Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, July 4, 2017, 829 SCRA 1, 602-668.
4 See Resolution, Lagman v. Medialdea, G.R. No. 243522, January 21, 2019.
5 That the Government wotrfd deign to renew a plea for in camera proceedings (after having decided not to do so in Lagman v. Pimentel) is for me a lamentably disappointing experience of constitutional deja vu.)
6Rollo, pp. 716-720.
7Supra note 4.
8 To my mind, the Reports did not implicate the types of information falling within the "single, extremely narrow class of cases" that the United States Supreme Court, in the leading case of New York Times Co. v. United States (403 U.S. 713, 1971), held may be validly covered by prior restraint. These types of information include, for example, sailing dates of transports or the number and iocation of troops, when the Nation is at war. (See also Separate Opinion in Lagman v. Medialdea, supra.)
9 Supra note 3.
10 Given the unusually short timeframe in martial law litigation, four days is an eternity.
11Supra note 3.
12https://www.dictionary.com/browse/rebel, last accessed on February 9, 2019.
13https://thelawdictionary.org/rebel/, last accessed on February 9, 2019.
14 Sec. 3. Terrorism. — Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:
a. Art. 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
b. Art. 134 (Rebellion or Insurrection);
c. Art. 134-a (Coup d' Etat), including acts committed by private persons;
d. Art. 248 (Murder);
e. Art. 267 (Kidnapping and Serious Illegal Detention);
f. Art. 324 (Crimes Involving Destruction), or under: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.)
- Presidential Decree No. 1613 (The Law on Arson);
- Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
- Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);
- 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, Ammunition or Explosives)
15 G.R. No. 235935, February 6, 2018.
16 See Jardeleza, J., Dissenting Opinion, Lagman v. Pimentel, G.R. No. 235935, February 6, 2018.
17Id. After finding that none of the above indicators obtained in Lagman v. Pimentel, I voted against the further extension of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao.
18 Transcript of Oral Arguments-En Banc, pp. 52-53; In the oral argument on January 29, 2019, the following exchanges were made between Associate Justice Jardeleza and Gen. Madrigal:
Justice Jardeleza: x x x I think, correct me, if I am correct, if I'm right, the capability of the enemies of the State is measured and I see it that's how you present it to Congress in terms of (1) manpower; that's why you have number of people; (2) firearms; (3) I think controlled barangays...
Gen. Madrigal: Yes, Your Honor.
Justice Jardeleza: And no. (4) violent incidents?
Gen. Madrigal: Yes, Your Honor.
Justice Jardeleza: So those four, which are in your data and as presented today and as presented to Congress. The sum total is what you call capability?
Gen. Madrigal: Yes, Your Honor.
19 AFP presentation in Lagman v. Pimentel, slide nos. 19, 26, 37, 52 and 75.
20Id.
21 OSG Comment, Annexes "4," "5," "6," and "7"; undated letter of Major General Fernando T. Trinidad to Cong. Edcel C. Lagman, Annex "E-14" of Lagman petition; OSG Comment, paragraph 33 states that these are 2018 "end of first semester data" without citing sources or providing figures for communist terrorist groups. In addition, I note that the 2018 figures vary per source of information. For example, the figures on firearms and controlled barangays corresponding to communist rebels are not found in the government's submissions. They were instead provided by Major General Lorenzo (Maj. Gen. Lorenzo) in his presentation at the oral arguments. Moreover, in his testimony before the Joint Session of Congress, Gen. Madrigal stated that the government is still pursuing a total of 2,435 communist and local terrorist groups, which is less than the total manpower tallied above.
22 Testimony of Gen. Madrigal during the Joint Session of Congress on December 12, 2018, Transcript, p. 27. Per Gen. Madrigal, the figures were "current... at this point."
23 Presentation of Maj. Gen. Lorenzo, Transcript of the Oral Arguments-En Banc, pp. 18-19.
24Id.
25 OSG Comment, Annexes "4," "5," "6," and "7."
26 OSG Comment, Annex "1." Letter of Gen. Delfin N. Lorenzana to President Duterte dated December 4, 2018.
27 OSG Comment, Annex "1." Undated Letter of Gen. Carlito Galvez, Jr. to President Duterte, emphasis supplied.
28Id.
29 Report of the Lead Inspector General to the United States Congress on Operation Pacific Eagle-Philippines, October 1, 2018 to December 31, 2018, p. 5, https://media.defense.gov/2019/Feb/05/2002086502/-1/-1/1/FY2019_LIG_OCOREPORT.PDF (last accessed February on 17, 2019)
30 Collectively referred as "ISIS-Philippines" or "ISIS-P" in the Report, https://media.defense.gov/2018/Jun/18/2001932643/1/1/1/FY2018_LIG_OCO_OIR_Q1_12222017_2.P DF (last accessed on February 17, 2019).
31 Report of the Lead Inspector General to the United States Congress on Operation Pacific Eagle-Philippines, October 1, 2018 to December 31, 2018, p. 6, https://media.defense.gov/2019/Feb/05/2002086502/-1/-1/1/FY2019_LIG_OCOREPORT.PDF (last accessed on February 17, 2019).
32Id.
33Id. My appreciation of the use of metrics by the American military was reinforced when I came across the report submitted to the United States Congress that I earlier adverted to. In the report, the United States Indo-Pacific Command was stated to be using "four metrics to track the degradation of ISIS- Philippines," namely: (1) lack of an ISIS-Core designated ISIS-Philippines emir; (2) the amount of funding ISIS-Core provides ISIS-Philippines; (3) the quality of ISIS-Core media coverage of ISIS-Philippines activities; and 4) cohesion or fragmentation of ISIS-Philippines' individual elements.
34 Transcript of the Joint Session of Congress, p. 57.
35 I asked the Government to explain Secretary Lorenzana's statement. My question was, "Is it the position of the government that when the capability of the local and the communist terrorist groups are degraded by 30%, then you can already recommend to the president that martial law is over?" (Transcript of Oral Arguments-En Banc, January 29, 2019, p. 51.)
36 Transcript of Oral Arguments-En Banc, January 29, 2019, p. 52.
37 Transcript of Oral Arguments-En Banc, January 29, 2019, p. 52-54.
38 Transcript of Oral Arguments-En Banc, January 29, 2019, p. 55.
39 Transcript of Oral Arguments-En Banc, January 29, 2019, pp. 56-58. In the oral argument, the following exchanges transpired:
Justice Jardeleza: So, Mr. SolGen, the position we would like to know from the government and please cover it in the memo. If we can agree now, we are looking, the Court will be looking to you what is the baseline? We have to agree. If the baseline is January 1, 2019...?
Solicitor General Calida: Yes, Your Honor.
Justice Jardeleza: If the baseline is January 1, 2019, that is the meaning of what the officers have testified today.
Solicitor General Calida: That's correct, Your Honor.
Justice Jardeleza: So, I do not know how the Court will decide. If the Court decides not to grant an extension, then that's the end of it. If the Court decides to grant an extension, we have agreed today that you will give us what is the baseline in terms of manpower, in terms of firearms, controlled barangays...
Solicitor General Calida: Capability.x x x x
Justice Jardeleza: So we have a deal. That's the...
Solicitor General Calida: Yes, Your Honor.
40 OSG Memorandum, para. 82.
41 OSG Memorandum, para. 82.
42 OSG Memorandum, para. 83.
43 OSG Memorandum, paras. 82-83.
44 Transcript of Oral Arguments-En Banc, p. 54; Gen. Madrigal stated that "We will gladly recommend the lifting of martial law if we attain that," referring to 70% reduction of rebel and terrorist capability.
45 As circumstances would allow.
46 CONSTITUTION, Art. XI, Sec. 1.
47 Sec. 4, R.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.
48 Sec. 3, Art. II, of the 1987 Constitution provides: The Armed Forces of the Philippines is the protector of the people and the State.
49 Sec. 5, Art. XVI of the 1987 Constitution provides:
- All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.
- The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty.
CAGUIOA, J.:
Before the Court are consolidated petitions filed under Section 18, Article VII of the Constitution, assailing the constitutionality of the third extension of the proclamation of martial law and suspension of the privilege of the writ of habeas corpus in the entire Mindanao for another year, from January 1 to December 31, 2019. The petitioners in G.R. Nos. 243522, 243745, and 243797 additionally pray for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction (WPI).
x x x The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justiciable cases coming before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are cardinal primary rights which must be respected even in proceedings of this character:As applied to a Section 18 review, these fundamental principles require the government to show as much of its factual basis to enable the Court to reach the conclusion that the third extension of martial law and the suspension of the privilege of the writ of habeas corpus is justified by substantial evidence.
x x x x
(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. x x x In the language of this Court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached." x x x This principle emanates from the more fundamental principle that the genius of constitutional government is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or conclusion x x x, but the evidence must be "substantial." x x x "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." x x x The statute provides that 'the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious pmpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order, x x x But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. x x x
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. x x x11
x x x [W]hile the Executive and Legislative departments cannot be compelled to produce evidence to prove the sufficiency of factual basis, these presumptions cannot operate to gain judicial approbation in the face of the refusal to adduce evidence, or presentation of insufficient evidence. For otherwise, the ruling that fixes the burden of proof upon the Executive and Legislative departments becomes illusory, and logically inconsistent: the Court cannot rule on the one hand that respondents in a Section 18 proceeding bear the burden of proof, and then on the other, rule that the presumptions of constitutionality and regularity apply. In short, the Court cannot say that the respondents must present evidence showing sufficient factual basis, but if they do not or cannot, the Court will presume that sufficient factual basis exists. x x xThat said, and even if the presumption of regularity can somehow apply in a Section 18 proceeding, it will not prevent the Court from examining the government's evidence for consistency and credibility and weighing their rational probative force.
Indeed, if the Court needs to rely upon presumptions during a Section 18 review, then it only goes to show that the Executive and Legislative departments failed to show sufficient factual basis for the declaration or extension. Attempts at validation on this ground is equivalent to the Court excusing the political departments from complying with the positive requirement of Section 18.12
30 April 2018 | LIQUIDATION | Inihatid na sa kani kanilang pamilya ang dalawang SF member na pinagbabaril Patay sa Mother Bagua to sa lungsod noong isang araw. Sa Impormasyong ibinahagi ng Col. Eros James Uri sa BNFM COT. Kahapon ng tanghali ng bigyan ng Military Honor ang dalawa bago paman mahatid sa kani kanilang mga pamilya sina Pfc. Richard Bendanillo. Na taga Alamada, North Cotabato at Cpl. Nelson Paimalan na taga UPI, Maguindanao. BIFF naman ang nakikitang mga suspek sa dalawang sundalo. |
31-Jan-18 | AMBUSCADE | (3) workers of DPWH, ARMM identified as Abdulbasit Daimun, Adzhar Dakis and Abdul Sarabin, with one SCAA escort identified as Mittoy Estajal onboard a dump truck emanated from Ungkayu Pukan going to DPWH Office in Brgy Lagasan, Lanitan City, both in Basilan were fired upon by two (2) unidentified gunmen using M203 Grenade launcher upon reaching vicinity of Brgy Baas, same city that resulted to the killing of two (2) civilians (Daimun and Dakis) and wounding of two (2) others (Sarabin and Estajal). Afterwich, the perpetrators withdrew towards the direction of Brgy Lebbuh, same city. The wounded victims were brought to Ciudad Medical in Zamboanga City for medication. Comments: a. The incident is an extortion related and possibly perpetrated by the group of Arjan Apinu under A5GSL Abdulla Jovel Indanan @ GURU, b. Since 2015, the group of @ GURU was monitored engaged in extortion activity targeting Construction Company, who has ongoing government projects in Tipo Tipo and Tuburan municipalities and prominent businessmen in the cities of |
01-Feb-18 | AMBUSCADE | certain Muksin Kaidin and Mukim (LNU) while onboard their vehicle were ambushed by undermined number of unidentified armed men at So Kapok Hawani, Brgy Latih, Patikul, Sulu. The victims sustained multiple GSWs and the body of Muksin Kaidin was burned due to the explosion of gasoline of said vehicle causing their death. Afterwhich, the suspects withdrew towards unknown directions while the cadavers of the victims were brought to IPHO Hospital, KHTB, Brgy Bus-Bus, Jolo, same province for proper disposition. Comments: a. Initial investigation conducted by the PNP averred that the motive of the incident is said to be a long-standing family feud or RIDO between the family of the victims and the suspects, b. On the other hand, it is most likely that this could be a handiwork of the Ajang-Ajang group tasked by the ASG to liquidate suspected military informants in the area. c. Patikul MPS conducted not pursuit operations on the suspects and will likewise conduct investigation to establish the motive and identity of the perpetrators. |
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 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.In this regard, the rule as it stands — and that which is applicable for the instant review — is that for purposes of establishing the sufficiency of the factual basis for the extension of martial law, the government bears the burden of proof to show that:
First,And second, that public safety requires the extension.
(1) [T]here is a (a) public uprising and (b) taking [of] arms against the [G]overnment; and (2) [T]he 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.19
From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime [of] rebellion.20The totality of the evidence presented by the respondents consists of the following:
- Annex "4" referring to ASG-initiated violent incidents,
- Annex "5" referring to BIFF-initiated violent incidents,
- Annex "6" referring to Dl-initiated violent incidents, and
- Annex "7" referring to NPA-initiated violent incidents.21
ASG-INITIATED VIOLENT INCIDENTS ANNEX "4"The above table shows a total of sixty-six (66) incidents attributed to the ASG that resulted in thirty-three (33) persons dead, thirty-six (36) persons wounded, and three (3) persons missing.
(01 January to 31 December 2018)
ACTIVITIES INCIDENT CASUALTIES PROVINCEGOV'T CIVILIAN ASG BASILAN SULU TAWI-TAWI ZAMBOANGA
PENINSULA OTHERS TOTAL WIA KIA WND MSNG KLDWND KLD APP ARR CAP SURAMBUSCADE 4 1 5 2 4ARSON 1 1CARNAPPING 1 1GRENADE THROWING 1 1HARASSMENT 2 14 16 6 1 4 1IED LANDMINING/EXPLOSION 3 5 8 10 6 8 5ATTEMPTED KIDNAPPING 1 1 2KIDNAPPING 15 1 2 18 3LIQUIDATION 3 3 6 1 5MURDER 3 1 4 4SHOOTING 3 1 4 1 6 1SUBTOTAL 18 43 1 2 2 66 17 9 19 3 22 0 2 0 0 0 0GRANDTOTAL 66 17 9 19 3 22 0 2
Of these sixty-six (66) entries, ten (10) are incomplete entries. Thirty-two (32) entries either do not identify perpetrators or identify the perpetrators as "suspected ASG" or "believed to be ASG." Fifty-seven (57) entries either do not identify the motive or state that the motive is undetermined. These gaps concur in twenty-six (26) entries which neither identify the perpetrators nor supply the motive.
ASG-initiated Violent Incidents Reported Casualty No. of Reports Dead Wounded MissingNo perpetrator, no motive31 20 12 19 15No perpetrator, motive not political32 1 0 0 0Suspected ASG, no motive33 7 6 3 1Suspected ASG, motive not political34 4 2 4 2ASG generally identified, no motive35 13 9 6 5ASG specifically identified, no. motive36 17 7 6 16ASG specifically identified, motive not political37 4 1 0 0Total 66 37 38 39Per respondents' summary 66 33 36 3Incomplete Reports 10 16 12 11
The table shows a total of seventy-six (76) incidents attributed to the BIFF that resulted in twenty-four (24) persons dead, thirty (30) persons wounded, and two (2) persons missing. BIFF-INITIATED VIOLENT INCIDENTS ANNEX "5"(01 January to 31 December 2018)
ACTIVITIES INCIDENT CASUALTIES PROVINCE GOV'T CAA CIVILIAN BIFF NORTH COTABATO MAGUINDANAO TOTAL WIA KIA WIA KIA WND MSNG KLD WND KLD APP ARR CAP SURAMBUSCADE 1 1 1ARSON 2 2EXPLOSION 1FIREFIGHTATTACK 1 3 4 4 2 2 6GRENADE THROWING 3 2 1HARASSMENT 9 31 40 7 1 2IED LANDMINING/ROADSIDE BOMBING 2 19 21 13 1 2 4 1KIDNAPPING 1 1 2MURDER 1 1 2SHOOTING 1 1 1LIQUIDATION 1 1 2 2 1 1SUBTOTAL 14 62 76 21 4 2 3 5 2 8 2 9 0 0 0 0GRANDTOTAL 76 21 4 2 3 5 2 8 2 9
Of these seventy-four (74) incidents attributed to the BIFF, thirty-five (35) entries either do not identify the perpetrators or identify them merely as "suspected BIFF" or "believed to be BIFF." Sixty-seven (67) entries either do not supply the motive or state that the motive is undetermined. Twenty-eight (28) of these entries neither identify the peipetrators nor supply the motive.
BIFF-initiated Violent Incidents Reported Casualty No. of Reports Dead Wounded MissingNo perpetrator, no motive50 28 3 26 0Suspected BIFF, no motive51 6 2 0 0Suspected BIFF, motive not political52 1 0 0 0BIFF generally identified, no motive53 20 1 8 0BIFF generally identified, motive not political54 2 3 0 2BIFF specifically identified, no motive55 13 5 0 0BIFF specifically identified, motive not political56 4 2 1 0Total 74 16 35 2Per respondents' summary 76 24 30 2Incomplete Reports 1 0 0 0
The table/summary shows a total often (10) incidents attributed to the DI that resulted in seven (7) persons dead, ninety-one (91) persons wounded, and one (1) person missing. DI-INITIATED VIOLENT INCIDENTS ANNEX "6"
(01 January to 31 December 2018)
ACTIVITIES INCIDENT CASUALTIES PROVINCE GOV'T CIVILIAN ASG DI MAUTE DI MAGUID DI TURAIFIE TOTAL WIA KIA WND MSNG KLD WND KLD APP ARR CAP SURAMBUSCADE 0ARSON 0BEHEADING 0FIREFIGHT/ATTACK 1 1 2GRENADE THROWING 0HARASSMENT 0IED LANDMINING/EXPLOSION 1 3 4 91 6KIDNAPPING 1 1 1LIQUIDATION 1 1 1MURDER 0SHOOTING 1 1 2SNIPING 0STRAFING 1 1SUBTOTAL 5 1 4 10 2 0 91 1 7 0 0 0 0 0 0GRANDTOTAL 10 2 0 91 1 7 0 0
Of the ten (10) incidents attributed to the DI, seven (7) entries either do not identify the perpetrators or identify them merely as "suspected DI" or "believed to be DI." Eight (8) entries do not supply the motive. From the context of one report, the motive appears to have been given but the text was incomplete.
DI-initiated Violent Incidents No. of Reports Reported Casualty Dead Wounded MissingNo perpetrator, no motive65 5 5 91 0Suspected DI, no motive66 1 0 0 1Suspected DI, motive not political67 1 1 0 0Perpetrators specifically identified, no motive68 3 0 0 0Total Incidents 10 6 91 1Incomplete Reports69 4 4 45 1 Per respondents' summary 10 7 93 1
RECAPITULATION Of NPA-INITIATED VIOLENT INCIDENTS (NIVIs) ANNEX "7"The tables above, along with statements from Jose Maria Sison, founding Chairman of the CPP, and the accounts of surrender of CPP-NPA persons and firearms in the monthly reports of the implementation of martial law, make up the entirety of the government's submission on the factual basis on the ground of the CPP-NPA's ongoing rebellion. These statements by Sison include:
TYPE OF INCIDENT 01 Jan to 22 May 2017 23 May to 23 Oct 2017 24 Oct to 31 Dec 2017 Total 2017 01 Jun to 31 Dec 2018A. GUERILLA OPNS AMBUSH 12 24 9 45 39RAID 15 8 1 24 8NUISANCE HARASSMENT 75 71 24 170 79HARASSMENT 50 49 20 119 59DISARMING 8 8 1 17 7LANDMINING 13 13 0 26 18SPARU OPNS 12 20 5 37 42SUB-TOTAL 185 193 60 438 252B. TERRORIST ACTVS LIQUIDATION 35 32 14 81 61KIDNAPPING 18 23 2 43 8ROBBERY/HOLD-UP 6 2 1 9 1BOMBING 1 1 0 2 2ARSON 54 33 7 94 44SABOTAGE 1 0 0 1 1SUB-TOTAL 115 91 24 230 117GRAND TOTAL 300 284 84 668 369
RECAPITULATION OF NPA-INITIATED VIOLENT INCIDENTS (NIVIs) IN MINDANAO
TYPE OF INCIDENT 01 Jan to 22 May 2017 23 May to 23 Oct 2017 24 Oct to 31 Dec 2017 Total 2017 01 Jun to 31 Dec 2018A. GUERILLA OPNS AMBUSH 5 6 4 15 18RAID 6 2 0 8 5NUISANCE HARASSMENT 50 53 13 116 41HARASSMENT 43 28 15 86 30DISARMING 4 5 0 9 5LANDMINING 10 7 0 17 10SPARU OPNS 8 12 0 20 21 SUB-TOTAL 126 113 32 271 130B. TERRORIST ACTVS LIQUIDATION 17 9 9 35 24KIDNAPPING 17 18 2 37 7ROBBERY/HOLD-UP 6 2 0 8 1BOMBING 1 1 0 2 2ARSON 42 21 5 68 29SABOTAGE 1 0 0 1 0 SUB-TOTAL 84 51 16 151 63 GRAND TOTAL 210 164 48 422 193
The people's army can launch tactical offensives against the increasingly more vulnerable points of the enemy forces whenever these are overstretched and spread thinly in campaigns of suppression. The enemy armed forces does not have enough armed strength to concentrate on and destroy the Party and the people's army in any region, without those in other regions launching offensives to relieve their comrades in the region under attack.During the oral arguments, the respondents were asked whether they would be submitting additional details with respect to the rebellion by the NPA. Despite their assurance that they would submit, no additional submissions were made in their Memorandum.
x x x x
As of the latest report, 75 of the total 98 maneuver battalions of the reactionary armed forces are concentrated in Mindanao under conditions of martial law. Forty-four battalions are deployed against the NPA areas and 31 against Bangsamoro groups. x x x83
And
x x x [T]he Communist Party of the Philippines is relevant. It is leading a vibrant revolutionary movement. The CPP itself has grown from only 80 members in 1968 to tens of thousands now, and it has organized [the] New People's Army, and the New People's Armies all over the country like the Communist Party. The CPP and NPA and the mass organizations have created the local organs of political power which constitutes the people's government. So, that's a lot of achievement. The revolutionary movement has grown strong because it has the correct line.84
While these violent incidents are to be condemned, the commission of the acts without identifying any political motive constitutes lawless violence, and is not sufficient to prove the persistence of rebellion in Mindanao.
Harassment ASG Reported
Casualty BIFF Reported Casualty DI Reported Casualty Total Total Reported Casualty D W D W D W D WNo. of incidents per cover summary 16 7 5 40 3 7 0 0 0 56 10 12 Based on specific reportsAgainst other armed groups85 0 0 0 0 0 0 1 0 0 1 0 0Against civilians/open spaces86 3 4 1 1 0 0 0 0 0 4 4 1Against military/CAFGU/BPAT personnel87 1 0 0 5 0 2 0 0 0 6 0 2Against military detachments/posts88 7 0 6 34 4 9 0 0 0 41 4 15No. of incidents per specific reports 11 4 7 40 4 11 1 0 0 52 8 18
Legend: D - Dead; W - Wounded.
(1) | The February 4, 2018 account of harassment committed by an "undetermined number of Ajang-Ajang Group" against the detachment of 5Coy, PA under NIWANE. The stated motive is that "related to the nlanfnedl atrocities of ASGSL Hatib Hadjan SAWADJAAN tapping the Ajang-Ajang Group to conduct harassments and liquidations to military installations and personnel as well as informants x x x."89 |
(2) | The February 28, 2018 account of a harassment against BPAT and LGU conducting road construction projects by "MOL [ten (10)] fully armed ASG led by ASGSL Abdullah Jovel INDANAN @ GURO." The Report explains that "@ GURO has a family feud with the incumbent [Brgy.] Chairman of Dugaa" where the shooting happened.90 |
(3) | The March 30, 2018 account of a brief firefight between the Latih Detachment and "MOL forty (40) fully armed ASG members led by ASGSL Hajan SAWADJAAN" for the reason "x x x [t]he ASG's harassment of Latih Detachment was to avenge the death of ASG member Roger SAMLAON who was killed last [March 15], 2018 after encounter with government troops."91 |
The word 'harassment' is a military term for a type of armed attack where the perpetrators fire at stationary military personnel, auxiliaries, or installations for a relatively short period of time (as opposed to a full armed attack) for the purpose of inflicting casualties, as a diversionary effort to deflect attention from another tactical undertaking, or to project presence in the area. At times, like in the case of the November 10, 2018 incident in Marogong, Lanao del Sur, harassments or attacks are directed against the MILF or any group perceived to be an ally or is supportive to the government. Harassments are undertaken not in isolation but as part of a bigger military strategy. This is a common tactic employed by the Communist Terrorist Group, the ASG, DI, and BIFF.92Elsewhere in the letter, he explains,
x x x motive is not an element of rebellion; it is not necessary to show motive to prove that there are groups presently waging a rebellion in Mindanao. As long as the perpetrators are associated with the mentioned rebel groups and they engage in armed attacks against government forces and civilians for the purpose of overthrowing the government, a reasonable mind would consider these acts as having been committed in furtherance of rebellion.93Unfortunately, however, this legal argument cannot take the place of proof. In this case, the burden of the government is to establish, at the first instance, the persistence of rebellion. Since the government has not yet proven the existence or persistence of an ongoing rebellion, then the requisite of proving each incident as an act of rebellion has not been dispensed with. The determination of whether an act is "in furtherance of rebellion," or a distinct or separate crime in itself, precisely contemplates a situation where there is an ongoing rebellion the evidence of which is sorely missing here.
This was also confirmed by the PNP data submitted by the respondents which shows that there were no charges filed against the persons identified to have participated in the harassment of military or government installations or personnel.96
NAME DATE OF ARREST PLACE OF ARREST/APPREHENDING UNIT STATUS REMARKS Abdelhakim Labdi Adib 22 January 2018 Basilan CHARGED On 24 January, filed case for illegal possession of explosives (c/o CPT POPANES) [Najiya Dilangalen Karon Maute] 23 January 2018 Cotabato RELEASED Released for insufficiency of evidence Jamar Abdulla Mansul 22 January 2018 NAIA RELEASED Released for lapse of period [Fehmi Lassqued] 16 February 2018 Malate, Manila FOR INQUEST Pending Preliminary Investigation for Illegal Possession of Firearms, Illegal Possession of Explosives95
x x x On the other hand, kidnapping is undertaken particularly by the ASG to finance its operational and administrative expenses in waging rebellion. As shown in the presentation during the oral arguments, the ASG has amassed an estimated PhP41.9 million in ransom proceeds for 2018 alone. With regard to arson, the tactic is commonly used by the same rebel groups for various purposes such as intimidating people who are supportive of the government, as punitive action for those who refuse to give in to extortion demands, or simply to terrorize the populace into submission. All these activities are undoubtedly undertaken in furtherance of rebellion.99Again, this explanation is not sufficient because without a single incident wherein the purpose and overt act of rebellion concur, rebellion does not legally exist.100 Hence, there is no room to argue that any common crime is undertaken in furtherance of rebellion.
x x x If there is rebellion or invasion but government continues to function nonetheless, the calling out powers may be employed by the President, but not martial law or the suspension of the privilege of the writ of habeas corpus. Only in cases where the rebellion or invasion has made it extremely difficult, if not impossible, for the government (or the courts) to function, to the extent that government or the local government in the area affected by the rebellion can no longer assure public safety and the delivery of government services, that the imposition of martial law is constitutionally permissible.112Petitioners therein then add that the letter of the President dated December 6, 2018 requesting Congress to extend martial law in Mindanao from January 1, 2019 to December 31, 2019 did not allege that the situation had deteriorated to the extent that the civilian government no longer functioned effectively.114 Thus, the petitioners conclude that public safety was not imperiled, and consequently, the further extension of martial law was void.
x x x x
x x x It must be reiterated that while government may assert that all rebellions threaten the safety of the public, this generic definition of public safety is not the same as the definition of public safety that triggers the imposition of martial law. Otherwise, there is no difference at all between the rebellion that necessitates the imposition of martial law, from the rebellion that merely triggers the calling out powers. x x x113
As previously held by the Court in Lagman v. Medialdea, the parameters for determining the sufficiency of the factual basis for the declaration of martial law are set by no less than the Constitution itself.118 Section 18, Article VII provides that to justify the declaration of martial law, two requisites must concur: (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power.119 In Lagman v. Medialdea, the Court held that "[w]ithout the concurrence of the two conditions, the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down."119a Thus, the mere fact of a persisting rebellion or existence of rebels, standing alone, cannot be the basis for the extension.120
- No less than 181 persons in the martial law Arrest Orders have remained at large.
- Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less than 2 months is a testament on how lethal and ingenious terrorist attacks have become.
- On October 5, 2018, agents from the Philippine Drug Enforcement Agency (PDEA) who conducted an anti-drug symposium in Tagoloan II, Lanao del Sur, were brutally ambushed, in which five (5) were killed and two (2) were wounded.
- The DI continues to conduct radicalization activities in vulnerable Muslim communities and recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in these areas immensely disrupted the government's delivery of basic services and clearly needs military intervention.
- Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their express kidnappings. As of December 6, 2018, there are still seven (7) remaining kidnap victims under captivity.
- Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of communist rebel insurgency in the country. Eight (8) out of the 14 active provinces in terms of communist rebel insurgency are in Mindanao.
- The Communist Terrorist Rebel Group in Mindanao continues its hostile activities while conducting its organization, consolidation and recruitment. In fact, from January to November 2018, the number of Ideological, Political and Organizational (IPO) efforts of this group amounted to 1,420, which indicates their continuing recruitment of new members. Moreover, it is in Mindanao where the most violent incidents initiated by this group transpire. Particularly, government security forces and business establishments are being subjected to harassment, arson and liquidations when they defy their extortion demands.
- The CTRG's exploitation of indigenous people is so rampant that Lumad schools are being used as recruiting and training grounds for their armed rebellion and anti-government propaganda. On November 28, 2018, Satur Ocampo and 18 others were intercepted by the Talaingod PNP checkpoint in Davao del Norte for unlawfully taking into custody 14 minors who are students of a learning school in Sitio Dulyan, Palma Gil in Talaingod town. Cases were filed against Ocampo's camp for violations of Republic Act (R.A.) No. 10364, in relation to R.A. No. 7610, as well as violation of Article 270 of the Revised Penal Code (RPC), due to the Philippine National Police's (PNP) reasonable belief that the school is being used to manipulate the minds of the students' rebellious ideas against the government.117
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. Their transitory and abstract nature defies precise measurements; hence, the determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law.125It is well, however, to qualify that while rebellion and public safety indeed have no fixed physical dimensions — and that, as a result, the Executive is given sufficient leeway to determine the scope of the territory covered by martial law in light of the information before him — the said discretion granted by the Constitution cannot be so broad so as to render nugatory the specific limitations placed by it to justify the imposition of the extraordinary power.
Lastly, it is significant to point out that the AFP is dealing with irregular rebel forces that have no formal organizational structure and whose members have no formal appointment papers. For security purposes, they commonly use aliases to hide their real identity. Therefore, establishing the identities of perpetrators for every attack takes time. The intelligence community, in validating the participation of the perpetrators of violence in the rebellion, cannot be reasonably expected to operate on the basis of the strict rules of evidence. The asymmetric warfare being waged by the rebel groups allows them to thrive despite lopsided force disparity in favor of the military. Unlike government security forces, the rebels' actions are not constrained by legal restrictions. They are largely anonymous and can easily merge with the population when confronted by the military.140The respondents' point is well-taken. Investigations do take time — and for that exact reason, the respondents were given sufficient time and opportunity to submit reports on the outcome of further investigations, and to clarify or ascertain unclear entries (that showed incidents as early as January of 2018). In addition, that these various groups use aliases in their operations is acknowledged. That is why the Court accepted, for instance, that the report only states that "around 10 ASG elements led by @ ABU DARDA" were the perpetrators for the August 18, 2018 Ambuscade in Ungkaya Pukan, Basilan.141 In this instance, the respondents were requested only to explain the attack's connection with the supposed rebellion, for the report itself only stated, without more, that the victim was a Barangay Peacekeeping Action Team (BPAT) member.
x x x Indeed, when our Framers tasked the Court to determine the sufficiency of the factual basis for the proclamation of martial law or suspension of the privilege of the writ of habeas corpus, it certainly did not mean for the Court to verify only the factual bases for the alleged rebellion and "permissively" rely on the President's assessment of the public safety requirement given the facts presented.At the risk of being repetitive, a Section 18 proceeding, such as the present case, is a fact-checking mechanism. Thus, the Court expects and requires a certain level of proof, and blanket claims of "according to informants", "suspected ASG", "believed to be BIFF" would not suffice.
For the Court to take such an approach goes against the very reason why it was given the specific mandate under Section 18, Article VII in the first place. Such an approach defeats the deliberate intent of our Framers to "shift [the] focus of judicial review to determinable facts, as opposed to the manner or wisdom of the exercise of the power" and "[create] an objective test to determine whether the President has complied with the constitutionally prescribed conditions."142
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:Consequently, the necessity of martial law requires a showing that it is necessary for the military to perform civilian governmental functions or acquire jurisdiction over civilians to ensure public safety. As further stated in Lagman v. Medialdea: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 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.
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.146
The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial law serves as a warning to citizens that the Executive Department has called upon the military to assist in the maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner that will render it more difficult to restore order and enforce the law. As such, their exercise requires more stringent safeguards by the Congress, and review by the Court.147While the standard of necessity may appear exacting, it should not be seen as an undue restraint on the powers that the President may exercise in the given exigencies. As already explained, the President is equipped with broad and expansive powers to suppress acts of lawless violence, and even actual rebellion or invasion in a theater of war, through the calling out power — a power which neither requires any concurrence by the legislature nor is subject to judicial review.
JUSTICE LEONEN:To reiterate, martial law is an emergency governance response — the least benign of the emergency powers — that is directed against the civilian population, thereby allowing the military to perform what are otherwise civilian government functions and vesting military jurisdiction over civilians. It is through this lens that the Court determines the sufficiency of the basis for the extension of martial law. However, as already mentioned, the respondents have failed to prove the requisites, along with the necessity, for the extension of martial law and the suspension of the privilege of the writ of habeas corpus.Yes, by a protracted declaration of martial law which means the military rules regardless of whether or not it is benign, there is an implicit message that local governments cannot do it, is that not correct?ATTY. DIOKNO:That is the case, yes.JUSTICE LEONEN:And the danger there is recognized by our Constitution because, therefore, it said that martial law is only exigent and contingent, is that not correct?ATTY. DIOKNO:I think it's clear, Your Honor, that the martial law is really intended to be a temporary to address an emergency.JUSTICE LEONEN:And to win against one thousand six hundred (1600) communists and five hundred seventy-five (575), I will not even say Muslim, I will say Salafis, I will say violent extremists, will take not only the might of the military no matter how professional they are, but good governance, is that not correct?ATTY. DIOKNO:That is so true, Your Honor, no... (interrupted)JUSTICE LEONEN:And martial law is antithetical to good governance, is that not correct?ATTY. DIOKNO:That is the case, Your Honor.JUSTICE LEONEN:Because we do not give an opportunity to civilian authorities to catch up, is that not correct?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Okay, may I ask you, can checkpoints be set up without martial law?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Can busses (sic) be searched without martial law?ATTY. DIOKNO:Yes, Your Honor.JUSTICE LEONEN:Saluday vs. People under the ponentia (sic) of Justice Carpio, unanimous Court said it can, very recently, 2018 only. Can the attendance of LGUs be checked without martial law?ATTY. DIOKNO:Of course, yes, Your Honor.JUSTICE LEONEN:In fact, will they, will the local governments in the ARMM be more fearful and attend to their duties if it is ordered by the President himself rather than simply the military?ATTY. DIOKNO:Yes, I believe so.JUSTICE LEONEN:Who is more feared, the president or the military?ATTY. DIOKNO:(Chuckles) I'm not sure, Your Honor.JUSTICE LEONEN:Well, I guess people will say the Commander-in-Chief is more powerful than the military. So, what we need really is a serious program to counter violent extremism, as well as a serious program to build good governance rather than martial law, is that not correct?ATTY. DIOKNO:That is true, Your Honor.JUSTICE LEONEN:Because no matter the numbers of fighting forces and firearms, it will always recur if the root causes are not addressed, is that not correct?ATTY. DIOKNO:That is correct.150
The Constitution provides that Congress, voting jointly, may extend the period of martial law and the suspension of the privilege of the writ "if the x x x rebellion shall persist." Literally and without need of constitutional construction, the word "persist" means the continued existence of the same invasion or rebellion when martial law was initially proclaimed or the privilege of the writ was initially suspended. In the deliberations of the Constitutional Commission, the framers understood that the extension could be justified "if the invasion (or rebellion) is still going on." The authority of Congress to extend martial law and the suspension of the privilege of the writ is, therefore, limited to the same rebellion persisting at the time of the extension. In other words, the rebellion used by Congress as justification to extend martial law and the suspension of the privilege of the writ must be the same rebellion identified in the initial proclamation of the President.The Constitution cannot be any clearer: the Congress may extend the President's proclamation of martial law if the same rebellion necessitating such proclamation shall persist.159
x x x x
Indeed, the authority of Congress to extend the proclamation of martial law and the suspension of the privilege of the writ must be strictly confined to the rebellion that "persists," the same rebellion cited by President Duterte in Proclamation No. 216. Hence, the end of the Maute rebellion marked the end of the validity of Proclamation No. 216. Any extension pursuant thereto is unconstitutional since the Maute rebellion already ceased, with the death of its leader Isnilon Hapilon and the liberation of Marawi City. To uphold the extension of martial law and the suspension of the privilege of the writ when the Maute rebellion no longer persists, in Marawi City or anywhere else in Mindanao, would sanction a clear violation of Section 18, Article VII of the Constitution.158
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;With the foregoing, it is clear that Proclamation No. 216 was issued to quell the Marawi siege as perpetrated by the Maute group. The third extension, on the other hand, as advanced by the respondents themselves, is based on the alleged ongoing rebellion perpetrated by the LTRGs and the CTRGs. This cannot be, as violent attacks by different armed groups could easily form the basis of an endless chain of extensions, so long as there Eire overlaps in the attacks.161 This dangerously supports the theoretical possibility of perpetual martial law.162 Thus, by clear mandate of the Constitution that Congress may extend the President's proclamation of martial law only if the same rebellion necessitating such proclamation shall persist, then Proclamation No. 216 has become functus officio with the cessation of the Marawi Siege.
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.160
x x x It is well-settled that courts do not interfere with the Ombudsman's discretion in determining probable cause whose findings, when supported by substantial evidence and in the absence of grave abuse of discretion or any capricious, whimsical and arbitrary judgment as to amount to an evasion of a positive duty, are entitled to great weight and respect, as in this case.180And:
x x x It is settled that the Ombudsman's determination of whether or not probable cause exists is entitled to great weight and respect, and should stand so long as supported by substantial evidence x x x.181When the Court or a judge reviews the probable cause determination of the prosecutor, the threshold is substantial evidence:
The general rule of course is that the judge is not required, when determining probable cause for the issuance of warrants of arrests, to conduct a de novo hearing. The judge only needs to personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.When the third extension is validated by the majority based on the existence of probable cause divorced from substantial evidence, there is basic misunderstanding of the quantum of evidence continuum. When the fundamental requirements in the most permissive of judicial and administrative proceedings are held not to apply to review the factual basis for the extension of martial law, then is this not basically saying that the Court is willing to accept even a scintilla of evidence? This is simply egregious error.
But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits the inconsistent statements that they earlier submitted to the Office of the Ombudsman. Consequently, it was not unreasonable for Judge Yadao, for the purpose of determining probable cause based on those affidavits, to hold a hearing and examine the inconsistent statements and related documents that the witnesses themselves brought up and were part of the records. Besides, she received no new evidence from the respondents.182
And we agree with the Solicitor General that in 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 whether the exigency has arisen requiring suspension belongs to the President and "his decision is final and conclusive" upon the courts and upon all other persons.Turning our attention to Barcelon, it is instantly apparent that it cannot be basis for the Court to anchor its findings in a Section 18 review to the determination of the political departments on account of the latter's far more superior information-gathering machinery. The Court in Barcelon refused to review the factual basis of the suspension of the privilege of the writ of habeas corpus for being a political question:
Indeed as Justice Johnson said in that decision, whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the Archipelago.
But even supposing the President's appraisal of the situation is merely prima facie, we see that petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary accords to acts of the Executive and Legislative Departments of our Government.194
We are of the opinion that the only question which this department of the Government can go into with reference to the particular questions submitted here are as follows:Relying upon decisions of the United States Supreme Court to this effect, Barcelon concludes:
(1) Admitting the fact that Congress had authority to confer upon the President or the Governor-General and the Philippine Commission authority to suspend the privilege of the writ of habeas corpus, was such authority actually conferred? and
(2) Did the Governor-General and the Philippine Commission, acting under such authority, act in conformance with such authority?
If we find that Congress did confer such authority and that the Governor-General and the Philippine Commission acted in conformance with such authority, then this branch of the Government is excluded from an investigation of the facts upon which the Governor-General and the Philippine Commission acted, and upon which they based the resolution of January 31, 1905, and the executive order of the Governor-General of the same date. Under the form of government established in the Philippine Islands, one department of the Government has no power or authority to inquire into the acts of another, which acts are performed within the discretion of the other department.195
We base our conclusions that this application should be denied upon the following facts:Verily, this has not been the state of the law for close to thirty-three (33) years - counted from the adoption of the 1987 Constitution, and close to fifty (50) years if counted from Lansang.
x x x x
Fourth. That the conclusion set forth in the said resolution and the said executive order, as to the fact that there existed in the Provinces of Cavite and Batangas open insurrection against the constituted authorities, was a conclusion entirely within the discretion of the legislative and executive branches of the Government, after an investigation of the facts.
Fifth. That one branch of the United States Government in the Philippine Islands has no right to interfere or inquire into, for the purpose of nullifying the same, the discretionary acts of another independent department of the Government.
Sixth. Whenever a statute gives to a person or a department of the Government discretionary power, to be exercised by him or it, upon his or its opinion of certain facts, such statute constitutes him or it the sole and exclusive judge of the existence of those facts.
Seventh. The act of Congress gave to the President, or the Governor-General with the approval of the Philippine Commission, the sole power to decide whether a state of rebellion, insurrection, or invasion existed in the Philippine Archipelago, and whether or not the public safety required the suspension of the privilege of the writ of habeas corpus.
Eighth. This power having been given and exercised in the manner above indicated, we hold that such authority is exclusively vested in the legislative and executive branches of the Government and their decision is final and conclusive upon this department of the Government and upon all persons.196
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. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission. x x xThere is no question that the political departments have the machinery to determine the conditions on the ground, but this is not basis to hold that the standard of review in this case is the same as that in David v. Macapagal-Arroyo and IBP v. Zamora. This far superior information-gathering machinery of the Executive department is precisely why the Court has held, in the past Section 18 proceedings before it, that the government bears the burden of proof to show the factual basis. That is why burden of proof is upon the respondents. Let them meet their burden. If the Court is not able to determine the accuracy or the existence of the factual basis of the extension of martial law, then it only means that the government did not meet its burden.
x x x x
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.
Moreover, under 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.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof.
x x x x
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.201
Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same meaning as the term "rebellion" is defined in Article 134 of the Revised Penal Code.The ponencia's holding in fact amounts to an abandonment of the holding in Lagman v. Medialdea and Lagman v. Pimentel III that required an actual rebellion, albeit not necessarily that which was covered in the original proclamation. Unbelievably, the decision reached by the majority today does not even contain a standard of what amorphous rebellion is sufficient for a Section 18 review.
The term "rebellion" has always been understood in this country as an armed public uprising against the government for the purpose of seizing power. This has always been the meaning of the crime of rebellion since the enactment of Act No. 292, Sec. 3, from which Art. 134 of the present Revised Penal Code was taken. Hence, the term "rebellion" in Art. VII, Sec. 18 of the Constitution must be understood as at present defined in Art. 134 of the Revised Penal Code, consisting of —[the] rising publicly and taking [of] 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.Like "treason," "bribery, graft and corruption" in the Impeachment Clause, the Constitution has left the meaning of "rebellion" in the Commander in Chief Clause to be defined by law.
Indeed, it is with the crime of rebellion as defined in the penal law that petitioners in the habeas corpus cases of Barcelon v. Baker, Montenegro v. Castañeda, and Lansang v. Garcia were charged. It is the same crime with which some of the accused in the Maguindanao massacre are charged in the prosecutors' offices and in trial court.
With this meaning of "rebellion," the members of the Constitutional Commission were familiar. There was an attempt to provoke a discussion of the nature of rebellion in the Constitutional Commission the discussion ended in a reiteration of the concept of rebellion as a public uprising against the government for the purpose of seizing power. It was pointed out that any other armed resistance against the government would only be either sedition or tumultuous affray, not justifying the imposition of martial law or the suspension of the privilege of the writ of habeas corpus. Thus, in the deliberations of the Commission on July 29, 1986 the following discussion took place:
MR. DE LOS REYES. May I ask some questions of the Committee.
One of the significant changes in Section 15 is that the phrase imminent danger thereof was deleted, including the word "insurrection." [I] would like to be clarified as to the reason for the deletion of the phrase "or imminent danger thereof in justifying the imposition of martial law and suspension of the privilege of the writ of habeas corpus.
MR. REGALADO. [T]he gentleman will recall that in the 1935 Constitution the phrase imminent danger thereof did not appear in the Bill of Rights. However, the framers of the 1973 Constitution wanted to have a strong President and they added the phrase imminent danger thereof in the provision on Commander-in-Chief.208 [B]ut recent events have shown that the phrase is fraught with possibilities of abuse. Where the President states that there is an imminent danger of rebellion, it appears that he would have to rely on his word because he could always say that this is the military intelligence report. [E]ven with the Supreme Court trying to look into their factual basis under the proposed Constitution, can still be thwarted because the Supreme Court cannot just disregard a so-called classified, highly reliable intelligence report coming from different agencies which for all we know could easily be contrived in the hands of a scheming President...
MR. DE LOS REYES. As I see now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean there should be actual shooting or actual attack on the legislature or Malacanang, for example? Let us take for example a contemporary event - this Manila Hotel incident, ... would the Committee consider that an act of rebellion?
MR. REGALADO. If we consider the definition of rebellion under Article 134 and 135 of the Revised Penal Code, that presupposes 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. [I] do not know whether we consider that there was really an armed public uprising. Frankly I have my doubts on that because we are not privy to the investigation conducted here.
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, but without armed public uprising, that would amount to sedition under Article 138, or it can be considered tumultuous disturbance.
....
MR. REGALADO. It [then] becomes a matter of appreciation. If ... there is really an armed 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 yet necessary to declare martial law because he can still resort to the lesser remedy of just calling out Armed Forces for the purpose of preventing or suppressing lawlessness or rebellion. (Sic)209
Thus, only an actual rebellion is contemplated in the Constitution as ground for declaring martial law or suspending the privilege of the writ of habeas corpus. Short of that, an incident may only justify using the Armed Forces for the purpose of suppressing lawless violence. This is the consequence of deleting "imminent danger [of rebellion]" and "insurrection" in our two previous Constitutions as grounds for declaring martial law or suspending the privilege of the writ.
Mere allegations — without more — that "heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the law and to maintain public order and safety," and that "condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanism in the province are not functioning, thus endangering public safety" are insufficient to constitute an allegation of actual rebellion that alone can justify the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus.
That "rebellion" in the Commander in Chief Clause means the crime of rebellion as defined in Art. 134 of the Revised Penal Code is clear from Art. VII, Sec. 18 which provides that "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." One can only be "judicially charged" with rebellion only if one is suspected of having committed acts defined as rebellion in Art. 134 of the Revised Penal Code.
The government's interpretation of the term "rebellion" would broaden its meaning and defeat the intention of the Constitution to reduce the powers of the President as Commander in Chief.210
The question in the case is this: Have the Governor-General and the Commission power to suspend the writ of habeas corpus when no insurrection in fact exists? If tomorrow they should suspend the writ in Manila, would that suspension be recognized by the courts?VII. On the ratio that because rebellion is a continuing crime, it continues despite the cessation of the armed public uprising
That in such a case they ought not to suspend the writ and that where no insurrection in fact exists they would have no right to do so, are propositions which have no bearing upon the case. The question is, Have they the power to do it?
Prior to the passage of the act of Congress of July 1, 1902, the Commission had that power. They could suspend the writ, take it away entirely from certain provinces, or repeal entirely the law which authorized it to be issued. They had absolute control over it. (In re Calloway, 1 Phil. Rep., 11.)
By the decision of the majority in this case the Governor-General and the Commission still have that power. The effect of this decision is to give them the same power which the Commission exercised before the passage of the act of Congress of July 1, 1902. In other words, that part of the act which relates to the writ of habeas corpus has produced no effect. It is repealed by this decision, and Congress accomplished nothing by inserting it in the law. No construction which repeals it should be given to this article. If a given construction leads to that result it seems to me that it must be certain that the construction is wrong. No other argument to prove that it is wrong is needed. Congress must have intended that this provision should produce some effect. To hold that it has produced no effect is to defeat such intention.
But it is said that by the terms of the act, while the Governor-General and the Commissioners have the power to suspend the writ, they should not do it except in cases where insurrection in fact exists, and they, being men of character and integrity, would not do it except in such cases. As the Government is at present constituted, this is undoubtedly true. This argument, however, is fully answered by what was said by the Supreme Court of the United States in the case of Ex parte Milligan (4 Wallace 2, 125):"This nation, as experience has proved, can not 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."216
9.1 respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers no reasonable basis for such use of the doctrine. More specifically, that doctrine, in my submission, does not dispense with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile does not sustain warrantless arrests of person who, at the time of the actual arrests, were performing ordinary acts of day-to-day life, upon the ground that the person to be arrested is, as it were, merely resting in between specific lawless and violent acts which, the majority conclusively presumes, he will commit the moment he gets an opportunity to do so.In the context of validity of warrantless arrests, Justice Santiago Kapunan also sought to clarify the import and applicability of Umil in the later case of Lacson v. Perez221 (Lacson):
Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.
x x x x
12. 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 of 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.220
Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondent's theory is based on Umil vs. Ramos, where this Court held:Again, this was still the context when the doctrine of rebellion as a continuing crime was touched upon in the 2004 case of Sanlakas v. Reyes.223 In her Separate Opinion, Justice Consuelo Ynares-Santiago explains this doctrine in Umil and Lacson: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 assault against the State and are in the nature of continuing crimes.Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists.
Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion which justified their arrests without warrants.
In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. x x x222
Rebellion has been held to be a continuing crime, and the authorities may resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court. However, this doctrine should be applied to its proper context — i.e., relating to subversive armed organizations, such as the New People's Army, the avowed purpose of which is the armed overthrow of the organized and established government. Only in such instance should rebellion be considered a continuing crime.224Verily, there is no pretense at precedent that can support the proposition that rebellion continues when it has not been shown to exist.
x x x As in treason, where both intent and overt act are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist, is shown by the absence of any penalty attached to article 134. It follows, therefore that any or all of the acts described in article 135, when committed as a means to or in furtherance of the subversive ends described in article 134, become absorbed in the crime of rebellion, and can not be regarded or penalized as distinct crimes in themselves. In law they are part and parcel of the rebellion itself, and can not be considered as giving rise to a separate crime that, under article 48 of the Code, would constitute a complex one with that of rebellion.226At the risk of being repetitive — but if only to belabor the truth that the majority have closed their eyes to — there is no sinsle incident in the sovernment's submissions wherein the purpose and overt act of rebellion concur. Hence, in this case, as instructed by People v. Geronimo, the Court should have found that rebellion does not exist (or persist). Without a political purpose, these ambuscades, murder, kidnapping, shooting and other violent incidents are common crimes committed for private purposes, as is clearly shown by the reports themselves. The Court cannot find the persistence of rebellion by supplying the political or rebellious purpose where the government itself did not show any.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.In this jurisdiction, this was very eloquently explained by Justice Jose Laurel in Angara v. Electoral Commission:230
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
x x x x
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.229
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.When the Court is called upon to undertake a Section 18 review, it is obliged to measure the evidence of the government as against positive constitutional requirements. When the Court finds that there is noncompliance with constitutional requirements, the nullification arising from the finding is not a result of the Court replacing the discretion of the political departments with its own. It is, in fact, a result of the precedence of the Constitution over the acts of the "People's President and the People's representatives."
x x x x
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.231
1) | In the review of an extension of martial law under Section 18, the government bears the burden to show the persistence of rebellion and requirement of public safety must be separately proved by substantial evidence. | |||
a) | The judgment in a Section 18 review is transitory; hence, both requirements must be proved anew. | |||
b) | The rebellion must be that covered in the original Proclamation. Any pile-on rebellion prevents an intelligent Section 18 review. | |||
c) | To prove the persistence of rebellion, the government must show at least one incident wherein the acts of rebellion and the political purpose thereof concur. | |||
d) | To prove the demand of public safety, the endangerment of public safety must be shown to be at a scale that the lesser Commander-in-Chief powers are not sufficient to address the exigency of the situation. | |||
2) | There is lack of sufficient factual basis for the third extension of martial law. | |||
a) | There is insufficient factual basis that the rebellion persists. | |||
i) | Based on statements of the President and the military establishment, Marawi has been liberated. Proclamation No. 216 has thus become functus officio. In fact, the government's submissions do not contain a single evidence of an attack by the DI against military installations or facilities, much less an armed public uprising. | |||
ii) | Even if violent incidents alleged to have been initiated by the ASG, BIFF and NPA are considered, there is no violent incident presented wherein the concurrence of the act of rebellion and political purpose thereof is shown. In this regard, ALL reports that stated a motive for the violent incident were either equivocal or clearly for a private purpose. | |||
iii) | Even if activities of the NPA are considered rebellion, no sufficient information was given to show overt acts of rebellion and the scale of endangerment of public safety for any intelligent Section 18 review. | |||
b) | There is insufficient factual basis that the demands of public safety necessitate the extension of martial law. | |||
i) | The reports localize lawless violence as only having occurred in nine (9) out of twenty-seven (27) provinces in Mindanao. | |||
ii) | Actions and statements by government organs show that endangerment of public safety has not reached a scale requiring martial law — elections are being conducted, people feel safe, investments have risen, and the monthly reports reveal a downward trend in the capability of terrorists. |
It may be noted, however, that Section 18, Article VII of the 1987 Constitution requires the Honorable Court to resolve the petitions challenging martial law within thirty days. More than thirty days have elapsed since the filing of the petitions. Does this therefore mean that the Court is now bereft of power to review the proclamation of martial law?Thus, two years in, the Court's Section 18 review should have already transcended well beyond the question of whether the President correctly declared martial law. That train left the station in Lagman v. Medialdea. Two years in, it is no longer unreasonable to ask for complete, consistent, and accurate information to support a claim that there is sufficient factual basis for a third extension of martial law.
The answer to this question depends on the purpose of the thirty[-]day limit prescribed by the Constitution. The purpose is for the Court to be able to put an end, at the soonest possible time, to the continuing effects of martial law should the Court find the proclamation to be unconstitutional. It should be obvious, however, that once martial law is lifted the thirty[-]day limit no longer serves any purpose. There no longer is any rush to terminate an emergency. The Court therefore is already afforded the luxury of a more leisurely study of whatever issues there might be that need to be resolved.232
Endnotes:
1Rollo (G.R. No. 243522), Vol. 2, pp. 825-826, citing Slide Nos. 8 and 9 of the AFP Presentation.
2 Id. at 826-827, citing Slide Nos. 27 and 26 of the AFP Presentation.
3 Id. at 827.
4 Id. at 828. Emphasis in the original.
5 Id. at 838.
6 Id.
7 Id. at 839.
8 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1 [En Banc, per J. Del Castillo].
9 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018 [En Banc, per J. Tijam].
10 69 Phil. 635 (1940) [En Banc, per J. Laurel].
11 Id. at 641-643. Citations omitted; emphasis and underscoring supplied.
12J. Caguioa, Dissenting Opinion in Lagman v. Pimentel III, supra note 9, at 4.
13Rollo (G.R. No. 243522), Vol. 2, p. 838.
14Rollo (G.R. No. 243522), Vol. 1, p. 265. The entry reads as follows:"Inihatid na sa kani kanilang pamilya ang dalawang SF member na pinagbabaril Patay sa Mother Bagua to sa lungsod noong isang araw.15 During the oral arguments, the Court requested the respondents to submit a glossary of these acronyms to aid in the understanding of the reports. No submission was made.
Sa Impormasyong ibinahagi ng Col. Eros James Uri sa BNFM COT. Kahapon ng tanghali ng bigyan ng Military Honor ang dalawa bago paman mahatid sa kani kanilang mga pamilya sina Pfc. Richard Bendanillo. Na taga Alamada, North Cotabato at Cpl. Nelson Paimalan na taga UP1, Maguindanao. BIFF naman ang nakikitang mga suspek sa pamamaril sa dalawang sundalo."
16 Supra note 10, at 643.
17 See rollo (G.R. No. 243522), Vol. 1, pp. 217-218.
18 Despite the Cour's instructions to the respondents to rectify or supplement these gaps in the evidence in their Memorandum, these incomplete entries were not completed.
19Lagman v. Pimentel III, supra note 9, at 39, citing Lagman v. Medialdea, supra note 8, at 53 and 54.
20People v. Lovedioro, 320 Phil. 481, 489 (1995) [First Division, per J. Kapunan]. Emphasis and underscoring supplied.
21Rollo (G.R. No. 243522), Vol. 1, pp. 215-289.
22Rollo (G.R. No. 243522), Vol. 2, pp. 847-859.
23 Id. at 860.
24 Annexes "2-A" to "2-U" of the OSG Memorandum, id. at 861-881.
25Designation of the incident. The designation by the respondents of the types of the incidents (as those enumerated in the respondents' covering summaries in the column activities, e.g., ambuscade, arson, carnapping, kidnapping, and murder) is adopted throughout this Opinion for consistency.
26Identification of the perpetrator. The reports are grouped according to these criteria:27Statement of motive. A report is considered to have no motive when no motive is stated or when the report states that the "motive of the incident not yet determined," "motive x x x is yet to be determined," or "motive of the incident is still unknown." All reports that state a motive are discussed under the Annexes where they are found. See February 5, 2018 account of liquidation, rollo (G.R. No. 243522), Vol. 1, p. 221; June 25, 2018 account of kidnapping, id. at 237; and July 15, 2018 account of murder, id. at 239, as examples.
- No perpetrator. Entries are considered to have identified no perpetrator when the report does not state any perpetrator at all, states that the violent incident was committed by "[an] unidentified person," simply "armed men," "unidentified perpetrators," or descriptions of similar import.
- Suspected perpetrator. Entries are considered as stating a suspected perpetrator when it states that the violent incident was committed by "[more or less] ten (10) suspected [ASG/BIFF/DI]," "unidentified armed men believed to be [ASG/BIFF/DI] member" or other descriptions of similar import.
- General identification. Entries are considered as having generally identified the perpetrator when it states that the violent incident was committed by "[ASG/BIFF/DI]," "undetermined number of [ASG/BIFF/DI]," "riding-in-tandem [ASG/BIFF/DI]" or other descriptions of similar import.
- Specific identification. Entries are considered to have specifically identified a perpetrator when it names a specific person belonging to either ASG, BIFF or DI as having committed the violent incident described, e.g., "three (3) individuals with one (1) identified as Darmin Nani @ Kulot, an ASG member x x x," "undetermined number of ASG members led by Abdulla Jovel Indanan @ Guru," and "assailants identified as @ Ben, Mungkay, Alaam and Allam."
28Incomplete entries. As shown by the exemplars in pages 8-9, these entries show, on their face, that the text in the cells were incomplete. For purposes of conclusions made below, these incomplete entries are still considered. However, if the missing text prevents the Court from identifying the perpetrator or the motive, even if by context these are supplied, then these entries are considered to have stated no perpetrator or motive, as applicable. See May 6, 2018 account of a kidnapping incident, id. at 285; and May 13, 2018 account of a liquidation incident, id. at 284, in Annex "6" as examples of the treatment for missing text.
29Casualty. Casualty count is a total count including all reported casualty, without distinguishing between government, civilian or armed groups.
30Rollo (G.R. No. 243522), Vol. 1, p. 215.
31 Id. at 216, 219, 220, 223, 226-229, 232-233, 237, 239-243 and 245.
32 Id. at 230.
33 Id. at 216, 223, 225, 229, 231 and 240.
34 Id. at 217-218, 222 and 226.
35 Id. 221, 226-227, 234, 236-238 and 242-245.
36 Id. at 216, 221-222, 224, 232-235, 239, 241 and 244-245.
37 Id. at 219, 224, 227 and 235.
38 Id. at 217. Emphasis and underscoring supplied.
39 Id. at 218. Emphasis and underscoring supplied.
40 Id. at 222. Emphasis and underscoring supplied.
41 Id. at 224. Emphasis and underscoring supplied.
42 Id. at 226. Emphasis and underscoring supplied.
43 Id. at 230. Emphasis and underscoring supplied.
44 Id. at 235. Emphasis and underscoring supplied.
45Rollo (G.R. No. 243522), Vol. 2, p. 881.
46Rollo (G.R. No. 243522), Vol. 1, p. 242. Emphasis and underscoring supplied.
47 Id. at 244. Emphasis and underscoring supplied
48 Id. at 246.
49 Annex "5" contains 76 entries. There were two double entries; hence,only 74 distinct incidents.
50 Id. at 247-250, 254, 256-257, 259-260, 263-264, 266, 269-278 and 281-282.
51 Id. at 248, 251,265, 269, 275 and 279.
52 Id. at 272.
53 Id. at 247-248, 253, 255-256, 258-263,265, 267, 271 and 278-280.
54 Id. at 272 and 274.
55 Id. at 248, 252, 257, 262, 267-271, 273 and 276-277.
56 Id. at 264, 266 and 281.
57 Id. at 264. Emphasis and underscoring supplied.
58 Id. at 266. Emphasis and underscoring supplied.
59 Id. at 272. Emphasis and underscoring supplied.
60 Id. Emphasis and underscoring supplied.
61 Id. at 274. Emphasis and underscoring supplied.
62 Id. at 280. Emphasis and underscoring supplied.
63 Id. at 281. Emphasis and underscoring supplied.
64 Id. at 283.
65 Id. at 285-288.
66 Id. at 285.
67 Id. at 284.
68 Id. at 286-287.
69 Id. at 284-286, 288.
70 Id. at 286.
71 Id. at 287.
72 Id.
73 Id. at 284. Emphasis and underscoring supplied.
74 Id. at 285.
75 Id. at 285-286. Emphasis and underscoring supplied.
76Rollo (G.R. No. 243522), Vol. 2, pp. 861-881.
77 Id. at 880.
78Rollo (G.R. No. 243522), Vol. 1, p. 288.
79 In relation to these incidents, the identification by the PNP data took this form: "The incident was perpetrated by the BIFF."
80Rollo (G.R. No. 243522), Vol. 2, p. 880.
81 See id.
82Rollo (G.R. No. 243522), Vol. 1, p. 289.
83Rollo (G.R. No. 243522), Vol. 1, p. 168, citing Jose Maria Sison, "Great achievements of the CPP in 50 years of waging revolution," available at <https://josemariasison.org/great-achievements-of-the-cpp-in-50-years-of-waging-revolution/> (last accessed February 19, 2019). Underscoring omitted.
84 Id. at 169-170, citing ABS-CBN News, "Early Edition: Joma Sison on 50th anniversary of the CPP" (December 25, 2018), available at: <https://www.youtube.com/watch?v=m2LM5wZa2q8> (last accessed February 19, 2019).
85 Id. at 287.
86 Id. at 224,231, 235 & 253.
87 Id. at 243 and 271.
88 Id. at 226-227, 237-238, 242, 244, 247-248, 251, 253, 255-263, 265, 267-271, 275-280 and 282.
89 Id. at 219. Emphasis and underscoring supplied.
90 Id. at 224. Emphasis and underscoring supplied.
91 Id. at 227. Emphasis and underscoring supplied.
92Rollo (G.R. No. 243522), Vol. 2, pp. 853-854.
93 Id. at 858.
94Rollo (G.R. No. 243522), Vol. 1, pp. 72-85.
95 Id. at 85.
96 See rollo (G.R. No. 243522), Vol. 2, pp. 861-881. Annexes "2-A" to "2-U," Reports of charges filed did not relate to any of the incidents tagged as "Harassment" in Annexes "4" to "7" of the OSG Comment.
97Rollo (G.R. No. 243522), Vol. 1, pp. 73-80 and 84.
98 Id.
99Rollo (G.R. No. 243522), Vol. 2, p. 854.
100People v. Geronimo, 100 Phil. 90 (1956) [En Banc, per J. J.B.L. Reyes].
101 For ASG-attributed incidents, there are ten (10) incomplete entries. For BIFF-attributed incidents, there is one (1) incomplete entry. For DI-attributed incidents, there are four (4) incomplete reports.
102 These are: Twenty-one (21) entries of the sixty-six (66) incidents attributed to the ASG; twenty-eight (28) entries of the seventy-four (74) incidents attributed to the BIFF; and five (5) entries of the ten (10) incidents attributed to the DI.
103 These are: Fifty-seven (57) entries of the sixty-six (66) incidents attributed to the ASG; sixty-seven (67) entries of the seventy-four (74) incidents attributed to the BIFF; and nine (9) entries of the ten (10) incidents attributed to the DI.
104 These are: Twenty (20) entries of the sixty-six (66) incidents attributed to the ASG; twenty-eight (28) entries of the seventy-four (74) incidents attributed to the BIFF; five (5) entries of the ten (10) incidents attributed to the DI.
105 For ASG-attributed incidents, of the nine (9) entiles that supply both perpetrators and motive, seven (7) are equivocal as to the political purpose. For BIFF-attributed incidents, all seven (7) entries that supply both perpetrators and the motive are equivocal as to the political purpose. For DI-attributed incidents, the single (1) entry that supplies both perpetrators and motive is equivocal as to political purpose.
106Rollo (G.R. No. 243522), Vol. 2, p. 848.
107 Id.
108 Id. at 852.
109Rollo (G.R. No. 243522) Vol. 1, p. 37.
110 Id. at 38.
111 Rollo (G.R. No. 243677), p. 22.
112 Id. Emphasis omitted.
113 Id. at 17.
114 Id. at 18.
115Rollo (G.R. No. 243745), p. 22.
116 Id.
117Rollo (G.R. No. 243522), Vol. 2, pp. 832-833. Citations omitted.
118 Supra note 8, at 182.
119 Id.
119a Id.
120J. Caguioa, Dissenting Opinion in Lagman v. Pimantel III, supra note 12, at 3.
121Lagman v. Medialdea, supra note 8, at 197. Emphasis and underscoring supplied.
122J. Caguioa, Dissenting Opinion in Lagman v. Medialdea, supra note 8, at 661.
123 Supra note 8, at 207.
124 Id.
125 Id. at 208-209.
126J. Caguioa, Dissenting Opinion in Lagman v. Medialdea, supra note 122, at 644-645.
127 Annexes "4" to "7," OSG Comment, rollo (G.R. No. 243522), Vol. 1, pp. 215-289.
128Rollo (G.R. No. 243522), Vol. 2, pp. 521-522. Emphasis and underscoring supplied.
129 Id. at 522. Emphasis supplied.
130 Id. at 521. Emphasis supplied.
131 Id. Emphasis supplied.
132 See Annexes "2-A" to "2-U," OSG Memorandum, id. at 861-881.
133 Id. at 854.
134 Id. at 851.
135 Respondents did not address bullet K in either Annex "1" or Annexes "2-A" to "2-U" of the OSG Memorandum.
136Rollo (G.R. No. 243522), Vol. 2, p. 881.
137 Id. at 852.
138 Id.
139 Id.
140 Id. at 858-859.
141Rollo (G.R. No. 243522), Vol. 1, p. 241.
142J. Jardeleza, Dissenting Opinion in Lagman v. Pimentel III, supra note 9, at 15-16.
143Lagman v. Medialdea, supra note 8, at 159, citing Bernas, Joaquin, G., THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 ed., pp. 456-458.
144Lagman v. Pimentel III, supra note 9, at 59, citing Benias, Joaquin, G., THE 1987 CONSTITUTION OF THE PHILIPPINES, A COMMENTARY, 2009 ed., p. 903.
145J. Caguioa, Dissenting Opinion in Lagman v. Pimentel III, supra note 12, at 19-20.
146 Supra note 8, at 159-161, citing II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND Debates, pp. 398 and 402 (1986). Emphasis and underscoring supplied.
147 Id. at 159. Emphasis and underscoring supplied.
148 Supra note 8, at 162. Emphasis supplied.
149J. Caguioa, Dissenting Opinion in Lagman v. Pimentel III, supra note 12, at 27.
150 TSN, January 29, 2019, pp. 109-111.
151Rollo (G.R. No. 243522), Vol. 2, p. 772.
152Rollo (G.R. No. 243522), Vol. 1, p. 173.
153 Id. at 174.
154 Id.
155 Id. at 175.
156 (last accessed February 19, 2019).
157 Id.
158J. Carpio, Dissenting Opinion in Lagman v. Pimentel III, supra note 9, pp. 6-7, 10. Citations omitted; emphasis and underscoring supplied.
159J. Caguioa, Dissenting Opinion in Lagman v. Pimentel III, supra note 12, at 14.
160 Emphasis supplied.
161J. Caguioa, Dissenting Opinion in Lagman v. Pimentel III, supra note 12, at 15.
162 Id.
163 See rollo (G.R. No. 243522), Vol. 1, p. 3; rollo (G.R. No. 243677), p. 5; rollo (G.R. No. 243745), p. 7.
164 G.R. No. 227757, July 25, 2017, 832 SCRA 111 [En Banc, per J. Perlas-Bernabe].
165 359 Phil. 276, 300 (1998) [En Banc, per J. Panganiban].
166Baguilat, Jr. v. Alvarez, supra note 164, at 132-133.
167 Id. at 133.
168Spouses Dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981, 986 (2009) [En Banc, per J. Nachura].
169 149 Phil. 547 (1971) [En Banc, per C.J. Concepcion].
170Lagman v. Medialdea, supra note 8 and Lagman v. Pimentel III, supra note 9.
171J. Caguioa, Dissenting Opinion in Lagman v. Medialdea, supra note 122, at 647.
172J. Jardeleza, Dissenting Opinion in Lagman v. Pimentel III, supra note 142, at 2.
173Tañada v. Cuenco, 103 Phil. 1051, 1067 (1957) [En Banc, per J. Concepcion].
174 <www.congress.pov.ph/download/docs/hrep.house.rules.pdf> (last accessed February 19, 2019).
175Pimentel, Jr. v. Senate Committee on the Whole, 660 Phil. 202, 220 (2011) [En Banc, per J. Carpio].
176Ponencia, p. 15.
177 See id.
178 RULES OF COURT, Rule 128, Sec. 1.
179 Preferably complete, comprehensible, and credible.
180Tolentino, Jr. v, Jallores, G.R. No. 242051, November 5, 2018 (Unsigned Resolution). Citation omitted; emphasis supplied.
181Sandoval II v. Office of the Ombudsman, G.R. No. 241671, October 1, 2018 (Unsigned Resolution). Citation omitted.
182People v. Dela Torre-Yadao, 698 Phil. 471, 487-488 (2012) [En Banc, per J. Abad]. Citations omitted; emphasis supplied.
183Ponencia, p. 16.
184 Id. at 19.
185Ponencia, p. 15.
186 91 Phil. 882, 887 (1952) [En Banc, per J. Bengzon].
187Ponencia, p. 16.
188 Id.
189 522 Phil. 705 (2006) [En Banc, per J. Sandoval-Gutierrez].
190 392 Phil. 618 (2000) [En Banc, per J. Kapunan].
191Ponencia, p. 16.
192 The Commander-in-Chief Clause in the 1935 Constitution reads:There was no counterpart provision to the third paragraph of Section 18 for a review by the Court.ARTICLE VII.—EXECUTIVE DEPARTMENT
SEC. 11. (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. The extension of the proclamation and suspension is subject to the Court's review; probable cause as the quantum of proof
193 5 Phil. 87 (1905) [En Banc, per J. Johnson].
194Montenegro v. Castañeda, supra note 186, at 887.
195Barcelon v. Baker, Jr., supra note 193, at 96-97. Italics in the original.
196 Id. at 97-98.
197 In Lansang, the Court stated: "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 or the writ of habeas corpus) belongs to the President and his "decision is final and conclusive" upon the courts and upon all other persons.' x x x 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; x x x." (Lansang v. Garcia, supra note 169, at 577.)
198 1987 CONSTITUTION, Art. VIII, Sec. 1.
199 Supra note 189, at 740 and 741 -742.
200 Supra note 190, at 640.
201 Id. at 642-644. Emphasis and underscoring supplied.
202Ponencia, p. 20.
203 Id. at 22.
204 Cited in J. Velasco, Dissenting Opinion in Fortun v. Macapagal-Arroyo, 684 Phil. 526, 629-630 (2012).
205 158-A Phil. 1 (1974) [En Banc, per C.J. Makalintal].
206Ponencia, p. 22.
207J. Carpio, Dissenting Opinion in Fortun v. Macapagal-Arroyo, supra note 204, at 597.
208 J. V.V. Mendoza Amicus Memorandum in Fortun, p. 11. He adds: The phrase "imminent danger thereof" was already in the Commander in Chief Clause. What was done was to write it also in the Bill of Rights.
209 Id. at 11-12, citing II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 411-413 (1986).
210 Id. at 9-13.
211Ponencia, p. 17.
212 Id.
213 Id. at 19.
214 Id.
215 See AFP Monthly Reports on the implementation of Martial Law in Mindanao from January to December 2018.
216Barcelon v. Baker, Jr., supra note 193, at 118-119. Emphasis and underscoring supplied.
217Ponencia, p. 27.
218 Id., citing Lagman v. Pimentel III, supra note 9, at 43 and 44.
219 279 Phil. 266 (1991) [En Banc, Per Curiam].
220 Id. at 328-331.
221 410 Phil. 78 (2001) [En Banc, per J. Melo].
222 Id. at 105-106. Citations omitted; emphasis supplied.
223 466 Phil. 482 (2004) [En Banc, per J. Tinga].
224 Id. at 532.
225 Supra note 100.
226 Id. at 95. Citations omitted; emphasis supplied.
227Ponencia, p. 23.
228 Id. at 27.
229 Federalist No. 78, "The Judiciary Department," Alexander Hamilton, available at: <http://avalon.law.yale.edu/18th_century/fed78.asp> (last accessed February 19, 2019). Citations omitted; emphasis supplied.
230 63 Phil. 139 (1936) [En Banc, per. J. Laurel].
231 Id. at 157-158. Emphasis and underscoring supplied.
232 Fr. Joaquin Bernas, Brief of Amicus Curiae in Fortun v. Macapagal-Arroyo, p. 7. Emphasis and underscoring supplied.
As to purpose, martial, law is known in the west as the dramatic solution to a violent situation - to quell a riot, to suppress anarchy, to overcome rebellion. Here in the Philippines, this primary purpose remains, but it has been enlarged to embrace also the extirpation of the ills and conditions which spawned the riot, the anarchy, and the rebellion.1Martial law has been a tempestuous issue in the Philippines since its imposition in 1972. Many correlate the same to being a mere tool for the vesting of unlimited and unchecked powers to a then sitting President.
Chief Justice Fred Ruiz Castro's Speech during the 8th World Peace Through Law Conference held in Manila
The next 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 thus clear that it is the Supreme Court's specific mandate to determine the fact of actual rebellion and the need for public safety. While not supplanting the discretion of the President, the Court must nonetheless rule as to whether the power granted to the President was arbitrarily exercised, and if such was used to the detriment of the affected populace. A reluctance to do so adequately would amount to shirking the Court's responsibility to utilize its review power, while a failure to do so would cause great prejudice to the State. A proper exercise of the same would gain ground in turning the existence of martial law as a remnant of the abusive legacy, into a tool that is used to uphold peace and prosperity when the need calls for it.
In determining the existence of rebellion, the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. x x x Along this line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-Arroyo, concluded that the President needs only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion for purposes of declaring martial law, and that probable cause 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. This is because unlike other standards of proof, which, in order to be met, would require much from the President and therefore unduly restrain his exercise of emergency powers, the requirement of probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts and circumstances without resorting to the calibration of the rules of evidence of which he has no technical knowledge. He [merely] relies on common sense [and] x x x needs only to rest on evidence showing that, more likely than not, a crime has been committed x x x by the accused.12 (Citations omitted and Emphasis supplied)The President found probable cause for the extension of martial law and the suspension of the writ of habeas corpus.
Notwithstanding these gains, the security assessment submitted by the AFP and PNP highlights certain essential facts which indicate that rebellion still persists in Mindanao and that public safety requires the continuation of Martial Law in the whole of Mindanao.In fact, the records readily display the numerous reports15 which were submitted to the President prior to the extension of martial law. These reports described violent incidents, disturbances, and skirmishes carried out by the the Abu Sayyaf Group (ASG), the Bangsamoro Islamic Freedom Fighters (BIFF), the Dawlah Islamiyah (DI), and other Local Terrorist Groups (LTGs) covering the period of January 1, 2018 to December 31, 2018.
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups (collectively labelled as LTG) which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law. At least four (4) bombings/ Improvised Explosive Device (IED) explosions had been cited in the AFP report. The Lamitan City bombing on 31 July 2018 that killed eleven (11) individuals and wounded ten (10) others, the Isulan, Sultan Kudarat IED explosion on 28 August and 02 September 2018 that killed five (5) individuals and wounded forty-five (45) others, and the Barangay Apopong IED explosion that left eight (8) individuals wounded.
The DI forces continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim communities.
While the government was preoccupied in addressing the challenges posed by said groups, the CTG which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule x x x. On the part of the military, the atrocities resulted in the killing of eighty-seven (87) military personnel and wounding of four hundred eight (408) others.
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom activities to finance their operations x x x.
The foregoing merely illustrates in general terms the continuing rebellion in Mindanao. x x x.
A further extension of the implementation of Martial Law and suspension of the privilege of the writ of habeas corpus in Mindanao will enable the AFP, the PNP, and all other law enforcement agencies to finally put an end to the on-going rebellion in Mindanao and continue to prevent the same from escalating in other parts of the country. We cannot afford to give the rebels any further breathing room to regroup and strengthen their forces. Public safety indubitably requires such further extension in order to avoid the further loss of lives and physical harm, not only to our soldiers and the police, but also to our civilians. Such extension will also enable the government and the people of Mindanao to sustain the gains we have achieved thus far, ensure the complete rehabilitation of the most affected areas therein, and preserve the socio-economic growth and development now happening in Mindanao.
For all of the foregoing reasons, I implore the Congress of the Philippines to further extend the proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao for a period of one (1) more year from 1 January 2019 to 31 December 2019, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution.14 (Emphasis supplied)
These incidences, taken altogether, showcase the insurgents' overall purpose of furthering rebellion in Mindanao. To further shed light on the connection between the aforementioned acts of harassment, kidnapping, arson, and other violent acts to rebellion, the AFP, through Major General Pablo. M. Lorenzo, submitted a Letter22 to the Court clarifying the same, to wit:
- No less than 181 persons in the martial law Arrest Orders have remained at large.
- Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less than 2 months is a testament on how lethal and ingenious terrorist attacks have become.
- On October 5, 2018, agents from the Philippine Drug Enforcement Agency (PDEA) who conducted an anti-drug symposium in Tagoloan II, Lanao del Sur, were brutally ambushed, in which five (5) were killed and two (2) were wounded.
- The DI continues to conduct radicalization activities in vulnerable Muslim communities and recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in these areas immensely disrupted the government's delivery of basic services and clearly needs military intervention.
- Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their express kidnappings. As of December 6, 2018, there are still seven (7) remaining kidnap victims under captivity.
- Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of communist rebel insurgency in the country. Eight (8) out of the 14 active provinces in terms of communist rebel insurgency are in Mindanao.
- The Communist Terrorist Rebel Group in Mindanao continues its hostile activities while conducting its organization, consolidation and recruitment. In fact, from January to November 2018, the number of Ideological, Political and Organizational (IPO) efforts of this group amounted to 1,420, which indicates their continuing recruitment of new members. Moreover, it is in Mindanao where the most violent incidents initiated by this group transpire. Particularly, government security forces and business establishments are being subjected to harassment, arson and liquidations when they defy their extortion demands.
- The CTRG's exploitation of indigenous people is so rampant that Lumad schools are being used as recruiting and training grounds for their armed rebellion and anti-government propaganda. On November 28, 2018, Satur Ocampo and 18 others were intercepted by the Talaingod PNP checkpoint in Davao del Norte for unlawfully taking into custody 14 minors who are students of a learning school in Sitio Dulyan, Palma Gil, in Talaingod town. Cases were filed against Ocampo's camp for violations of Republic Act (R.A.) No. 10364, in relation to R.A. No. 7610, as well as violation of Article 270 of the Revised Penal Code (RPC), due to the Philippine National Police's (PNP) reasonable belief that the school is being used to manipulate the minds of the student's rebellious ideas against the government.21
The word "harassment" is a military term for a type of armed attack whether the perpetrators fire at a stationary military personnel, auxiliaries, or installations for a relatively short period of time (as opposed to a full armed attack) for the purpose of inflicting casualties, as diversionary effort to deflect attention from another tactical undertaking, or to project presence in the area. x x x This is a common tactic employed by the Communist Terrorist Group, the ASG, DI, and BIFF. On the other hand, kidnapping is undertaken particularly by the ASG to finance its operational and administrative expenses in waging rebellion. x x x With regard to arson, the tactic is commonly used by the same rebel groups for various purposes such as intimidating people who are supportive of the government, as punitive action for those who refuse to give in to extortion demands, or simply to terrorize the populace into submission. All these activities are undoubtedly undertaken in furtherance of rebellion. x x x. But as mentioned earlier, the events in the lists were not selected but rather constitute the complete record of all violent incidents that occurred in 2018 that are attributed to a specific threat group or any of its members. The argument advanced is that these incidents should be viewed in their totality and not as unrelated, isolated events. These violent incidents, when combined with the recorded armed encounters or clashes between government troops and rebel groups, and taking into account the substantial casualties resulting from these combined events, show a consistent pattern of armed uprising or rebellion in Mindanao.23 (Emphasis supplied)Unsurprisingly, a quick run-through of the offenses included in the reports from the AFP will show a stark and disturbing similarity with the actions used as basis for the initial proclamation of martial law and its subsequent second extension.
(1) Attacks on various government and privately owned facilities.On the other hand, in Lagman v. Pimentel III,36 the President based his request for the second extension of martial law on reports which indicated that various LTGs: (1) continuously offered armed resistance against the government, (2) actively recruited and trained new members, and (3) executed retaliatory attacks and bombings.37 The following excerpts from the report emphasize the serious threat these various LTGs posed to our country's liberty, viz: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; 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 Amai Pakpak Hospital. They held hostage the employees of the Hospital and took over the PhilHealth office located thereat; The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set ablaze; Lawless armed groups likewise ransacked the Landbank of Philippines and commandeered one of its armored vehicles.26(2) Forcible entry and assaults on personnel.At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage 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).27(3) Facilitating inmate escapes.The Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail.28(4) Interruption/blackouts of energy supplies.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.)29(5) Illegal/aggressive occupation of territories.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.30(6) Ambushes/ambuscades.From 1800H 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.31(7) Bomb threats.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.32(8) Kidnapping/taking of hostages.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.33(9) Forcible recruitment.They are also preventing Maranaos from leaving their homes and forcing young male Muslims to join their groups.34(10) Murders.A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail; About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless groups.; Latest information indicates 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 of this 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 t lawless armed groups are searching for Christian communities in Marawi City to execute Christians.35
(q) Mindanao remains the hotbed of communist rebellion considering that 47% of its manpower, 48% of its firearms, 51% of its controlled barangays and 45% of its guerrilla fronts are in this region. Of the 14 provinces with active communist insurgency, 10 are in Mindanao. Furthermore, the communist rebels' Komisyon Mindanao (KOMMID) is now capable of sending augmentation forces, particularly "Party Cadres," in Northern Luzon.It is readily observable that, with only minor deviation, the facts alleged by respondents in their reports show a clear and bothersome parallel with those presented as findings of fact in the previous two cases.39 The similarities of the factual circumstances between the initial proclamation, the second extension, and the herein third extension only bolster the latter's validity.
(r) The hostilities initiated by the communist rebels have risen by 65% from 2016 to 2017 despite the peace talks. In 2017 alone, they perpetrated 422 atrocities in Mindanao, including ambush, raids, attacks, kidnapping, robbery, bombing, liquidation, land mine/IED attacks, arson, and sabotage, that resulted in the death of 47 government forces and 31 civilians. An ambush in Bukidnon in November 2017 killed one PNP personnel, two civilians and a four-month old baby. [Fifty-nine] (59) incidents of arson committed by the Communist rebels against business establishments in Mindanao last year alone destroyed P2.378 billion worth of properties. Moreover, the amount they extorted from private individuals and business establishments from 2015 to the first semester of 2017 has been estimated at P2.6 billion.38 (Citations omitted and Emphasis supplied)
To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all-encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has possession of documents and information classified as "confidential", the contents of which cannot be included in the Proclamation or Report for reasons of national security. These documents may contain information detailing the position of government troops and rebels, stock of firearms or ammunitions, ground commands and operations, names of suspects and sympathizers, etc. In fact, during the closed door session held by the Court, some information came to light, although not mentioned in the Proclamation or Report. But then again, the discretion whether to include the same in the Proclamation or Report is the judgment call of the President. In fact, petitioners concede to this. During the oral argument, petitioner Lagman admitted that the assertion of facts [in the Proclamation and Report] is the call of the President.Furthermore, as explained emphatically in Lagman v. Medialdea,45 the mere 'presence of inconsistencies and ambiguities in the reports should not operate to detract from the bigger picture these reports are painting. After all, the determination of the absolute correctness, accuracy, or precision of the facts which were made the basis of the imposition of martial law or its extension is not within the power of this Court to ascertain.46
It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the President as [C]ommander-in-[C]hief of the Armed Forces to appraise these [classified evidence or documents reports] and be satisfied that the public safety demands the suspension of the writ." Significantly, respect to these so-called classified documents is accorded even "when [the] authors of or witnesses to these documents may not be revealed.44 (Citations omitted and emphasis supplied)
The crime of rebellion is complete the very moment a group rises publicly and takes up arms against the Government, for the purpose of overthrowing the latter by force. The Revised Penal Code (RPC) speaks of the intent or purpose to overthrow the Government as the subjective element, while the acts of rising publicly and taking arms against the Government, which is milder than the more aggressive phrase "levies war" used in the definition of treason under the RPC,51 is the normative element of the offense,52i.e. related to the norms or standards given.
- That there be a (a) public uprising and (b) taking arms against the Government; and
- 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 and prerogatives.
One of the means by which rebellion may be committed, in the words of said article 135, is by "engaging in war against the forces of the government" and 'committing serious violence' in the prosecution of said 'war'. These expressions imply everything that war connotes, namely: resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappincss that war carries in its wake — except that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers. Being within the purview of "engaging in war" and 'committing serious violence', said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offenses, but only one crime — that of rebellion plain and simple.In the consolidated petition,54 with respect to the "hostile activities during the extended period of martial law" committed or attributed to the ASG, - the BIFF, the DI, and other terrorist groups, petitioners alleged that both the military and the President failed to connect these "hostile activities" to rebellion. Petitioners mentioned that the reported acts, among others, either lack clarification, lack some or all of the elements of rebellion, or are even completely unrelated or do not constitute the offense. Some of these incidents cited as questionable in relation to the finding of rebellion include, among others, four bombings/IED explosions, radicalization and recruitment activities, acts of harassment against government installations, liquidation operations and arson attacks as part of extortion schemes, kidnap-for-ransom activities of major ASF factions in Sulu.
Now that we find that what article 135 provides is not engaging in war, but merely engaging in combat, and knowing the vast difference between war and mere combat, there is the possibility that some of the considerations and conclusions made in that majority resolution in the Hernandez case may be affected or enervated. In other words, our law in rebellion contemplates on only armed clashes, skirmishes, ambuscade, and raids, not the whole scale conflict of civil war like that between the Union and Confederate forces in the American Civil War, where the rebels were given the status of belligerency under the laws of war, and consequently, were accorded much leeway and exemption in the destruction of life and property and the violation of personal liberty and security committed during the war.
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.The continuance and lingering effects of rebellion can be seen from the tangible incidents still attendant even at this later juncture. As mentioned earlier, the letter74 of Major General Pablo M. Lorenzo to Solicitor-General Jose C. Calida showed the enumeration of a high number of violent incidences. These reported acts constitute the public uprising and a show of force against the government that would indicate that the rebellion has yet to be quelled. Martial law will be beneficial and not prejudicial in bringing safety and security to the Mindanao region, especially as already manifested by the respondents, there have been orders issued during both the proclamation of martial law in Mindanao and the subsequent extension, which have not yet completed the implementation phase.
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.73
The Constitution now expressly declares, "A state of martial law does not suspend the operation of the Constitution." Neither does a state of martial law supplant the functioning of the civil courts or legislative assemblies. Nor does it authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, or automatically suspend the writ. There is therefore no dispute that the constitutional guarantees under the Bill of Rights remain fully operative and continue to accord the people its mantle of protection during a state of martial law. In case the writ is also suspended, the suspension applies only to those judicially charged for rebellion or offenses directly connected with invasion. (Emphasis supplied)In Pequet v. Tangonan,77 the Supreme Court highlighted the call to the military to exercise care and prudence to avoid incidents involving illegal and involuntary restraint, and that martial law was precisely provided to assure the country's citizenry that the State is not powerless to cope with invasion, insurrection or rebellion or any imminent danger of its occurrence. When resort to it is therefore justified, as in the case at bar, it is precisely in accordance with and not in defiance of the fundamental law.78 In fact, this is even more reason then for the rule of the law to be followed.79
Endnotes:
1 Bernas, J.J. The 1987 Constitution of the Philippines: A Commentary (2009 ed.) p. 912.
2 Reynolds, John Emplire, Emergency, and the Law (last published May 27, 2014), p. 88.
3 Bernas, J.J. The 1987 Constitution of the Philippines: A Commentary (2009 ed.) p. 916.
4 Id. at p. 917.
5Section 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.
x x x x
6 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
7 Id.
8 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1, 176-177.
9 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
10 See Lagman v. Pimentel III (2018) & Lagman v. Medialdea (2017).
11Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
12 Id. at p. 184.
13Rollo (G.R. No. 243522), Vol. 1, pp. 51-55.
14 Id. at 108-112.
15Rollo (G.R. No. 243522), Vol. 1, pp. 214-289.
16 Id. at 215-245.
17 Id. at 246-282.
18 Id. at 283-288.
19 Id. at 289.
20Rollo (G.R. No. 243522), Vol. 2, pp. 860-881.
21 Id. at 832-833.
22 Id. at 847-859.
23 Id. at 853-854.
24 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
25 Id. at 128-130.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
37 Id.
38 Id.
39Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
40Rollo (G.R. No. 243522), Vol. 1, pp. 20-21.
41Rollo (G.R. No. 243522), Vol. 1, pp. 11-12.
42Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1, 179.
43 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
44 Id. at 200-201.
45 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
46 Id. at 179.
47 Id. at 178.
48Ladlad v. Velasco, G.R. No. 172070, June 1, 2007, 523 SCRA 318, 336.
49 Section 2 of R.A. No. 6968, 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 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.
50Ladlad v. Senior State Prosecutor, G.R. No. 172070-72, June 1, 2007, 523 SCRA 318, 336.
51 Ateneo Law Journal, Judge Jesus P. Morfe, Rebellion May Be Simple or Complex pp. 164-175, p. 165.
52 Reyes, The Revised Penal Code Book Two, 18th Ed. 2012, p. 87, citing People v. Cube, C.A. 46 O.G. 4412; People v. Perez, C.A., G.R. No. 8186-R, June 30, 1954.
53 G.R. No. L-8936, October 23, 1956, 100 Phil. 90 (1956).
54Rollo (G.R. No. 243522), Vol. 1, p. 131.
55 Reyes, The Revised Penal Code Book Two, 18th Ed. 2012, p. 86, citing People v. Cube, C.A. 46 O.G. 4412; People v. Perez, C.A., G.R. No. 8186-R, June 30, 1954.
56 N. KALYVAS, STATHIS & Balcells, Laia. (2010). International System and Technologies of Rebellion: How the End of the Cold War Shaped Internal Conflict. American Political Science Review. 104. 415 - 429. 10.1017/S0003055410000286.
57 Id.
58 Id. at 113.
59 Id. at 115.
60 Id.
61 Id.
62 Id.
63 Id.
64 Moises Naim, The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being in Charge Isn't What it Used to Be 2014, 19.
65 Id.
66 Id.
67 Id.
68 Id. at 121.
69 Id. at 120.
70Rollo (G.R. No. 243522), Vol. 1, p. 12.
71 G.R. Nos. 231658, 231771, 231774, July 4, 2017, 829 SCRA 1, 190, citing Report p. 1, 1st par.
72 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
73 Id.
74Rollo (G.R. No. 243522), Vol. 2, pp. 847-859.
75Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1, 207.
76 G.R. No. 190293, March 20, 2012, 668 SCRA 504, 561-562.
77 G.R. No. L-40970, August 21, 1975, 66 SCRA 216.
78 Id. at 219.
79 Id.
80 Survey of Feuding Families and Clans in Selected Provinces in Mindanao, Jamail A. Malian MSU-Institute of Technology. P. 36 (Rido: Clan Feuding and Conflict Management in Mindanao - Wilfredo Magno Torres III, Editor, 2007 The Asia Foundation.
81https://www.researchgate.net/profile/Jon_Abbink2 (last accessed: February 16, 2019).
82 Big War, Small Wars: The Interplay of Large-scale and Community Armed Conflicts in Five Central Mindanao Communities Jose Jowel Canuday p. 256.
83 Id.
GESMUNDO, J.:
Again, before the Court are several petitions assailing the extension of the period of martial law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one (1) more year, i.e. from January 1 to December 31, 2019 granted by Congress upon the request of the President.
As the Constitution remains supreme and ultimate, the Court will fervently abide by its duty to review the sufficiency of the factual basis for the extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus. Time and again, the Court will serve as the penultimate safeguard on the powers of the two other co-equal branches of government.
For reasons discussed below, I vote to dismiss the petitions.
The Constitutional power to extend the period of martial law and suspension of privilege of writ of habeas corpus
The 1987 Constitution grants the Congress of the Philippines (Congress, for brevity) the power to shorten or extend the President's proclamation of martial law or suspension of the privilege of the writ ofhabeas corpus. Section 18, Article VII of the 1987 Constitution, in pertinent part, states:
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.As discussed in Lagman v. Pimentel III,2 Congress is given the constitutional authority to extend the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. The provision does not specify the number of times Congress is allowed to approve an extension of such proclamation or suspension. Neither does the provision fix the period of the extension of the proclamation and suspension. It clearly gives Congress the authority to decide on its duration; thus, the provision stating that the extension shall be "for a period to be determined by the Congress."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 or the extension thereof, and must promulgate its decision thereon within thirty clays from its filing.1 (emphasis supplied)
Hence, these three (3) limitations must be present in any extension of the proclamation of martial law or suspension of the privilege of the writ of habeas corpus. Failure to comply with any of these limitations shall result to the invalidity and nullity of the extension of such proclamation and suspension.
- That the extension should be upon the President's initiative;
- That it should be grounded on the persistence of the invasion or rebellion and the demands of public safety; and
- That it is subject to the Court's review of the sufficiency of its factual basis upon the petition of any citizen.5
In determining the existence of rebellion, the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers. Along this line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-Arroyo, concluded that the President needs only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion for purposes of declaring martial law, and that probable cause 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. This is because unlike other standards of proof, which, in order to be met, would require much from the President and therefore unduly restrain his exercise of emergency powers, the requirement of probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts and circumstances without resorting to the calibration of the rules of evidence of which he has no technical knowledge. He [merely] relies on common sense [and] x x x needs only to rest on evidence showing that, more likely than not, a crime has been committed x x x by the accused."12 (emphasis supplied)Verily, in reviewing the present petitions, the Court must always bear in mind that it must determine whether or not the President is convinced based on the quantum of proof of probable cause that, more likely than not, a rebellion was committed or is being committed.
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency." Possibly, by. the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the day as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.15In any case, the compliance with the second limitation under Sec. 18 of Art. VII - whether the extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus is grounded on the persistence of an invasion or rebellion and the demands of public safety - is the primordial issue that must be determined by the Court.
Art. 134. Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is committed by rising publicly and talcing 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 tiny of their powers or prerogatives.Thus, the elements of the crime of rebellion are as follow:
1. That there be (a) public uprising, and (b) taking up arms against the Government; andOn the other hand, Art. 135 of the RPC, as amended by Republic Act (R.A.) No. 6968,17 states the following means to commit the crime of rebellion and the penalties for different participations thereof:
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.16
Art. 135. Penalty for rebellion, insurrection or coup d'etat. — Any person who promotes, maintains, or heads rebellion or insurrection shall suffer the penalty of reclusion perpetua.In People v. Hernandez, et al.,18 the Court explained that in the crime of rebellion, there may be several acts committed such as: resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, in furtherance of the internal struggle. Nonetheless, there is only one crime of rebellion because said several acts were committed in furtherance of the purpose of rebellion, to wit:
Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of reclusion temporal.
Any person who leads or in any manner directs or commands others to undertake a coup d'etat shall suffer the penalty of reclusion perpetua.
Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d'etat shall suffer the penalty of prision mayor in its maximum period.
Any person not in the government service who participates, or in any manner supports, finances, abets or aids in undertaking a coup d'etat shall suffer the penalty of reclusion temporal in its maximum period.
When the rebellion, insurrection, or coup d'etat shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, as performed similar acts, on behalf or the rebels shall be deemed a leader of such a rebellion, insurrection, or coup d'etat.
One of the means by which rebellion may be committed, in the words of said Article 135, is by "engaging in war against the forces of the government" and "committing serious violence" in the prosecution of said "war". These expressions imply everything that war connotes, namely; resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake — except that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers. Being within the purview of "engaging in war" and "committing serious violence", said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offense, but only one crime — that of rebellion plain and simple. Thus, for instance, it has been held that "the crime of treason may be committed by executing either a single or similar intentional overt acts, different or similar but distinct, and for that reason, it way be considered one single continuous offense.Based on the purpose of the crime of rebellion - which is to remove from the allegiance to Government or its laws, the territory of the Philippines or any part thereof, or any body of land, naval or other armed forces - several acts may be committed necessarily in furtherance of the rebellion. But, even though several acts were committed, these acts still constitute as one crime of rebellion as long as they were committed in furtherance of their secessionist goal.
Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows necessarily that said acts offer no occasion for the application of Article 48, which requires therefor the commission of, at least, two crimes. Hence, this court has never in the past, convicted any person of the "complex crime of rebellion with murder". What is more, it appears that in every one of the cases of rebellion published in the Philippine Reports, the defendants were convicted of simple rebellion, although they had killed several persons, sometimes peace officers.19 (emphases supplied and citations omitted)
The Court's decision of 9 July 1990 rules that the arrest of Rolando Dural (G.R. No. 81567) without warrant is justified as it can be said that, within the contemplation of Section 5(a), Rule 113, he (Dural) was committing an offense, when arrested, because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership is penalized, and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, a continuing offense, thus:Likewise, the rebellion contemplated under the Constitution for the declaration or extension of the proclamation of martial law or suspension of the privilege of the writ of habeas corpus is not confined to the traditional concept of armed struggle or in the theater of war. As early as United States v. Lagnason22 the Court ruled that there may be a state of rebellion not amounting to a state of war."The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) 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 x x x."Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, held shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.21 (emphases supplied)
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?The Constitutional framers had the astute foresight to consider the possibility that modern rebellion would involve a more sophisticated manner of execution with the use of advanced technology and even mass media. They discussed the possibility that rebels may conduct isolated attacks in different places orchestrated to paralyze the country and destabilize the government. In such case, Justice Regalado suggested it would be a matter of factual appreciation and evaluation of the President, based on the circumstances, in determining if rebellion exists. Thus, the traditional concept of rebellion, where there is actual use of weapons concentrated in a single place, is not the sole concept of actual rebellion envisioned under the 1987 Constitution.
MR. REGALADO: At the early stages, where there was just an attempt to paralyze the government or some sporadic incidents in other areas but without armed public uprising, that would only amount to sedition under Article 138, or it can only be considered as a tumultuous disturbance.
MR. DE LOS REYES: The public uprising are not concentrated in one place, which vised to be the concept of rebellion before.
MR. REGALADO: No.
MR. DE LOS REYES: But the public uprisings consists of isolated attacks in several places - for example in one camp here; another in the province of Quezon; then in another camp in Laguna; no attack in Malacanang - but there is complete paralysis of the industry of the whole country. If we place these things together, the impression is clear - 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 rebellion.23 (emphases supplied)
The magnitude of the atrocities already perpetrated by these rebel groups reveals their capacity to continue inflicting serious harm and injury, both to life and property. The sinister plans of attack, as uncovered by the AFP, confirm this real and imminent threat. The manpower and armaments these groups possess, the continued radicalization and recruitment of new rebels, the financial and logistical build-up cited by the President, and more importantly, the groups' manifest determination to overthrow the government through force, violence and terrorism, present a significant danger to public safety.In this case, the President relied on several military and classified reports and documents, particularly, the report provided by the Deputy Chief of Staff for Intelligence, OJ2, AFP. The detailed and extensive AFP report presents the violent incidents committed by Abu Sayyaf Group (ASG), the Bangsamoro Islamic Freedom Fighters (BIFF), and the Dawlah Islamiyah (DI), and other such violent incidents committed by threat groups. These violent acts cover the period between January 1 to December 31, 2018, to wit:
In Lagman, the Court recognized that the President, as Commander-in-Chief, has possession of intelligence reports, classified documents and other vital information which he can rely on to properly assess the actual conditions on the ground, thus:It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the President as [C]ommander-in-[C]hief of the Armed Forces to appraise these [classified evidence or documents] reports and be satisfied that the public safety demands the suspension of the writ." Significantly, respect to these so-called classified documents is accorded even "when [the] authors of or witnesses to these documents may not be revealed."
In fine, not only docs the President have a wide array of information before him, he also has the right, prerogative, and the means to access vital, relevant, and confidential data, concomitant with his position as Commander-in-Chief of the Armed Forces.24 (emphases supplied)
a. The ASG-Initiated Violent Incidents resulted to: (a) 17 soldiers and 19 civilians wounded in action; (b) 3 civilians missing; and (c) 9 soldiers, 22 civilians, and 2 ASG killed.25 The following are the specific incidents divided by province:The report shows that violent attacks still persist in Mindanao and these are committed by the very same groups that committed rebellion in Lagman v. Medialdea and Lagman v. Pimentel III. In its Letter29 dated February 1, 2019, even the PNP confirmed that these groups continuously commit atrocities in Mindanao.b. The BIFF-Initiated Violent Incidents resulted in: (a) 21 soldiers, 2 CAA, 5 civilians, and 2 BIFF wounded in action; (b) 2 civilians missing; and (c) 4 soldiers, 3 CAA, 8 civilians, and 9 BIFF killed.26 The following are the specific incidents divided between North Cotabato and Maguindanao:
- Basilan: 4 ambuscades, 1 arson, 1 grenade throwing, 2 harassments, 3 IED land mining/explosions, 1 attempted kidnapping, 3 liquidations, and 3 murders.
- Sulu: 1 ambuscade, 1 carnapping, 14 harassments, 5 IED landmining/explosions, 1 attempted kidnapping, 15 kidnappings, 3 liquidations, and 3 shootings.
- Tawi-Tawi: 1 murder.
- Zamboanga Peninsula: 1 kidnapping and 1 shooting.
- Other Provinces: 2 kidnappings.
c. The DI-Initiated Violent Incidents resulted in: (a) 2 soldiers and 91 civilians wounded in action; (b) 1 civilian missing; and (c) 7 civilians killed.27 The following are the specific incidents for each DI faction:
- North Cotabato: 1 ambuscade, 1 firefight/attack, 9 harassments, 2 IED land mining/roadside bombings, and 1 liquidation.
- Maguindanao: 2 arsons, 3 firefights/attacks, 3 grenade throwing, 31 harassments, 19 IED landmining/roadside bombings, 1 kidnapping, 1 murder, 1 shooting, and 1 liquidation.
- DI-Maute: 1 firefight/attack, 1 kidnapping, 1 liquidation, 1 shooting, and 1 strafing.
- DI-Maguid: 1 IED landmining/explosion.
- DI-Turaifie: 1 firefight/attack and 3 IED land mining/ explosions.28
In the same reference material, the DND reports the following violent incidents for the period January 1 to November 30, 2018 relative to the continuing rebellion being conducted by the communist groups:
Type of Incident Number of IncidentsAmbuscade 6Arson 2Firefighting/Attack 4Grenade Throwing 4Harassment 54IED/Landmining Explosion 31Attempted Kidnapping 1Kidnapping 19Liquidation 9Murder 4Shooting 3TOTAL 13731
The AFP explained how the violent attacks of these rebel groups were committed in furtherance of rebellion, as follows:
Type of Incident Number of IncidentsAmbush 15Raid 4Nuisance Harassment 41Harassment 29Disarming 5Landmining 8SPARU Operations 18Liquidation 23Kidnapping 5Robbery/Hold-Up 1Bombing 1Arson 27TOTAL 17732
The word "harassment" is a military term for a type of armed attack where the perpetrators fire at stationary military personnel, auxiliaries, or installations for a relatively short period of time (as opposed to a full armed attack) for the purpose of inflicting casualties, as a diversionary effort to deflect attention from another tactical undertaking, or to project presence in the area. At times, like in the case of the November 10, 2018 incident in Marogong, Lanao del Sur, harassments or attacks are directed against the MILF or any group perceived to be an ally or is supportive to the government. Harassments are undertaken not in isolation but as part of a bigger military strategy. This is a common tactic employed by the Communist Terrorist Group, the ASG, DI, and BIFF. On the other hand, kidnapping is undertaken particularly by the ASG to finance its operational and administrative expenses in waging rebellion. As shown in the presentation during the oral arguments, the ASG has amassed an estimated Php41.9 million in ransom proceeds for 2018 alone. With regard to arson, the tactic is commonly used by the same rebel groups for various purposes such as intimidating people who are supportive of the government, as punitive action for those who refuse to give in to extortion demands, or simply to terrorize the populace into submission. All these activities arc undoubtedly undertaken in furtherance of rebellion.33 (emphasis supplied)Indeed, harassment, kidnapping for ransom, extortion, and arson are contemporary tactics within the definition of the armed struggle in rebellion. As stated earlier, the Constitutional framers already envisioned that modern rebellion would involve a more sophisticated manner of execution and the possibility that rebels may conduct isolated attacks in different places orchestrated to paralyze the country and destabilize the government. These separate acts of violence should be woven and taken together in furtherance of the rebel groups' purpose of seceding from the State.
The office of the Deputy Chief of Staff for Intelligence, AFP (OJ2) is the depository of all information collected by various AFP units on the activities of groups that threaten national security. These AFP units obtain information through formal (reports of government agencies performing security and law enforcement functions) as well as informal channels (information networks in areas of interest and informants who are members of the threat groups). The information through these sources are collected to gain situational awareness particularly on enemy intentions and capabilities that become the basis of military operations and policy making. x x x.Manifestly, the information provided by the AFP is not merely raw data from their sources; rather, they are validated through different methods. Also, the OJ2 or the AFP Office of the Deputy Chief of Staff for Intelligence is tasked with the duty to ensure that these data are consolidated and verified. While there may be some minor discrepancies on these data, as some are sourced from spot reports, these data are subsequently validated through progress reports and detailed special reports.
Nevertheless, the information gathered by various AFP units are expected to have undergone validation before being forwarded to OJ2 although there are instances where reports come from a single source, i.e., they come from a single informant and there is no way to validate the accuracy and veracity of its contents. It is for this reason that the AFP has a method of assessing the reliability of its informants based on their track record.
When it conies to violent incidents as well as armed clashes or encounters with threat groups, AFP units are required to submit reports as soon as possible. Called "spot reports," they contain information that are only available at that given reporting time window. This practice is anchored on the theory that an incomplete information is better than a complete information that is too late to be used. Subsequent developments are communicated through "progress reports" and detailed "special reports."36 (emphases supplied)
[T]he security assessment submitted by the AFP and PNP highlights certain essential facts which indicate that rebellion still persists in Mindanao and that public safety requires the continuation of Martial Law in the whole of Mindanao.Likewise, as to the fact that there was no criminal case of rebellion filed in Mindanao from January 1 to December 31, 2018, suffice it to state that this does not diminish the existence of actual rebellion therein because: first, there is nothing in the constitutional provision that requires there be criminal cases filed in court to prove actual rebellion. As discussed in Lagman v. Medialdea, it is only required that the President has probable cause to believe that an actual rebellion persists. Second, even as there was no rebellion case filed during the existence of martial law and yet the aimed conflict continues, this demonstrates that the rebellion had not ceased and the perpetrators were still on the loose. It was reported by the Office of the Solicitor General (OSG) that a total of 181 persons in the martial law arrest orders have remained at large.38
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups (collectively labeled as LTG) which seek to promote global rebellion, continue to defy the government by perpetrating hostile activities during the extended period of Martial Law...
The DI forces continue to pursue their rebellion against the government by furthering the conduct of their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim communities.
While the government was preoccupied in addressing the challenges posed by said groups, the CTG, which has publicly declared its intention to seize political power through violent means and supplant the country's democratic form of government with Communist rule, took advantage and likewise posed serious security concerns...
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom activities to finance their operations...
The foregoing merely illustrates in general terms the continuing rebellion in Mindanao.37
During the oral arguments, it was affirmed that rebellion persists in Mindanao and that the armed struggle of the rebel groups threatens public safety, to wit:
- No less than 181 persons in the martial law Arrest Orders have remained at large.
- Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less than 2 months is a testament on how lethal and ingenious terrorist attacks have become.
- On October 5, 2018, agents from the Philippine Drug Enforcement Agency (PDEA) who conducted an anti-drug symposium in Tagoloan II, Lanao del Sur, were brutally ambushed, in which five (5) were killed and two (2) were wounded.
- The DI continues to conduct radicalization activities in vulnerable Muslim communities and recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in these areas immensely disrupted the government's delivery of basic services and clearly needs military intervention.
- Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their express kidnappings. As of December 6,2018, there are still seven (7) remaining kidnap victims under captivity.
- Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of communist rebel insurgency in the country. Eight (8) out of the 14 active provinces in terms of communist rebel insurgency are in Mindanao...41
ASSOCIATE JUSTICE BERNABE:The magnitude of the atrocities continuously perpetrated by these rebel groups reveals their capacity to continue inflicting serious harm and injury, both to life and property. The sinister plans of attack, as uncovered by the AFP, confirm this real and imminent threat. The manpower and armaments these groups possess, the continued radicalization and recruitment of new rebels, the financial and logistical build-up cited by the President, and more importantly, the groups' manifest determination to overthrow the government through force, violence and terrorism, present a significant danger to public safety.43Or based on current developments, can you say that the situation contemplated in Proclamation 216 has already changed?SOLICITOR GENERAL CALIDA:There is still a need, Your Honor, to extend the martial law because of the on-going threat to public safety, Your Honor, and the rebellion waged by the, not only by the communist terrorist groups but as well as the local terrorist groups, especially those groups that were DAESH-inspired, Your Honor.ASSOCIATE JUSTICE BERNABE:Except of course that the leadership of Hapilon and the Maute brothers have already changed?SOLICITOR GENERAL CALIDA:Yes, Your Honor.ASSOCIATE JUSTICE BERNABE:Now, in the Comment, respondents reference that December 8, 2017 letter of the President which justified the second extension by saying that, I quote: "Despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization." Are the activities of the Maute Hapilon group still a consideration now for the third extension?SOLICITOR GENERAL CALIDA:Well, because of their recruitment, Your Honor, their strength is again, they have recruited more members, Your Honor. In fact, the Jolo bombing incident yesterday is in Jolo, Your Honor, and this is the hotbet of ASG insurgency, Your Honor.ASSOCIATE JUSTICE BERNABE:All right. Now, can you give us specifics such as an estimate of how many of these remnants are left or report of what activities were recently conducted? You can probably just state this in the memorandum.SOLICITOR GENERAL CALIDA:Yes, Your Honor, we will do that.ASSOCIATE JUSTICE BERNABE:Okay. Now, under the Revised Penal Code you have the purpose of the uprising or movement to be considered as a rebellion and you have to remove from the allegiance to the government the territory of the Philippines, or deprive the Chief Executive or Congress of any of their powers and prerogatives, is that correct?SOLICITOR GENERAL CALIDA:That's correct, Your Honor.ASSOCIATE JUSTICE BERNABE:Now, based on the long history of the CNT, ASG and BIFF in Mindanao, do you believe that their purpose is to remove allegiance from the government, or deprived the Chief Executive and Congress of their powers and prerogatives? Or are these activities based on social and political ideologies?SOLICITOR GENERAL CALIDA:You were correct in saying, Your Honor, that these atrocities deprived not only the President and Congress of their powers and prerogatives in the areas where they control, Your Honor. x x x.42 (emphasis supplied)
The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension, which revocation shall not be set aside by the President.Consequently, when Congress approved the extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus initiated by the President, which resulted into a joint executive and legislative act, Congress exercised its broad power of review. It had the power to take into consideration not only data available prior to, but likewise events supervening the declaration, and it could delve into the accuracy of the facts presented before it. In spite of the rigorous review undertaken by the legislative branch, the President's request for the extension of such proclamation and suspension was approved by Congress.
In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the information and data available to the President prior to or at the time of the declaration; it is not allowed to "undertake an independent investigation beyond the pleadings." On the other hand, Congress may take into consideration not only data available prior to, but likewise events supervening the declaration. Unlike the Court which does not look into the absolute correctness of the factual basis as will be discussed below, Congress could probe deeper and further; it can delve into the accuracy of the facts presented before it.
In addition, the Court's review power is passive; it is only initiated by the tiling of a petition "in an appropriate proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic in the sense that it may be activated by Congress itself at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but likewise independent from each other although concededly, they have the same trajectory, which is, the nullification of the presidential proclamation. Needless to say, the power of the Court to review can be exercised independently from the power of revocation of Congress.44
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... 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.46 (emphasis supplied)Indeed, the three co-equal branches of the government, while acting independently, must give utmost respect to the findings of each other. When there is a clear insufficiency of factual basis, the Court must effectively nullify the extension of such proclamation or suspension for violating the Constitution; otherwise, the joint executive and legislative act must be upheld and recognized.
Hence, as long as the safeguards of the Constitution are observed and the Court diligently exercises its mandate to review any declaration or extension of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, then the citizenry of the State, particularly in Mindanao, can rest assured that their primordial constitutional rights shall be upheld and respected.
- The initial declaration of martial law has a time limit of sixty (60) days;
- The President is required to submit a report in person or in writing to the Congress to substantiate his declaration of martial law;
- There is a process for its review and possible revocation of Congress;
- There is also a review and possible nullification by the Supreme Court based on the sufficiency of factual basis;
- The removal of the phrases "imminent danger thereof and "insurrection" as grounds for declaring martial law;
- 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. Thus, during the martial law, the President can neither promulgate proclamations, orders and decrees when legislative assemblies are functioning nor create military courts to try civilians when the civil courts are open.
- The declaration of martial law does not automatically suspend the privilege of the writ of habeas corpus;
- During the suspension of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
- The extension of the declaration of martial law initiated by the President shall only take effect when approved by Congress for a period reasonably determined by it.
Endnotes:
1 1987 CONSTITUTION, Art. VII, Sec. 18.
2 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
3 Id.
4 Id.
5 Id.
6Rollo, G.R. No. 243522, Vol. 1, pp. 201-202.
7 Id. at 203-207.
8 Id. at 208-213.
9 Id. at 51-55.
10 Id. at 53.
11 G.R. Nos. 231658, 231771 &231774, July 4, 2017, 829 SCRA 1.
12 Id. at 184.
13 Id. at 181-182.
14 Id. at 154-155.
15 Id. at 179-180.
16 REVISED PENAL CODE, Art. 134.
17 An Act Punishing the Crime of Coup Détat 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 24, 1990.
18 99 Phil. 515 (1956).
19 Id. at 520-521.
20 279 Phil. 266 (1991).
21 Id. at 294-295.
22 3 Phil. 472 (1904).
23 Record of the Constitutional Commission Proceedings and Debates, Vol. II, pp. 412-413.
24 Supra note 2.
25Rollo, G.R. No. 243522, Vol. I, p. 215; see Table of ASG-Initiated Violent Incidents (01 January to 31 December 2018), attached as Annex "4" of the Comment of Respondents.
26 Id. at 246; see Table of BIFF-Initiated Violent Incidents (01 January to 31 December 2018), attached as Annex "5" of the Comment of Respondents.
27 Id. at 283; see Table of DI-Initiated Violent Incidents (01 January to 31 December 2018), attached as Annex "6" of the Comment of Respondents.
28 Id. at 165-167; Comment of the Respondents, pp. 15-17.
29Rollo, G.R. No. 243522, Vol. II, p. 860. Annex "2," Memorandum of the Respondents.
30 Id. at 830; see Memorandum of the Respondents, pp. 36-37.
31 Id. at 826; Memorandum of the Respondents, p. 33.
32 Id. at 826-827; Memorandum of the Respondents.
33 Id. at 853-854; Annex "1" of the Memorandum of the Respondents.
34 Transcript of the Oral Arguments, January 29, 2019, pp. 61-64.
35 Supra note 33.
36 Id. at 847-848.
37Rollo, G.R. No. 243522, Vol. I, pp. 53-54; see Annex "A" of the Lagman Petition.
38Rollo, G.R. No. 243522, Vol. II, p. 832; Memorandum of the Respondents.
39See concurring opinion of Justice Alexander G. Gesmundo in Lagman v. Pimentel III.
40 Supra note 10.
41Rollo, G.R. No. 243522, Vol. II, pp. 832-833; Memorandum of the Respondents, pp. 39-40.
42 Transcript of the Oral Arguments, January 29, 2019, pp. 47-48.
43 Supra note 2.
44 Supra note 11 at 154-155.
45 63 Phil. 139(1936).
46 Id. at 156-157.
47See concurring opinion of Justice Alexander G. Gesmundo in Lagman v. Pimentel III.
REYES, J. JR., J.:
President Rodrigo Roa Duterte sent a Letter dated December 6, 2018, requesting for a third extension of Proclamation No. 216 to the Congress. This was issued on the basis of the letters-recommendation sent by the Department of National Defense Secretaiy Delfin Lorenzana and then AFP Chief Carlito Galvez, Jr.
In said letter, President Duterte mentioned that although there were gains during the period of extension of Martial Law in 2018, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) highlighted certain essential facts indicating that rebellion still exists in Mindanao. He emphasized that several bombings with the use of Improvised Explosive Devices were committed by various terrorist groups. President Duterte also cited various kidnapping incidents by major Abu Sayyaf Group (ASG) factions in Sulu and perpetrations of at least 243 violent incidents by the Communist Terrorist Groups. All of which were in furtherance of its public declaration to seize political power and supplant the nation's democratic form of government with communism.
In the Joint Resolution No. 6 entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao for Another Period of One Year from January 1, 2019 to December 31, 2019," both Houses of Congress approved the President's request.
In response, some members of the Congress, teachers, and residents of some parts of Mindanao filed their respective petitions, essentially questioning the third extension of Martial Law and the suspension of the privilege of the writ of habeas corpus, under the third paragraph of Section 18, Article VII of the Constitution.
On this matter, I concur with the ponencia in ruling that (1) there was sufficient factual basis for the extension of Martial Law and the suspension of the privilege of the writ of habeas corpus; and (2) the basis for which the martial law was initially proclaimed, i.e., Proclamation No. 216, has not become functus officio with the cessation of the Marawi siege.
Sufficiency of factual basis for the extension of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus
On rebellion
This Court had already definitively addressed the issue on the determination of the presence of rebellion and its relation to the supposed inaccuracies in reports in the case of Lagman v. Medialdea.1 In said case, this Court considered it imperative to review the factual circumstances in all respects and not independently, to wit:
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation.Undoubtedly, this calls for the survey of the reports in its entirety.
Rarely is rebellion now committed by a large group of identified men engaging the government in an all-out conventional war in accordance with the Geneva Conventions. It would then be simply naive to dismiss, as the petitioners have, the remaining armed groups in Mindanao as but "phantom remnants" of the defeated terrorists and rebels. The fact that they do exist and still continue fighting is by itself proof of the subsistence of the condition that compelled the administration to proclaim Martial Law in Mindanao. (Emphasis supplied)On the requirement of public safety
We held that the grounds on which the armed public uprising actually took place should not be the measure of the extent, scope or range of the actual rebellion when there are other rebels positioned elsewhere, whose participation did not necessarily involve the publicity aspect of rebellion, as they may also be considered as engaged in the crime of rebellion.For this matter, there is an imperative need to consider the Resolutions issued by several Regional Peace and Order Councils in Region XI (Davao City), Region XIII (Caraga), Agusan Del Norte, Agusan Del Sur, and Dinagat Islands in Mindanao wherein the Whereas Clauses provide: (a) their intention to extend the period of Martial Law so that developments and growth that the region achieved can be sustained (Davao City); (b) they support the extension of Martial Law in pursuit of lasting peace, order, and security (Caraga); and (c) they appreciated the proclamation of Martial Law because they could feel the security in their jurisdictions against lawless elements due to the presence and efforts of AFP and PNP (Agusan Del Norte, Agusan Del Sur, and Dinagat Islands).
Sec. 3. Duties and Functions of Sub-National Councils. — The RPOCs, PPOCs, CPOCs, and MPOCs shall have the following duties and functions:Clearly from the foregoing, it is apparent that such councils are tasked with communicating with the people matters regarding peace, security, and public order within their respective jurisdictions. As such, they can be regarded as medium of the people in declaring their apprehensions. These councils also have the recommendatory functions to secure institutive action for peace and order. The issuance of these Resolutions, which are reflective of the voice of their constituents, strengthens the proposition that public safety necessitates the continued implementation of Martial Law and the suspension of the privilege of the writ of habeas corpus in Mindanao.
(a) Provide a forum for dialogue and deliberation of major issues and problems affecting peace and order, including insurgency;
(b) Recommend measures which will improve or enhance peace and order and public safety in their respective areas of responsibility, including anti-insurgency measures;
(c) Recommend measures to converge and orchestrate internal security operations efforts of civil authorities and agencies, military and police.
x x x x
Endnotes:
1 G.R. Nos. 231658, 231771 and 231774, July 4, 2017, 829 SCRA 1, 179.
2 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
3Lagman v. Medialdea, supra note 1, at 205-206.
4 Supra note 2.
5 G.R. Nos. 235935, 236061, 236145 and 236155, February 6, 2018.
6 Id.
7 CONSTITUTION (1987), Art. II, Sec. 4.
In his letter, President Duterte likewise adverted to the following events: (a) kidnapping incidents staged by Abu Sayyaf Group (ASG) factions in Sulu involving a Dutch, a Vietnamese, two Indonesians, and four Filipinos; (b) at least 342 violent incidents, such as harassment, attacks against government installations, liquidation operations, and various arson attacks, perpetrated by communists mostly in Eastern Mindanao from January 1, 2018 to November 30, 2018 in furtherance of their public declaration to seize political power and overthrow the government; (c) twenty-three recorded arson incidents which destroyed properties approximately valued at one hundred fifty-six million pesos (PhPl56,000,000.00); and (d) atrocities which resulted in the killing of 87 military personnel and wounding of 408 others.7
- The Lamitan Bombing on July 31, 2018 that killed eleven (11) individuals and wounded ten (10) others;
- The two (2) Isulan, Sultan Kudarat IED explosions on August 28, 2018 and September 2, 2018 which collectively left five (5) casualties and wounded forty-five (45) individuals; and
- The Barangay Apopong, General Santos City IED explosion on September 16, 2018 that left eight (8) individuals, including a three-year old child, wounded.6
A. Whether there exists sufficient factual basis for the extension of martial law in Mindanao.Before delving further into the foregoing issues, it should be mentioned that some of these have already been resolved and discussed at length in Lagman v. Medialdea77 and Lagman v. Pimentel III.78 In particular, the issues taken up and settled by this Court in the mentioned cases are the following: a) the power of the Court to review the sufficiency of the factual basis of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus and the extension thereof under Section 18, Article VII of the Constitution; b) the parameters for determining the sufficiency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus and the extension thereof; c) the determination of the sufficiency of the factual basis should be based on the full complement or totality of the factual basis and not on the absolute correctness of the facts stated in the Proclamation and the written report; d) the allowable standard of proof for the President, that is, probable cause; e) the power of the Congress to shorten or extend the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus; f) the manner in which the Congress deliberated on the President's request for extension is not subject to judicial review; g) the termination of armed combat in Marawi does not conclusively indicate that rebellion ceased to exist; h) alleged human rights violations committed during the implementation of martial law or the suspension of the privilege of the writ of habeas corpus should be resolved in a separate proceeding; and i) mere allegation of a constitutionally protected right does not automatically proceed to the issuance of an injunctive relief.
1. Whether rebellion exists and persists in Mindanao.
2. Whether public safety requires the extension of martial law in Mindanao.
3. Whether the further extension of martial law is not necessary to meet the situation in Mindanao.
B. Whether the Constitution limits the number of extensions and the duration for which Congress can extend the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus.
C. Whether Proclamation No. 216 has become functus officio with the cessation of the Marawi siege that it may no longer be extended.
D. Whether the manner by which Congress approved the extension of martial law is a political question and is not reviewable by the Court en banc.
1. Whether Congress has the power to determine its own rules of proceedings in conducting the joint session under Section 18, Article VII of the Constitution.
2. Whether Congress has the discretion as to how it will respond to the President's request for the extension of martial law in Mindanao - including the length of the period of deliberation and interpellation of the executive branch's resource persons.
E. Whether the declaration of martial law and the suspension of the privilege of the writ of habeas corpus or extension thereof may be reversed by a finding of grave abuse of discretion on the part of Congress. If so, whether the extension of martial law was attended by grave abuse of discretion.
F. Whether a temporary restraining order or injunction should issue.
G. Whether a temporary restraining order or injunction should issue.76
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.Undoubtedly, the section obliges the Supreme Court to review 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 in an appropriate proceeding filed by any citizen. Consistent with the principle of checks and balances in our Constitution, the review we undertake herein is a check on the executive's and the legislative's separate but related powers to initiate and extend the declaration of Martial Law. This delineation of powers mapped out in Section 18 has already been settled and drawn by this Court in Lagman v. Medialdea79 and enhanced further in Lagman v. Pimentel III.80
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rales 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.)
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency." Possibly, by the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the day as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.The central matter of contention in these cases is the propriety of the third extension of Martial Law from January 1, 2019 to December 31, 2019. Based on the letter of the President to Congress requesting for a third extension, and the accompanying letters of the Secretary of National Defense, the AFP Chief of Staff, and the PNP Director General addressed to the President, I find that respondents have sufficiently established the existence and persistence of an actual rebellion and that public safety requires the third extension of Proclamation No. 216.
Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible evidence that the President can appraise and to which he can anchor his judgment, as appears to be the case here. (Emphasis mine)
Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency." Possibly, by the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the day as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.This Court need not delve into the alleged inconsistencies and/or inaccuracies but on the totality of the factual basis which necessitates the extension of Proclamation No. 216. Notably, respondents cited the following incidents and/or factors for the extension of Martial Law: (a) the various bombing incidents committed by various terrorist groups that resulted in civilian casualties such as (1) the Lamitan Bombing on July 31, 2018 that killed 11 individuals and wounded 10 others, (2) the two Isulan, Sultan Kudarat IED explosions on August 28, 2018 and September 2, 2018 which collectively left five casualties and wounded 45 individuals, and (3) the Barangay Apopong, General Santos City IED explosion on September 16, 2018 that left eight individuals, including a three-year old child, wounded; (b) the kidnapping incidents staged by Abu Sayyaf Group (ASG) factions in Sulu involving a Dutch, a Vietnamese, two Indonesians, and four Filipinos; (c) at least 342 violent incidents, such as harassment, attacks against government installations, liquidation operations, and various arson attacks, perpetrated by communists mostly in Eastern Mindanao from January 1, 2018 to November 30, 2018 in furtherance of their public declaration to seize political power and overthrow the government; (d) twenty-three recorded arson incidents which destroyed properties approximately valued at one hundred fifty-six million pesos (PhP 156,000,000.00); and (e) atrocities which resulted in the killing of 87 military personnel and wounding of 408 others. On the whole, I find these cited incidents more than sufficient factual bases for the President to request the Congress for the third extension of Proclamation No. 216, this time from January 1, 2019 to December 31, 2019.84
The Office of the Deputy Chief of Staff for Intelligence, AFP (OJ2) is the depository of all information collected by various AFP units on the activities of groups that threaten national security. These AFP units obtain information through formal (reports of government agencies performing security and law enforcement functions) as well as informal channels (information networks in areas of interest and informants who are members of the threat groups). The information through these sources are collected to gain situational awareness particularly on enemy intentions and capabilities that become the basis of military operations and policy making. Since the information gathered from these sources are not meant to be used in criminal proceedings, the degree of documentation of the data obtained is not so rigid, especially since majority of the reports come from informants. It is for this reason that some reports are classified as secret since the release of such information could reveal the identities of informants embedded in various threat groups, or compromise an operational methodology employed by the military in gathering information.The foregoing explanation adequately answers the question, at least with regard to the process of validation of information pertaining to the recorded incidents in Mindanao during Martial Law in that island. To reiterate, and consistent with Lagman v. Medialdea,86 accuracy is not required; neither is it equal to sufficiency.
Nevertheless, the information gathered by various AFP units are expected to have undergone validation before being forwarded to OJ2 although there are instances where reports come from a single source, i.e., they come from a single informant and there is no way to validate the accuracy and veracity of its contents. It is for this reason that the AFP has a method of assessing the reliability of its informants based on their track record.
When it comes to violent incidents as well as armed clashes or encounters with threat groups, AFP units are required to submit reports as soon as possible. Called 'spot reports,' they contain information that are only available at that given reporting time window. This practice is anchored on the theory that an incomplete information is better than a complete information that is too late to be used. Subsequent developments are communicated through 'progress reports' and detailed 'special reports.'85
E.S. MEDIALDEA.It is also worthy to note that the President, through his fact-finding capabilities, has access to confidential information which may be shared to and relied upon by the Court in determining the sufficiency of the factual basis for the extension of Proclamation No. 216. To be sure, this is not gossamer information. After all, such information underwent intelligence affirmation by the military outfit best equipped to filter the same, the Office of the Deputy Chief of Staff for Intelligence, J2. The President, however, is not expected to completely validate all the information he received before he can request for the extension of martial law. He needs only to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed.88
x x x x
The President, in calling upon the Congress to extend Proclamation No. 216 has observed, among others, the following:
The remnants of the local terrorist groups composed of the Abu Sayyaf group and Daulah Islamiya have continued with their political thrust of establishing a wilayah and the Philippines, as part of Daesh, pretended global caliphate.
On the other hand, the so called Bangsamoro Islamic Freedom Fighters have remained adamant in their pursuit of establishing an independent Islamic State. These complications are further worsened by the presence of other foreign terrorist elements who, despite differences in ideologies, share the same purpose of overthrowing our government.
x x x x
The communist terrorist groups compose of the Communist Party of the Philippines, the National Democratic Front, and the New People's Army have carried on their armed struggle as part of their political elm to overthrow this government and supplant the same with communist rule. They commit armed hostilities against the people and displayed blatant, contiguous, and resolute defiance against the duly constituted government authorities.
x x x x
LT. GEN. MADRIGAL. Your Honor, Sir, based on the current - our PSR, Sir, the number of the ASG at this point is - number is about 424, with 254 firearms; the BIFF 264, with 254 firearms; Daulah Islamiyah 111, with 91 firearms; and the communist terrorist group of 1,636 or a total of 2,435, Your Honor.
REP. LAGMAN. And what are the basis for those figures?
LT. GEN. MADRIGAL. It's the deliberation, Your Honor, by the joint intelligence community, Your Honor.
x x x x
REP. CAGAS.
x x x x
While there had been considerable progress in addressing rebellion in the region, as well as promoting its overall security and peace and order situation, the threat of national security posed by rebel groups remain clear and present in the region. There had been bombings in Sultan Kudarat in August and in Basilan in July, and last month, armed men believed to be members of the communist New People's Army set fire to three dump trucks in a small village in my district. Those dump trucks had been used to work on a road project linking the municipality of Magsaysay to the town of Matanao.
The attack came barely a month after military officials said in a statement that the NPA forces in the province had already weakened. Clearly, the attack is NPA's way of sending the government a message that they are still a strong and brute force, and that they are not ready to back down.87
The information through these sources are collected to gain situational awareness particularly on enemy intentions and capabilities that become the basis of military operations and policy making. Since the information gathered from these sources are not meant to be used in criminal proceedings, the degree of documentation of the data obtained is not so rigid, especially since majority of the reports come from informants. It is for this reason that some reports are classified as secret since the release of such information could reveal the identities of informants embedded in various threat groups, or compromise an operational methodology employed by the military in gathering information.It is my view that the nature of the evidence that support the findings established out of this investigatory power, which is essentially the function of the military and police, is not substantial evidence, which is the norm in administrative cases. Indeed, in a Section 18 review of the sufficiency of the factual basis for the declaration of martial law, the President need only find probable cause for the existence of rebellion (or invasion) and that the declaration of martial law is required by public safety.96
Nevertheless, the information gathered by various AFP units are expected to have undergone validation before being forwarded to OJ2 although there are instances where reports come from a single source, i.e., they come from a single informant and there is no way to validate the accuracy and veracity of its contents. It is for this reason that the AFP has a method of assessing the reliability of its informants based on their track record.
When it comes to violent incidents as well as armed clashes or encounters with threat groups, AFP units are required to submit reports as soon as possible. Called "spot reports," they contain information that are only available at that given reporting time window. This practice is anchored on the theory that an incomplete information is better than a complete information that is too late to be used. Subsequent developments are communicated through "progress reports" and detailed "special reports."95 (Emphasis supplied.)
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. (Emphasis supplied.)In Lagman v. Pimentel III,102 the Court interpreted that provision of Section 18 and ruled that Congress has the power to approve any extension of the proclamation of martial law, as long as it is under the President's initiative, and falling within the set parameters as basis for the extension. Lagman v. Pimentel III103 held that by approving the extension of martial law, Congress and the President performed a "joint executive and legislative act" or "collective judgment."
MR. PADILLA. According to Commissioner Concepcion, our former Chief Justice, the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is essentially an executive act. If that be so, and especially under the following clause: "if the invasion or rebellion shall persist and public safety requires it," I do not see why the period must be determined by the Congress. We are turning a purely executive act to a legislative act.Clearly, the framers of the Constitution fitted Congress with enough flexibility to determine the duration of the extension without prejudice to the President's request for another extension. This is only logical and proper considering that the amount of time necessary to quell a rebellion cannot be measured with mathematical accuracy, defmitiveness or even finality.
FR. BERNAS. I would believe what the former Chief Justice said about the initiation being essentially an executive act, but what follows after the initiation is something that is participated in by Congress.
MR. CONCEPCION. If I may add a word. The one who will do the fighting is the executive but, of course, it is expected that if the Congress wants to extend, it will extend for the duration of the fighting. If the fighting goes on, I do not think it is fair to assume that the Congress will refuse to extend the period, especially since in this matter the Congress must act at the instance of the executive. He is the one who is supposed to know how long it will take him to fight. Congress may reduce it, but that is without prejudice to his asking for another extension, if necessary.104 (Emphasis mine)
ASSOCIATE JUSTICE HERNANDO:Plainly, even with the end of the Marawi siege, rebellion persists as confirmed by the various validated reported incidents submitted by the military such as bombing incidents, kidnapping episodes and other atrocities. In addition, modern day rebellion need not take place in the battlefield of the parties' own choosing. It may also include underground propaganda, recruitment, procurement of arms and raising of funds which are conducted far from the battle fronts. As held in Aquino, Jr. v. Ponce Enrile110 :
I'm jumping off from what Justice Jardeleza has started from and this is on the basis of the statement of Secretary Lorenzana before Congress that there is a need to at least degrade the extent of combat that's talcing place thirty percent before PNP as a law enforcement agency can come into the picture. I just want to ask this just for my perspective to be validated. I think that that thirty percent degradation is from the view point of a war that is asymmetric because what government is waging against these rebels is not a general or a conventional war rather it's an asymmetric war. And that is because we have a standing army that numbers 98,000 as of last count with 120,000 as reservists. And when we compare that number to the rebels, I'm very sure that their number is very much less than that and which is why I say that what government is waging against these rebels is an asymmetric war, not a symmetrical or conventional war. So that thirty percent, General Madrigal, is from the prospective of an asymmetric war?
GENERAL MADRIGAL:
Your Honor, that's why we have included as part of the parameters the level of influence specially on the affected barangays because the number we are referring to, the 1,600 or so regulars are still supported by the support system. We call it the underground mass organization; they call it the Sangay ng Partido sa Lokalidad or party members in the locality and Demolisyon Bayan or the armed militias in the barangay. So these are all part of the overall enemy capability as far as the CPP-NPA that we are addressing, not only the regular armed groups but also the support system. In fact we focus so much on the support system in the firm belief that it will be very easy to address armed groups if they do not have the support of the community.109
In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of the facts and events recited in detail in the different 'Whereases' of the proclamation are of common knowledge. 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 lighting. 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. (Emphasis supplied.)The Lagman and Bayan Muna petitions also raised the argument that the rebel group identified to be behind the rebellion in the initial proclamation of Martial Law should be the same rebel group that is foisting the rebellion for which the third extension is being sought by the Commander-in-Chief. This is unfounded. For one, this is tantamount to imposing a limitation which is not found in Section 18, Article VII or envisioned by the framers of the Constitution. To be sure, Section 18, Article VII did not in any manner require the President to identify or specify in the initial proclamation the particular rebel group that is mounting the rebellion. For another, this would result into an absurd situation wherein the President might as well be required to issue another proclamation or request for an extension, each time that a new rebel group is identified to be behind the rebellion, and which rebel group was not mentioned or included in the initial proclamation of the President.
Endnotes:
1 G.R. Nos. 231658, 231771 & 231774, July 4, 2017, 829 SCRA 1.
2 G.R. Nos. 235935, 236061, 236145 & 236155, February 6, 2018.
3Rollo, G.R. No. 243522, Vol. 1, pp. 208-213. Joint Letter of AFP Chief of Staff Carlito G. Galvez, Jr. and PNP Chief of Staff Oscar D. Albayalde to President Rodrigo R. Duterte.
4Id., Vol. 2, p. 798. Memorandum for Respondents through the Office of the Solicitor General, p. 5.
5Supra note 3. Joint Letter of AFP Chief of Staff Carlito G. Galvez, Jr. and PNP Chief of Staff Oscar D. Albayalde to President Rodrigo R. Duterte.
6Supra note 4 at p. 799, Memorandum for Respondents through the Office of the Solicitor General.
7Id.
8Id. at pp. 753-788. Filed by Representatives Edcel C. Lagman, Tomasito S. Villarin, Teddy Brawner Baguilat, Jr., Edgar R. Erice, Gary C. Alejano, Jose Christopher Y. Belmonte, and Arlene "Kaka" Bag-Ao.
9Id. at pp. 756-757. Memorandum of the Petitioners Lagman, et al.
10Id., Vol. 1, at pp. 26-27. Petition of the Petitioners Lagman, et al.
11Id. at pp. 27-28.
12Id. at pp. 11-22; supra note 4, pp. 757-760, Memorandum of the Petitioners Lagman, et al.
13Id. at pp. 34-36.
14Id. at p. 37.
15Supra note 4, pp. 771-772, 761-764, Memorandum of the Petitioners Lagman, et al.
16Supra note 1.
17Supra note 2.
18Supra note 4, pp. 765-768. Memorandum of the Petitioners Lagman, et al., pp. 13-15.
19Id. at pp. 768-771.
20Id. at pp. 775-786.
21 Supra note 3 at pp. 41-44, Petition of the Petitioners Lagman, et al.; Supra note 4, p. 781, Memorandum of the Petitioners Lagman, et al.
22Id. at pp. 44-45.
23Id. at pp. 45-46.
24Supra note 4 at p. 782, Memorandum of the Petitioners Lagman, et al.
25Id. at pp. 783-784.
26Id. at p. 783.
27 Supra note 3 at pp. 46-47, Petition of the Petitioners Lagman, et al.
28 Supra note 3 at pp. 308-309, Amended Petition of the Petitioners Lagman, et al.
29Rollo, G.R. No. 243677, pp. 3-41; Filed by Bayan Muna Partylist Representative Carlos Isagani T. Zarate, Gabriela Women's Party Representatives Rmerenciana A. De Jesus and Arlene D. Brosas, Anakpawis Representative Ariel B. Casilao, ACT Teachers Representatives Antonio L. Tinio and France L. Castro, and Kabataan Partylist Representative Sarah Jane I. Elago.
30Id. at p. 127, Memorandum for Petitioner Bayan Muna, et al.
31Id. at pp. 263-266.
32Id. at p. 272.
33Id. at pp. 278-280, Memorandum for Petitioner Bayan Muna, et al.
34Id. at pp. 282-284.
35Id. at pp. 288-292.
36Rollo , G.R. No. 243745, pp. 3-31, Filed by Christian S. Monsod, Ray Paolo J. Santiago, Nolasco Ritz Lee B. Santos III, Marie Hazel E. Lavitoria, Dominic Amon R. Ladeza, and Xamantha Xofia A. Santos.
37Id. at pp. 14-25, Petition of the Petitioners Monsod, et al., Id. at p. 290, Memorandum of the Petitioners Monsod, et al.
38Id. at pp. 291-295, Memorandum of the Petitioners Monsod, et al.
39Id. at pp. 295-301.
40Id. at p. 303.
41Id. at pp. 303-305.
42Id. at pp. 305-307.
43Id. at pp. 307-308.
44Id. at pp. 27-28, Petition of the Petitioners Monsod, et al.
45Id. at pp. 308-309, Memorandum of the Petitioners Monsod, et al.
46Id. at pp. 23-27, Petition of the Petitioners Monsod, et al.; Id. at pp. 309-310, Memorandum of the Petitioners Monsod, et al.
47Id. at p. 311, Memorandum of the Petitioners Monsod, et al.
48Id. at p. 30, Petition of the Petitioners Monsod, et al.
49Id. at pp. 312-313, Memorandum of the Petitioners Monsod, et al.
50Id. at pp. 313-314.
51Id. at p. 316.
52Id. at p. 30, Petition of the Petitioners Monsod, et al.; Id. at pp. 314-315, Memorandum of the Petitioners Monsod, et al.
53Rollo, G.R. No. 243797, pp. 7-18, Filed by Rius Valle, Jhosa Mae Palomo, Lito Kalubag, Junjun Gambang, Jeany Rose Hayahay, and the Integrated Bar of the Philippines.
54Id. at pp. 10-11, Petition of the Lumad Petitioners; Id. at pp. 299-306, Memorandum of the Lumad Petitioners, et al.
55Id. at pp. 11-12; Id. at p. 300.
56Id. at p. 12; Id. at pp. 300-304.
57Id. at pp. 304-305, Memorandum of the Lumad Petitioners, et al.
58Id. at p. 306.
59Id. at pp. 306-307.
60 Section 3, General Order No. 1.
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.
61Supra note 53 at pp. 12-13, Petition of the Lumad Petitioners; Id. at pp. 307-308, Memorandum of the Lumad Petitioners, et al.
62Id. at pp. 13-17; id. at pp. 306-313.
63Id. at pp. 17-18, Petition of the Lumad Petitioners.
64Supra note 1.
65Supra note 3 at pp. 121-123, Memorandum for Respondents.
66Supra note 2.
67Supra note 3 at pp. 124-125, Memorandum for Respondents.
68Supra note 2.
69Supra note 3 at pp. 126-132, Memorandum for Respondents.
70Supra note 1 at p. 173.
71Supra note 3 at pp. 132-135, Memorandum for Respondents.
72Id. at pp. 135-138.
73Id. at pp. 138-151.
74Id. at pp. 151-154.
75Id.
76 Amended Advisory of the Supreme Court.
77Supra note 1.
78Supra note 2.
79Supra note 1.
80Supra note 2.
81Supra note 1 at p. 184.
82Id. at pp. 179-180 citing the Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. President Macapagal-Arroyo, 684 Phil. 526, 565-619 (2012).
83Id.
84Supra note 3, pp. 114-115, 135-151, Memorandum for Respondents.
85Supra note 4 at pp. 847-848, Letter of Major General Pablo M. Lorenzo, AFP (Deputy Chief of Staff for Intelligence, J2) to Solicitor General Jose C. Calida.
86Supra note 1 at p. 179.
87 Transcript of Plenary Proceedings of Joint Session of Congress on the extension of Martial Law in Mindanao from January 1, 2019 to December 31, 2019 dated December 12, 2018, pp. 14-15, 27 and 134.
88 G.R. Nos. 231658, 231771 & 231774 (Resolution), December 5, 2017.
89Id.
90Lagman v. Medialdea, supra note 1 at p. 193.
91Id. at p. 182.
92Id.
93Id.
94 69 Phil. 635 (1940).
95Supra note 4 at pp. 847-848, Letter of Major General Pablo M. Lorenzo, AFP (Deputy Chief of Staff for Intelligence, J2) to Solicitor General Jose C. Calida.
96Lagman v. Pimentel III, supra note 2.
97 802 Phil. 314 (2016).
98Supra note 1.
99 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 of invasion because this is usually the evidence presented.
MR. PADILLA. Yes, as credible evidence, especially if they are based on actual reports and investigation of facts that might soon happen.
MR. NATIVIDAD. Then the difficulty here is, of course, that the authors and the witnesses in intelligence reports may not be forthcoming under the rule of classified evidence of documents. Does the Commissioner still accept that as evidence?
MR. PADILLA. It is for the President as eommander-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.
100See: Twin Blasts Hit Jolo Cathedral; At Least 20 Dead, available at: https://news.mb.com.ph/2019/01/27/twin-blasts-hit-jolo-cathedral-at-least-20-dead/ (last accessed February 15, 2019).
101Supra note 2.
102Id.
103Id.
104Lagman v. Pimentel III, id. citing Record of the Constitutional Commission (1986), pp. 508-516.
105Id.
106Id. citing Pimentel, Jr. v. Senate Committee of the Whole, 660 Phil. 202 (2011) and Arroyo v. De Venecia, 343 Phil. 42 (1997).
107Id.
108 Asymmetric Warfare, available at https://www.merriam-webster.com/dictionary/asymmetric%20warfare (last accessed February 15, 2019).
109 Transcript of Stenographic Notes taken during the hearing of the case at bench on January 29, 2019, pp. 90-91.
110 158-A Phil. 1, 48-49 (1974).