G.R. No. 235935, February 6, 2018,
♦ Decision,
Tijam, [J]
♦ Dissenting Opinion,
Sereno, [CJ] Carpio, [J] Leonen, [J] Jardeleza, [J] Caguioa, [J]
♦ Concurring Opinion,
Velasco, [J] Leonardo-De Castro, [J] Del Castillo, [J] Gesmundo, [J] Ponente, [J]
♦ Separate Concurring Opinion,
Perlas-Bernabe, [J]
DISSENTING OPINION
SERENO, CJ.:
The Court is still adrift, unable in the Majority Decision, to find its mooring either on a well-reasoned interpretation of the text of the Constitution, or to present a logical continuum of this Court's jurisprudence. Instead, it has taken an extreme view, ceding all substantive points to respondents and allowing thereby no significant quarters to petitioners. In demonstrating its serious lack of balance, it has made itself even more vulnerable to political forces, rendering itself inert in exercising the power of judicial review.
With all due respect, I refer most especially to the ponencia's inability to establish sufficient parameters to determine whether the first or the second requirement under the Constitution is present to support a valid extension of the declaration of Martial Law and suspension of the privilege of the writ of habeas corpus. These two requirements are that actual rebellion persists, and that public safety requires the imposition of Martial Law or the suspension of the writ.
The ponencia has additionally defaulted by providing no limits to the length or the number of extensions that Congress may allow for Martial Law to take hold. The limitations on the power of extension are so insubstantial as to be invisible. It holds that "Section 18, Article VII is clear that the only limitation[ s] to the exercise of the congressional authority to extend such proclamation or suspension are 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.''1
The ponencia then proceeds to cite the factual allegations of both the Executive and Congress and without any further test, yields to the spirit of deference and justifies its conclusion in this wise:
The information upon which the extension of martial law or of the suspension of the privilege of the writ of habeas corpus shall be based principally emanate from and are in the possession of the Executive Department. Thus, "the Court will have to rely on the fat-finding capabilities of the [E]xecutive [D]epartment; in turn, the Executive Department will have to open its findings to the scrutiny of the Court."
xx xx
The facts as provided by the Executive and considered by Congress amply establish that rebellion persists in Mindanao and public safety is significantly endangered by it. The Court, thus, holds that there exists sufficient factual basis for the further extension sought by the President and approved by the Congress in its Resolution of Both Houses No. 4
Necessarily, we do not see the merit in petitioner's theory in the Cullamat petition that the extent of threat to public safety as would justify the declaration or extension of the proclamation of martial [law] and the suspension of the privilege of the writ must be of such level that the government cannot sufficiently govern, cannot assure public safety and cannot deliver government services. Petitioners posit that only in this scenario may martial law be constitutionally permissible.
Restrained caution must be exercised in adopting petitioners' theory for several reasons. To begin with, a hasty adoption of the suggested scale, level, or extent of threat to public safety is to supplant into the plain text of the Constitution. An interpretation of the Constitution precedes from the fundamental postulate that the Constitution is the basic and paramount law to which all other laws must conform to and to which all persons, including the highest officials of the land, must defer. The consequent duty of the judiciary is to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This must be so considering that the Constitution is the mother of all laws, sufficient and complete in itself. For the court to categorically pronounce which kind of threat to public safety justifies the declaration or extension of martial law and which ones do not, is to improvise on the text of the Constitution ideals even when these ideals are not expressed as a matter of positive law in the written Constitution. Such judicial improvisation finds no justification.
For another, if the Court were to be successful in disposing of its bounden duty to allocate constitutional boundaries, the Constitutional doctrines the Court produces must necessarily remain steadfast no matter what may be the tides of time. The adoption of the extreme scenario as the measure of threat to public safety as suggested by petitioners is to invite doubt as to whether the proclamation of martial law would at all be effective in such case considering that enemies of the State raise unconventional methods which change over time. It may happen that by the time government loses all capability to dispose of all its functions, the enemies of the government might have already been successful in removing allegiance therefrom. Any declaration then of martial law would be of no useful purpose and such could not be the intent of the Constitution. Instead, the requirement of public safety as it presently appears in the Constitution admits of flexibility and discretion on the part of the Congress.
So too, when the President and the Congress ascertain whether public safety requires the declaration and extension of martial law, respectively, they do so by calibrating not only the present state of public safety but the further repercussions of the actual rebellion to public safety in the future as well.xx x.2
It is difficult to see how the ponencia can consider as inevitable its conclusion disagreeing with the Cullamat proposal that the danger posed to public safety must necessitate the imposition of Martial Law, and that only then can Martial Law be justifiable. Neither the difficulty posed by the process of examining necessity nor the need to adapt to different approaches in the future is sufficient reason for the Court to refuse to review the question of necessity. The automatic conclusion that as Government has established the existence and persistence of rebellion, therefore Martial Law is justifiable by its self-evident claims, is, sadly, gratuitous. It is not wrong to suspect that this halfhearted conclusion is rooted in the refusal to take seriously the doctrine of necessity.
The Doctrine of Necessity
To put texture into this discussion, it would help to recall the conversations in Lagman v. Medialdea,3 where the Solicitor General called the declaration of Martial Law a "Gulpi de Gulat,"4 an "exclamation point," and as the "calling out powers on steroids."5 Note that the struggle to find a definition of Martial Law under the 1987 Constitution is, in turn, due to the need for Government to justify why it needs that kind of Martial Law. This is because, in essence, Government cannot escape facing the question of necessity.
An examination of the deliberations of the 1987 Constitutional Commission shows that our framers drew the Philippine concept of Martial Law from American law, with certain differences. As explained by Father Joaquin Bernas:
Since the Philippine Constitution is traceable to American origins and was formulated by jurists reared in the tradition of American constitutional law, it is legitimate to start the quest for a definition of martial law in the Constitution by looking back to the difference nuances which the term carries in American law.6
American cases on the concept of Martial Law show the doctrine of necessity at its very heart. The United States (US) Supreme Court's first look at Martial Law was in 1848 in Luther v. Borden.7 The controversy centered on the state militia's warrantless forced entry into the home of Martin Luther8 during a state of Martial Law in Rhode Island.9 The case was dismissed for being a political question. Chief Justice Taney wrote that the decision whether or not to impose Martial Law to combat a crisis is left to the State.10 Nevertheless, Luther touched on the substantive issue regarding the state's authority to invoke Martial Law and thereby laid the early foundations of Martial Law in the US. In describing this power, Luther went on to explain:
And, unquestionably, a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority.11
A conclusion that may be drawn from the foregoing dictum is that the state can determine when an internal unrest necessitates the declaration of Martial Law, a determination that then becomes conclusive upon the courts. Nevertheless, Luther went on to explain that the power to make that determination is limited by the necessity of the situation involved, viz.:
And in that state of things, the officers engaged in its military service might lawfully arrest anyone who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable.12
Subsequently, it was in Ex Parle Milligan13 where the US Supreme Court was able to substantively explore Martial Law. The case stemmed from the arrest of Lamdin Milligan while the state was under Martial Law. Milligan was later on tried by a military commission, whose ruling was struck down by the Court. In that case, the imposition of Martial Law in Indiana was analyzed, to wit:
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.14
Justice Davis, speaking for the majority, clarified that there could be no Martial Law unless there is an actual need for it:
Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.15
Luther and Ex Parte Milligan were decided within the context of war emergencies.16 However, there were questions that remained unanswered. After the Civil War, several cases that subsequently arose allowed the US Supreme Court to further define Martial Law, this time within the context of turmoil rooted in economic crisis.17 Still, the doctrine of necessity persisted.
In Moyer v. Peabody,18 the Court reviewed the Colorado governor's declaration of Martial Law to address a labor dispute in the state. It also looked into the exercise of Martial Law powers, such as the arrest of Charles Moyer. The opinion of the Court penned by Justice Holmes mirrored Chief Justice Taney's dictum in Luther. It ruled that the governor had the power to declare Martial Law sans a significant judicial review, as long as the declaration was done in good faith. Nevertheless, necessity was still deemed the primary consideration, to wit:
When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.19
Twenty-three years later, Sterling v. Constantin20 allowed the US Supreme Court to again review a governor's authority to declare Martial Law. This time, the governor of Texas had proclaimed Martial Law over several oil-producing counties of the state, declaring that insurrection and riot beyond civil control existed there due to the wasteful production of oil. The military force shut down the oil wells thereafter, an act the Court found to be excessive. It affirmed Luther and Moyer in that the governor's decision to declare Martial Law was conclusive upon the courts.21 However, Sterling went one step further and qualified the governor's power with the so-called "proportionality test"22 - that the means employed by the governor in his exercise of Martial Law powers must bear a direct relation to the disturbance being faced.23 Finding the state's actions in Luther and Moyer to be in line with the proportionality test, the Court likewise concluded that the doctrine of necessity was still at the core of its considerations. In effect, Sterling affirmed its authority to review the executive's declaration of Martial Law.24
Duncan v. Kahanamoku25 again provided the Court an opportunity to deal with the imposition of Martial Law during wartime. Set during the bombing of Pearl Harbor, the issue centered on Duncan's arrest and subsequent trial and conviction by the military commission. While the Court, through Justice Black, struck down the military tribunal's authority to try and convict Duncan, it still upheld the declaration of Martial Law in Hawaii. Nevertheless, it tested the extent of authority of the military commission against the doctrine of necessity enunciated in Ex Parte Milligan,26 again confirming the centrality of that doctrine in US Martial Law jurisprudence.
All of the above pronouncements, taken together, lead to the understanding that Martial Law is "the law of necessity in national emergency."27
This doctrine of necessity was translated into the Philippine concept of Martial Law through the second requisite for its proclamation as specified by the text of the 1987 Constitution: "public safety requires it."
In other words, during a state of invasion or rebellion, the necessity posed by public safety serves as the gauge for the proclamation of Martial Law, as well as its scope and duration. As explained by Fr. Bernas:
Necessity creates the conditions for martial law and at the same time limits the scope of martial law. Certainly, the necessities created by a state of invasion would be different from those created by rebellion. Necessarily, therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could not be identical under all condition.28 (Emphasis supplied)
Calibration Exercise and the
Proportionality Test
Unlike the US concept of Martial Law, which did not define the specific circumstance of unrest that would trigger Martial Law, the Philippine Constitution specifies actual invasion or rebellion as the requisite factual antecedents, without which Martial Law cannot be proclaimed.
It is in the context of invasion or rebellion that the doctrine of necessity is considered. More aptly called the "necessity of public safety test," a calibration exercise must be undertaken to determine whether the crisis at hand poses such a danger to public safety and good order that Martial Law becomes necessary. If so, this exercise further requires a determination of the degree of Martial Law powers necessary to address the threat to public safety. This task entails a determination of the scope, coverage, and duration of Martial Law.
The proportionality test that the US Supreme Court instituted in Sterling can serve as a guide in undertaking a calibration exercise. The Court in Sterling, after reviewing the factual bases of the governor's declaration of Martial Law, found that the overproduction of oil was not serious enough to warrant the declaration of Martial Law and the exercise of Martial Law powers.29 In analyzing the proportionality between the internal unrest and the government powers invoked to address the unrest, the Court therein examined the factual findings of the district court, as follows:
It was conceded that at no time has there been any actual uprising in the territory. At no time has any military force been exerted to put riots or mobs down. At no time, except in the refusal of defendant Wolters to observe the injunction in this case, have the civil authorities or courts been interfered with, or their processes made impotent. Though it was testified to by defendants that, from reports which came to them, they believed that, if plaintiffs' wells were not shut in, there would be dynamiting of property in the oil fields, and efforts to close them and any others which opened by violence, and that, if that occurred, there would be general trouble in the field, no evidence of any dynamite having been used, or show of violence practiced or actually attempted, or even threatened against any specific property in the field, was offered. We find, therefore, that not only was there never any actual riot, tumult, or insurrection which would create a state of war existing in the field, but that, if all of the conditions had come to pass, they would have resulted merely in breaches of the peace, to be suppressed by the militia as a civil force, and not at all in a condition constituting, or even remotely resembling, a state of war.30
In was then found that the above circumstances did not amount to an "exigency which justified the Governor in attempting to enforce by executive or military order the restriction."31 The US Court reasoned:
By virtue of his duty to "cause the laws to be faithfully executed,'' the Executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. xxx The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive in the exercise of his authority to maintain peace.
xx xx
It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions. Thus, in the theater of actual war, there are occasions in which private property may be taken or destroyed to prevent it from falling into the hands of the enemy or may be impressed into the public service, and the officer may show the necessity in defending an action for trespass. "But we are clearly of opinion," said the Court, speaking through Chief Justice Taney,
"that, in all of these cases, the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. . . . Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified."Mitchell v. Harmony, 13 How. 115, 134. See also United States v. Russell, 13 Wall. 623, 628.
There is no ground for the conclusion that military orders in the case of insurrection have any higher sanction or confer any greater immunity.32
The Sterling Court examined the previous case, Moyer, which also upheld the temporary detention of one believed to be a participant in the insurrection launched during Martial Law. The Sterling Court applied the proportionality test and agreed that the action of the governor in Moyer had a direct relation to the crushing of the insurrection.33 Applying that model to the Texas governor's actions, the Court ultimately found that the declaration of Martial Law was not a proportional response to the crisis caused by the overproduction of oil.
Necessity of Public Safety as a
Required Precursor of Martial Law
There is no dire lack of guidance or parameters in determining what sort of public safety necessity calls for a proclamation of Martial Law. It is Sterling that gives a clearer insight into what kind of necessity entails a Martial Law declaration. As deduced from the quoted portions above, there must be a semblance of a "state of war." Moreover, there must be a perceived inability of the civilian authority to address the crisis brought about by the "state of war." The logical consequence is the existence of a serious threat to public safety.
This finding was reiterated in Duncan, which ruled that Martial Law was "intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion."34 This pronouncement essentially maintained the concept of Martial Law as defined in Ex Parte Milligan - that Martial Law is proper during war when civil institutions are paralyzed to a certain extent and military operations are necessary to preserve public safety and order.
War. Military operations. Crippled civilian functions. It was along these lines that the US Supreme Court has determined the propriety of Martial Law. It is apparent from the deliberations of the 1986 Constitution Commission that the framers somehow intended to define and characterize Philippine Martial Law along the same lines. Fr. Bernas himself used the term "theater of war" to define Martial Law:
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 opened 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.35 (Emphasis supplied)
It would therefore be helpful for the Court to undertake its calibration exercise in weighing necessity vis-a-vis public safety along similar lines as well. To my mind, the intensity of an invasion or a rebellion that endangers public safety must be discerned within the context of a state of significant armed conflict. In other words, the circumstances on the ground must be so severe that they entail the invocation of an extreme measure.
A balancing act is called for, specifically between the gravity of the situation and the extraordinary measure meant to address it, which is Martial Law. It is the established intent of the framers of our Constitution for Martial Law to be a measure that would be utilized only in extremely urgent circumstances as the following deliberation shows:
FR. BERNAS: Besides, it is not enough that there is actual rebellion. Even if we will suppose for instance that the Manila Hotel incident was an actual rebellion, that by itself would not justify the imposition of martial law or the suspension of the privilege of the writ because the Constitution further says: "when the public safety requires it." So, even if there is a rebellion but the rebellion can be handled and public safety can be protected without imposing martial law or suspending the privilege of the writ, the President need not. Therefore, even if we consider that a rebellion, clearly, it was something which did not call for imposition of martial law.36 (Emphasis supplied)
This intent leads to the general understanding that Martial Law is an extraordinary power to be wielded only in extraordinary circumstances.37 That is the fundamental principle that must guide the Court in the conduct of its review powers.
The Court's Power of Review
While the President and Congress are expected to engage in a calibration exercise in the process of deciding whether or not to declare or extend Martial Law, this exercise is of utmost importance to this Court, which exercises the power of review over the sufficiency of the factual bases of the proclamation or its extension.
As emphasized in my dissent in Lagman v. Medialdea, it is the duty of the Court to inquire into the necessity of declaring Martial Law to protect public safety. I pointed out:
The duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the determination of proportionality of the powers sought to be exercised by the President. As pointed out by the ponencia, the exercise of the powers of the President under Section 18, Article VII "can be resorted to only under specified conditions." This means that greater powers are needed only when other less intrusive measures appear to be ineffective. When it is deemed that the power exercised is disproportional to what is required by the exigencies of the situation, any excess therefore is deemed not required to protect public safety, and should be invalidated.38 (Emphasis supplied)
To perform this duty is to engage in the same kind of calibration exercise that the Sterling Court undertook. Hence, the Court herein is required not only to determine the existence of an actual invasion or rebellion, but also, to analyze and determine whether the nature and intensity of the invasion or rebellion endanger public safety in a way that makes Martial Law necessary.
The calibration would necessitate a determination not just of the propriety of a Martial Law declaration, but likewise its territorial coverage. In the case of an extension of Martial Law, the Court is called upon to take one step further and likewise calibrate whether the danger posed is commensurate with the period of extension fixed by Congress. In so doing, this Court needs to apply a trial judge's reasonable mind and common sense as honed by relevant experiences and legal proficiency.
It must be emphasized that this kind of exercise is no longer new to this Court, as it has in fact undertaken a similar calibration in Lansang v. Garcia.39 In that case, the Court upheld the nationwide suspension of the privilege of the writ of habeas corpus, but only after a careful examination and calibration of the danger posed by the nationwide acts of rebellion.
To refrain from undertaking a similar calibration exercise this time around would amount to an abdication of this Court's obligation under Section 18, Article VII of the Constitution. To reiterate my dissent in Lagman v. Medialdea:
The Court cannot be defending vigorously its review power at the beginning, with respect to the sufficiency-of-factual basis question, then be in default when required to address the questions of necessity, proportionality, and coverage. Such luxury is not allowed this Court by express directive of the Constitution.40 (Emphasis supplied)
Help to Government
In the exchange between the undersigned and General Guerrero, an effort was made to elicit the operational necessity for Martial Law. Below is the exchange:
CHIEF JUSTICE SERENO:
Can you answer for us General, can you just answer for us what particular power do you want under a martial law system? You have already concluded that it was effective, immediate but what specific aspect is important for you?
GENERAL GUERRERO:
For now, Your Honor, what martial law [has) given us is the power for us to be able to effect immediate arrest of rebels because of the suspension of the privilege of habeas corpus.
CHIEF JUSTICE SERENO:
But there are jurisprudence already that authorize you to do that?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
Yes. Are these jurisprudence not enough for you?
GENERAL GUERRERO:
I cannot say for now, Your Honor, exactly what other powers could be avail[ed] to apply to in the Armed Forces for us to be able to perform our mission effectively, Your Honor.
CHIEF JUSTICE SERENO:
Because that's precisely the question we need to answer and we spend a lot of time yesterday afternoon saying what particular aspect of martial law do you need that you cannot use already under your present, under the ordinary powers of the President and the military because you see, you can already conduct surveillance on terrorists, all terrorists. You only need actually the declaration, the arrest, you only need, the arrest rather, you only need the declaration of the Anti-Terrorism Council, is that not correct? x x x
GENERAL GUERRERO:
Your Honor ...
CHIEF JUSTICE SERENO:
Why are you not using that? [The] Anti-Terrorism Council[,] has it convene[d] since President Duterte became president?
GENERAL GUERRERO:
I cannot answer for the Anti-Terrorism Council, Your Honor.
xx xx
CHIEF JUSTICE SERENO:
Okay. So, only martial law can bring [everybody on board]? Why? Can you explain to us that ideological theory or operational justification?
GENERAL GUERRERO:
Your Honor, let me just cite my experience as System Mindanao Commander being the implement[e]r of martial law in my area of responsibility.
xx xx
Before the implementation of martial law, I had to request, to invite other heads of agencies for them to participate in our security engagements.
xx xx
It was a difficult task at that time.
CHIEF JUSTICE SERENO:
But the President can just give a directive through the Executive Secretary, All calls from General Guerrero must be immediately obeyed.
GENERAL GUERRERO:
It's not as easy as that, Your Honor.
xx xx
So, we have to understand that compliance needs to be improved.
xx xx
CHIEF JUSTICE SERENO:
Okay. So, what makes it easier, is it psychological? That's why I've been asking since yesterday, is it psychological, the calling out powers on steroids?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
So, it's psychological?
GENERAL GUERRERO:
It's partly psychological, Your Honor.
CHIEF JUSTICE SERENO:
Okay, partly psychological. What do you think makes people more cooperative in a martial law setting?
GENERAL GUERRERO:
It's that fact that [a] strong authority is in charge.
xx xx
A picture, an image of a strong ...
CHIEF JUSTICE SERENO:
It's an image?
GENERAL GUERRERO:
Yes.
CHIEF JUSTICE SERENO:
So, the President issuing an order to civilians without anyone being a martial law administrator or implement[e]r is a weak message. But if you are the martial law implement[e]r, that's a strong message to comply?
GENERAL GUERRERO:
Your Honor, the President is the Commander-in-Chief.
xx xx
CHIEF JUSTICE SERENO:
xxx This is what martial law does. Because even in my dissenting opinion, xxx I said, Until now nobody has really answered the question of what martial law is for? So, finally we have this chance, can you tell us, candidly, why do we need martial law? Because I'm open to any idea, at this point. Why?
GENERAL GUERRERO:
As I have said, the problem in Mindanao as in the other parts of the country is multi-dimensional, the armed conflict, Ma'am, is just a manifestation of a deeper problem in society.
CHIEF JUSTICE SERENO:
So, there is a deeper problem in society. So, the SOLGEN is a, there is paranoia, or I'm sorry, one of the theories propounded is there is paranoia on the part of the petitioners. But you are now presenting to us that there is a deep problem that must be addressed and we need martial law as a psychological mooring because, first, we have observed greater compliance on the part of all government entities. What else? Can you enumerate for us? Because you only concluded that it was very good but you never in your presentation and J2 never presented why it was effective? So, that's first, there is more, there's easier compliance. The second reason?
GENERAL GUERRERO:
It enhances climate of safety; safety and security, Your Honor.
CHIEF JUSTICE SERENO:
It enhances how?
GENERAL GUERRERO:
The people, especially in the affected areas of rebellion, (inaudible) and I was able to talk to the (inaudible), that they appreciate the implementation of martial law in their respective localities.
xx xx
CHIEF JUSTICE SERENO:
Yeah, I know, and how do they describe it?
GENERAL GUERRERO:
For instance, I was just there the other day in Basilan and I was able to talk to some of the residents there.
CHIEF JUSTICE SERENO:
Yes.
GENERAL GUERRERO:
And they said that they prefer the presence of the soldiers in the area and that they would not want the soldiers to pull out. And in fact they are supporting the implementation of martial law.
CHIEF JUSTICE SERENO:
So, martial law enhances the presence of the military, that's your second reason. And because it enhances the presence of the military there is greater safety on the part of the civilian population?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
Okay. What else?
xx xx
Because you know, if we are able to define really why you need martial law, we would have a breakthrough in this case. So, help me here. Third reason?
GENERAL GUERRERO:
To be honest with you, Your Honor, we have not really fully exploited the possibilities, but we can gain from the declaration of martial law, the present martial law.
xx xx
CHIEF JUSTICE SERENO:
So, there is still an ephemeral, undefinable element to martial law which you think is very effective but to some it is being characterized as paranoia, but there is fear. So, in other words, is it not the yin and yang concept here, there is the fear element, the fear enhances or the fear paralyzes and makes it possible that the civilian population will believe that their democratic rights are being endangered. Is that two sides of the same face, is it a janus situation here?
GENERAL GUERRERO:
Yes, Your Honor, and that is something that we, in the military, [are] also trying to balance in terms of perception and in terms of our actuations.
CHIEF JUSTICE SERENO:
So, fear can be used positively and fear is being said as [imposing] the cause of martial law in a negative way. So, is it not just an information campaign that needs to be done if you are going to be strong adheren[ts] to human rights that there is an information gap between the two interpretations? You agree?
GENERAL GUERRERO:
It could be, Your Honor. But I could not say for a fact because as I have said, if it would be an informational campaign then definitely it is not purely a military effort, Your Honor.
CHIEF JUSTICE SERENO:
Okay. So, what I see so far, what you have said is that there is a psychological impact on civilian authorities, there is a psychological impact on the civilian authorities in the areas where rebellion or terrorism abounds. So, [those are] the things that you have enumerated to the Court so far. So, we need these because it creates a favorable mindset for us to address the security problem in Mindanao, is that what you're saying?
GENERAL GUERRERO:
Yes, Your Honor.
xx xx
CHIEF JUSTICE SERENO:
So, you are actually asking this Court to say that there is factual basis sufficient to justify the extension of martial law because you have noted effectivity in your operations because of the martial law and you have noticed that its effectivity is brought about by the psychological impact it has on the authorities in the areas as well in the civilian population. That's a good summation?
GENERAL GUERRERO:
Partly, Your Honor. But as I have said, it's not only psychological, Your Honor. We have to look at the added dimensions as well.
CHIEF JUSTICE SERENO:
Logistical, is there a logistical efficiency?
GENERAL GUERRERO:
Yes, Your Honor. Financial.
CHIEF JUSTICE SERENO:
Why? Logistical and financial, why?
GENERAL GUERRERO:
Again, with the martial law authority, with the authority, enhanced authority given to us by martial law we are able to enjoin other agencies to cooperate with us and help us in addressing ...
CHIEF JUSTICE SERENO:
So, without martial law, they wouldn't be fast in helping provide you with necessary transportation, fuel, etc.?
GENERAL GUERRERO:
Not necessarily fuel and transportation, Your Honor.
CHIEF JUSTICE SERENO:
But like what?
GENERAL GUERRERO:
Information, Your Honor.
CHIEF JUSTICE SERENO:
In.formation. Information is one. They are able to relay information
faster because of martial law?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF .JUSTICE SERENO:
Evacuation is helped?
GENERAL GUERRERO:
Mobilization, Your Honor.
CHIEF JUSTICE SERENO:
Mobilization. Financial, you said financial, what financial efficiencies are being effected because of martial law?
GENERAL GUERRERO:
The rebels are able to channel in us report to conduits to the various channels in the localities.
xx xx
CHIEF JUSTICE SERENO:
But you just happened to be of the impression that things are made easier for you?
GENERAL GUERRERO:
It's not the impression, Your Honor. We have been actually able to apply this, Your Honor, in my area when I was Eastern Mindanao Commander.41
Nowhere in the exchange or the pleadings is there any indication of the factual or legal basis for claiming that Martial Law makes addressing public safety in the midst of rebellion easier, other than an undocumented experiential claim. But against this experiential claim of ease in military operations are the apparently documented claims of enhanced abuses under the existing Martial Law regime in Mindanao.42 These claims bring this Court to a point of transcendental importance, one that goes into its very reason for existence - when petitioners make out a case of probable excess in the exercise of power that leads to the violation of constitutional rights, and when Government is unable to categorically put its finger on why it needs Martial Law, then this Court must define the parameters according to the tests of necessity; otherwise, it ceases to genuinely exist as a bastion of democracy.
Determination of the Period of Extension
Distinction must be made between the examination by this Court of the basis for the extension of Martial Law per se on the one hand, and the period of extension on the other hand. This distinction is clear in the following constitutional deliberations:
MR. SUAREZ: Madam President.
THE PRESIDENT: Commissioner Suarez is recognized.1âшphi1
MR. SUAREZ: 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.
THE PRESIDENT: What does Commissioner Azcuna say?
MR. AZCUNA: Madam President, I believe that that is a different concept and should be voted on separately so as not to confuse the issue on the limitation of the period with the extension. My amendment would merely require that any extension should have the concurrence of both the President and the Congress. Commissioner Suarez may propose an amendment to limit the period of the extension.43 (Emphasis supplied)
The extension per se of Martial Law involves a two-step process. First, there must be an initiative from the President addressed to Congress requesting the extension of his prior proclamation of Martial Law. Second, Congress determines as a joint body whether or not the extension is proper. If it approves of the extension, it then likewise determines the period thereof.
The wording of the Constitution leaves an initial impression that the determination of the extension period is an exclusive congressional prerogative. However, a look into the constitutional deliberations seems to show that the determination of the period was intended to remain a joint executive-legislative act. This conclusion may be drawn from the following deliberations, which came about as a solution to Commissioner Suarez's proposal to fix a 60-day period of extension:
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.
MR. REGALADO: Is the Gentleman placing his amendment after "same" and before "if'?
FR. BERNAS: Yes.
MR. SUAREZ: Maybe that can be added after the final word "it" so that the clause would read: "if the invasion or rebellion shall persist and public safety requires it, FOR A PERIOD AS MAY BE [DETERMINED] BY CONGRESS."
FR. BERNAS: It is a question of style, Madam President. It seems to be very far from the verb.
THE 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. Arc 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 about 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 there but by giving the final decision to Congress, we are also preserving the idea that the President may not revoke what Congress has decided upon.44 (Emphases supplied)
The principle of collective judgment, as stated by Commissioner Ople, is retained through the following process: the President provides the facts showing the persistence of invasion or rebellion and its perceived threat to public safety. In turn, Congress evaluates the facts provided by the President and on the basis of those facts determines the period of extension.
Parameters for the Determination of
the Period of Extension
Indeed, Congress has been granted final authority in the determination of the period of extension. But as any grant of discretion goes, it is not unbridled. There are parameters that must be taken into consideration in the exercise of this discretion. It is clear from the constitutional deliberations that there was no intention to completely leave that exercise to Congress. Fr. Bernas himself said that the determination only "gives Congress a little flexibility on just how long the extension should be."45 There was no complete or unlimited flexibility granted. Rather, Congress must be mindful of the following parameters in fixing the period of extension.
First, the extension cannot be for an indefinite period of time - there must be a definite period fixed by Congress. This interpretation is apparent from the provision in Section 18, Article VII, which states that Congress may extend the proclamation of Martial Law "for a period to be determined by congress." A period is defined as "any point, space, or division of time."46 From Section 18 itself, it is clear that this period must be "determined." That is, the start and end points must be "limited," "fixed," "decided," or "settled" conclusively by Congress.47 Otherwise, to effect the extension for an indefinite period would amount to Congress' abdication of the foregoing positive duty imposed upon it by the Constitution.
Further, the following discussion shows that prior to the approval of Fr. Bernas' amendment, Commissioner Suarez suggested a fixed period for the extension, supposedly to protect the interest of the citizens:
MR. SUAREZ: xx x.
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 on 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 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.48 (Emphases supplied)
The 60-day period, however, was not approved for its perceived impracticality. Nevertheless, the commissioners did not disagree on the validity of the point made by Commissioner Suarez - that there must be a fixed period. This was apparently the reason why Fr. Bernas did not negate the need for determining or fixing the period when he proposed his amendment, which was subsequently approved by the body. Only, the amendment specified Congress as the entity that shall fix the period.
Second, the extension must be for a reasonable period. This is clear from the following deliberations:
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 cutoff of 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 be 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.49 (Emphases supplied)
The question now is what would make the period of extension reasonable? The term "reasonable" is defined as "fair, proper, just, moderate, suitable under the circumstances."50 It is also to be understood as "rational; governed by reason."51 As can be gathered from the deliberations quoted above, and in light of the definitions provided, the question of reasonableness is closely related to the existence of the two requisites for the exercise of the authority to extend - that the invasion or rebellion persists, and public safety requires it. That is, there must be a rational match between the existence of the two requisites and the period of extension.
Therefore, to come up with a reasonable period, Congress has to conduct an independent investigation and evaluation of the persistence of invasion or rebellion and the requirement of public safety. Admittedly, there must be due consideration of what is happening on the ground, which is possible only if Congress is in close coordination with the President. It is in this manner that the determination of the period of extension remains a joint judgment of the President and Congress. It was acknowledged during the deliberations that the President has the most accurate idea of how long it would take to quell the persisting invasion or rebellion and secure the public. For Congress to conduct its own investigation of the matter would necessitate consulting the Chief Executive.
Nevertheless, a close coordination with the President does not amount to a blind submission to him - rather, Congress has to independently determine the length of extension, so that it can even reduce or increase the period proposed by the President. The following deliberations are enlightening:
MR. DAVIDE: I would like to propose that instead of "AT THE INSTANCE OF," we use UPON THE PETITION OF. It will be upon the petition of the President to confirm the fact that any extension is just a matter of his request, not his prerogative.
THE PRESIDENT: Not on his own initiative?
MR. DAVIDE: No, not on his own initiative, Madam President.
MR. AZCUNA: I believe the word "petition" is more proper for the courts, Madam President. Maybe with the intention put on the record that this is not mandatory upon Congress to grant an extension simply because the President is requesting it, I am willing to change it to INITIATIVE instead of "INSTANCE" but not "PETITION" because "petition" has more relevance to courts. So it will be "UPON THE INITIATIVE of the President."52
xx xx
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 about 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 there but by giving the final decision to Congress, we are also preserving the idea that the President may not revoke what Congress has decided upon.53
xx xx
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.
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.54 (Emphases supplied)
Ultimately, Congress must be able to clearly demonstrate the reasonableness of the period in its resolution approving the extension and fixing the period thereof.
Judicial Power of Review of Martial
Law Extension and the Period
Thereof
The third paragraph of Section 18, Article VII of the Constitution, provides that the sufficiency of the factual basis for the extension of Martial Law may be reviewed by the Court:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)
As can be gleaned from the discussions above, the extension of a proclamation of Martial Law necessarily entails a determination of the period of its extension. Therefore, the Court's exercise of its review power is not limited to a resolution of the factual sufficiency of the extension per se. That power likewise includes a review of the sufficiency of the factual basis of the period of extension.
While the question that faces the Court is whether or not such period is reasonable, this question can be answered through an examination of the factual basis of the extension per se.
Specifically, the Court has to look into the public safety element - whether the period fixed is commensurate with the necessity of public safety. This determination essentially involves a calibration exercise as previously discussed. Therefore, in the same way that this duty inevitably requires a delineation of the areas to be validly covered by Martial Law,55 the Court also has the duty to determine the length of period necessary to quell the existing threat to public safety. There must be a calibration based on the proportionality of the danger at hand to the period of extension. As a result, the Court may do one of three things: affirm the period fixed by Congress, extend it, or shorten it.
Burden of Proof
Lagman v. Medialdea established that the President carried the burden of proof to show that there was sufficient factual basis for the proclamation of Martial Law.56 The Court ruled that "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."57
As discussed above, the extension of the period of effectivity of the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus is a joint executive-legislative act. The Constitution has vested both the President and Congress with the power of extending the Martial Law period, with the President initiating it and Congress actually extending or not extending the period. The President provides Congress with the necessary factual basis to justify his request for the extension of the Martial Law period. Congress must then assess the sufficiency of the factual basis. Both the executive and the legislative branches of Government bear the burden of proving the sufficiency of the factual basis.
In response to petitioners' claim that the President bears the burden of proving the sufficiency of the factual basis for the Martial Law extension, respondents argue that petitioners are the ones who must prove that rebellion has already been completely quelled. According to respondents, the Court in Lagman v. Medialdea has already ruled that rebellion exists in Mindanao and, following the doctrine of conclusiveness of judgment, the resolution of the instant case must be confined to the issue of whether or not the rebellion has been completely quelled.
In effect, respondents argue that instead of them proving that rebellion persists, the burden of proof has already shifted to petitioners to show that rebellion no longer exists.
That contention is erroneous.
To justify the extension of the period of Martial Law, the Constitution provides two requisites: (1) invasion or rebellion persists, and (2) public safety requires it. The persistence of rebellion is a factual issue that must be proven. The initial proclamation of Martial Law is distinct from its extension, and respondents cannot base their claim of the existence of rebellion merely on Lagman v. Medialdea. Certainly, Lagman was decided based on the circumstances surrounding the time of the initial proclamation of Martial Law. That actual rebellion was found to have existed then does not automatically lead to a conclusion that rebellion still persisted at the time the period was extended.
Furthermore, respondents cannot shift the burden of proof to petitioners. As held by Justice Caguioa in his Dissenting Opinion in Lagman v. Medialdea:
[C]onsidering that the declaration of martial law and suspension of the privilege of the writ can only be validly made upon the concurrence of the requirements of the Constitution, the very act of declaration of martial law or suspension of the privilege of the writ already constitutes a positive assertion by the Executive that the constitutional requirements have been met - one which it is in the best position to substantiate. To require the citizen to prove a lack or insufficiency of factual basis is an undue shifting of the burden of proof that is clearly not the intendment of the framers. (Emphasis supplied)
In fine, it can be concluded that the burden of proof remains with the Government. For purposes of fulfilling the constitutional requirements of a valid declaration of Martial Law and its extension, the burden of proof never shifts to petitioners. It is the constitutional duty of the Government to show that the requirements of the Constitution have been met.
Abandonment of the Permissive Approach
In my Dissenting Opinion in Lagman v. Medialdea, I espoused a permissive approach in weighing the evidence or drawing from interpretative sources. I adopted that approach considering that this was the first post-Marcos examination of Martial Law undertaken by the Court under the 1987 Constitution. No rule or jurisprudence existed then that sufficiently guided the President in crafting the Martial Law proclamation under the present Constitution.
Pursuant to this permissive approach, I examined the available evidence more closely in order to understand what the correct description of the realities in Mindanao should have been - beyond what was described in Proclamation No. 216, the President's Report to Congress, and the Comment of the Office of the Solicitor General filed before this Court.
After adopting the permissive approach, I concluded that Martial Law was valid not only in Marawi City, but in the entire province of Lanao del Sur, as well as in the provinces of Maguindanao and Sulu.
It is important, however, to emphasize that the application of the permissive approach was pro hac vice in view of the paucity of rules and jurisprudence to guide an evidentiary determination of the sufficiency of the factual basis for the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus. Considering the views expressed in Lagman v. Medialdea, a permissive approach in considering the evidence in this sui generis proceeding cannot remain to be the rule.
Allow me to point out that contrary to the majority's position in Lagman v. Medialdea that they are unable to rule on the appropriate coverage of Martial Law, I was able to demonstrate in my dissent that it was possible for this Court to undertake an independent factual review of the coverage of Martial Law. While I agree that the Court could recognize the unique fact-finding capabilities of the executive department, it did not follow that the conclusions derived by the President from these facts were to be adopted blindly by this Court. Rather, the Court should have been able to arrive at an independent conclusion after a careful review of the facts provided.
In the Resolution dated 5 December 2017 in Lagman v. Medialdea, the majority dabbled in surmises and conjectures by saying that "there is always a possibility that the rebellion and other accompanying hostilities will spill over."58 Behind a sweeping generalization that "martial law is a flexible concept,"59 the majority opinion posited that the precise extent or range of the rebellion and the public safety requirement could not be measured by exact metes and bounds.
However, this is not really the case. The elements of actual rebellion and public safety are inflexible requirements for the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus. They also provide a sufficient guide for this Court to determine the sufficiency of the factual basis for that declaration.
Worse than the Court's act of effectively abdicating its duty to fully review the President's action under Article VII, Section 18 of the Constitution, is its failure to lay down parameters for the future review of the President's same or similar actions. Weak, sweeping statements today can encourage their misuse as precedents in future cases.
Factual Basis for the Extension of Martial
Law in Mindanao
In Resolution of Both Houses (RBH) No. 4 dated 13 December 2017,60 the Congress of the Philippines determined that rebellion persists, and that public safety indubitably requires the further extension of Proclamation No. 21661 declaring a state of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao. In a joint session that yielded 240 affirmative votes, Congress approved the extension for a period of one year from 1 January to 31 December 2018.
Congress took note of the following essential facts:
1. Despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion.
2. The Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area.
3. The Bangsamoro Islamic Freedom Fighters (BIFF) continues to defy the Government by perpetrating at least 15 violent incidents during the Martial Law period in Maguindanao and North Cotabato.
4. The remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and the Zamboanga Peninsula remain a serious security concern.
5. The New People's Army (NPA) took advantage of the situation and intensified their decades-long rebellion against the Government and stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and to supplant the country's democratic form of government with Communist rule.
RBH No. 4 was issued by Congress in connection with the President's letter dated 8 December 2017 requesting the further extension of Proclamation No. 216 for a period of one year or for such other period of time as Congress may determine. The report of the President in his letter gave the following particulars of the foregoing essential facts narrated in RBH No. 4:
1. At least 185 persons listed in the Martial Law Arrest Orders have remained at large and, in all probability, are presently regrouping and consolidating their forces.
2. The remnants, together with their protectors, supporters, and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical buildup, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also Sulu and Basilan. Their activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and a Wilayat not only in the Philippines, but also in the whole of Southeast Asia.
3. Turaifie is said to be Hapilon's potential successor as Amir of DAESH Wilayat in the Philippines and Southeast Asia.
4. In 2017, the BIFF initiated at least 89 violent incidents consisting mostly of harassments and roadside bombings directed at government troops.
5. In 2017, the ASG conducted at least 43 acts of terrorism including attacks using improvised explosive devices, harassments, and kidnappings. These acts resulted in the killing of 8 civilians, 3 of whom were beheaded.
6. In 2017, the NPA perpetrated at least 385 atrocities in Mindanao, which resulted in 41 killed and 62 wounded in action on the part of the government forces. These incidents also resulted in the killing of 23 and the wounding of 6 other civilians. The most recent incident was the ambush on 9 November 2017 that resulted in the killing of 1 and wounding of 3 Philippine National Police (PNP) personnel, as well as in the killing of a four-month-old infant and the wounding of 2 other civilians.
7. Apart from perpetrating these atrocities, the NP A also committed at least 59 arson incidents in Mindanao targeting businesses and private establishments and destroying an estimated ₱2.2 billion worth of properties. The most significant attacks were launched against the Lapanday Food Corporation in Davao City on 9 April 201 7 and the Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental, on 6 May 2017, resulting in the destruction of properties valued at ₱l .85 billion and ₱l09 million, respectively.
8. These activities of the NP A constrained the President to issue Proclamation No. 36062 on 23 November 2017 declaring the termination of peace negotiations with the Communist Party of the Philippines-New People's Army-National Democratic Front (CPPNPA- NDF).
9. On 5 December 2017, the President issued Proclamation No. 37463 declaring the CPP-NP A-NDF a designated/identified terrorist organization under Republic Act No. (R.A.) 10168 (The Terrorism Financing Prevention and Suppression Act of 2012). The presidential proclamation was coupled with a directive to the Secretary of Justice to file a petition in the appropriate court praying that the CPP-NP ANDF be proscribed for being a terrorist organization under R.A. 93 72 (Human Security Act of 2007).
The request of the President to the Congress was prompted by the letter dated 4 December 2017 from Secretary of National Defense Delfin N. Lorenzana. The latter recommended "the extension of Martial Law for another 12 months or 1 year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), and the communist terrorists (CTs) and their coddlers, supporters and financiers, and to ensure speedy rehabilitation, recovery and reconstruction efforts in Marawi, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao."
Secretary Lorenzana indicated that the armed struggle in Mindanao was still relatively strong. He emphasized that the proposed extension would significantly help not only the AFP but also other stakeholders in quelling the ongoing DAESH-inspired DIWM groups. He also said that the extension would help put an end to the rebellion being staged by communist terrorists, as well as in restoring public order, safety and stability in Mindanao.
Secretary Lorenzana attached the letter of General Guerrero, who was also recommending the extension for compelling reasons based on "current" security assessment. The latter added the following information in support of his request for the extension of the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus:
1. The remnants of the groups of Hapilon and the Maute brothers, with the help of their sympathizers and supporters, are still capable of strengthening their organization in preparation for the conduct of more hostilities in the Lanao provinces and other vulnerable areas in Mindanao.
2. The Turaifie Group is undertaking propaganda to show that it is still a capable force to be reckoned with.
3. The BIFF is still equipped with 388 manpower and 328 firearms.
4. Mindanao, particularly Eastern Mindanao, continues to be the hotbed of communist insurgency and accounts for 47% of the total manpower, 48% of firearms, 51% of the affected barangays and 45% of guerrilla fronts nationwide.
5. Of the 14 active provinces in terms of communist insurgency, 10 are in Mindanao.
6. The Komisyon Mindanao (KOMMID) of the Communists Terrorists is now capable of sending augmentation forces, particularly party cadres, to Northern Luzon.
7. The infiltration, recruitment, indoctrination and political mobilization of indigenous peoples (IP) remain unabated with the support of party organizers from the urban areas.
8. The ASG is currently holding nine kidnap victims in captivity.
In all, General Guerrero offered the following as justification for the recommended extension:
1. The DAESH-inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western andEastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;
2. Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan De Oro, General Santos, Zamboanga and Cotabato;
3. The CTs have been pursuing and intensifying their political mobilization (army, party and mass-base building; rallies, pickets, and demonstrations; financial and logistical build-up), terrorism against innocent civilians and private entities, and guerrilla warfare against the security sector, and public and government infrastructures;
4. The need to intensify the campaign against the CTs is necessary in order to defeat their strategy, stop their extortion, defeat their armed component, and to stop their recruitment activities;
5. The threats being posed by the CTs, the ASG, and the presence of remnants, protectors, supporters and sympathizers of the DAESH/DIWM pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao;
6. The 2nd extension of the implementation of Martial Law coupled with the continued suspension of the privilege of the writ of habeas corpus in Mindanao will significantly help not only the AFP, but also the other stakeholders in quelling and putting an end to the on-going DAESH-inspired DIWM groups and CT-staged rebellion, and in restoring public order, safety, and stability in Mindanao; and
7. In seeking another extension, the AFP is ready, willing and able to perform anew its mandated task in the same manner that it had dutifully done so for the whole duration of Martial Law to date, without any reported human rights violation and/or incidents of abuse of authority.64
Analysis of the Factual Claims of the
Government
In Lagman v. Medialdea, the majority observed there was no question that there was an armed public uprising in Marawi City. The only contention of the petitioners therein was that the anned hostilities did not constitute rebellion in the absence of the element of a culpable political purpose.65 Their argument was found to be unmeritorious in view of the conclusion of the Court that the President had sufficient factual basis tending to show that actual rebellion existed.66
Under Section 18, Article VII of the Constitution, an extension of the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus may be made by Congress, upon the initiative of the President, for a period to be determined by it if the invasion or rebellion persists and public safety requires it.
Thus, the question posed to this Court in the instant cases is whether or not rebellion persists and public safety requires the extension.
Considering the facts alluded to by the President, Secretary of Defense Lorenzana, General Guerrero, and ultimately Congress, the answer is no. Their pronouncements in fact show that there is no armed public uprising that justifies the conclusion that rebellion persists.
With respect to RBH No. 4, the fact that the rebel groups have "continued to rebuild their organization through recruitment and training of new members and fighters to carry on the rebellion,"67 or that the Turaifie Group was "monitored to be planning to conduct bombings,"68 or that the remnants of the ASG "remain a serious security concern"69 shows that there is no armed public uprising or taking up of arms against the Government. At most, what the facts show is that there is danger of an armed public uprising that may turn out to be imminent.
The President can always call on the armed forces to suppress an imminent danger of rebellion. The deliberation of the Constitutional Commission is clear in this regard:
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 source of a tremendous amount of irresistible temptation. And so, to better protect the liberties of the people, we preferred to eliminate that. So. we submit it to the body for a vote.
MR. PADILLA: I would just like to state that the term OR IMMINENT DANGER THEREOF appears in the 1935 and 1973 Constitutions and it has not even resulted in a multitude of sins, temptations nor confusion.
THE PRESIDING OFFICER (Mr. Bengzon): Will Commissioner de Castro speak in favor of the amendment?
MR. DE CASTRO: I am in favor of the amendment.
THE PRESIDING OFFICER (Mr. Bengzon): Commissioner de Castro is recognized.
MR. DE CASTRO: Section 15 speaks of actual rebellion and actual invasion, if we eliminate "OR IMMINENT DANGER THEREOF." When there is already actual invasion or rebellion, the President no longer suspends the privilege of the writ of habeas corpus because we already have actual shooting. There is nothing more to be remedied by the Chief Executive. But when we put the words "OR IMMINENT DANGER THEREOF," perhaps they are still assembling; they are still preparing for their departure or their provisions for immediate rebellion. The Chief Executive then has the power to suspend the writ of habeas corpus, but with the situation I mentioned there is nothing more to suspend.
MR. REGALADO: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Bengzon): Commissioner Regalado is recognized.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Bengzon): The Floor Leader 1s recognized.
MR. REGALADO: I yield to the Floor Leader.
MR. RAMA: I ask that Commissioner Concepcion be recognized.
THE PRESIDING OFFICER (Mr. Bengzon): Commissioner Concepcion is recognized.
MR. CONCEPCION: The elimination of the phrase "IN CASE OF IMMINENT DANGER THEREOF" is due to the fact that the President may call the Armed Forces to prevent or suppress invasion, rebellion or insurrection. That dispenses with the need of suspending the privilege of the writ of habeas corpus. References have been made to the 1935 and 1973 Constitutions. The 1935 Constitution was based on the provisions of the Jones Law of 1916 and the Philippine Bill of 1902 which granted the American Governor General, as representative of the government of the United States, the right to avail of the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law in the event of imminent danger. And President Quezon, when the 1935 Constitution was in the process of being drafted, claimed that he should not be denied a right given to the American Governor General as if he were less than the American Governor General. But he overlooked the fact that under the Jones Law and the Philippine Bill of 1902, we were colonies of the United States, so the Governor General was given an authority, on behalf of the sovereign, over the territory under the sovereignty of the United States. Now, there is no more reason for the inclusion of the phrase "OR IMMINENT DANGER THEREOF" in connection with the writ of habeas corpus. As a matter of fact, the very Constitution of the United States does not mention "imminent danger." In lieu of that, there is a provision on the authority of the President as Commander-in-Chief to call the Armed Forces to prevent or suppress rebellion or invasion and, therefore, "imminent danger" is already included there.70 (Emphasis supplied)
The 15 violent incidents allegedly committed by the BIFF during the Martial Law period have not been described with sufficient particularity as to enable this Court to conclude that an armed public uprising with a culpable political purpose has been mounted by the BIFF against government forces. More important, these alleged violent incidents during the Martial Law period do not by themselves justify the extension.
Neither does the letter of the President dated 8 December 2017 point to the fact that an armed public uprising is still underway. He reported that at least 185 persons who had been sought to be arrested during Martial Law remained at large and, "in all probability, are presently regrouping and consolidating their forces."71 He also stated that "Turaifie is said to be Hapilon's potential successor as Amir of DAESH Wilayat in the Philippines and Southeast Asia."72 There is enough speculation in these statements to conclude that the Government is not even sure about the gravity of the threats that these "remnants" might pose. An impression of a foreboding rebellion is also given by the statement that "[t]heir activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole of Southeast Asia."73
The President has alluded to 89 violent incidents initiated by the BIFF and 43 acts of terrorism committed by the ASG last year. Aside from the fact that these violent incidents and acts of terrorism have not been described with sufficient particularity, there is a clear possibility that most of them have already been cited as justification for the President's original proclamation of Martial Law and suspension of the privilege of the writ of habeas corpus and likewise for Congress' approval of the first extension.
That rebellion is potentially imminent is also shown by the letter of General Guerrero. He states that the remnants of the groups of Hapilon and the Maute brothers are "still capable of strengthening their organization with the help of their sympathizers and supporters in preparing for the conduct of more hostilities in the Lanao provinces and other vulnerable areas in Mindanao."74 Notably, the Turaifie Group is not even mounting an armed uprising, as it is merely undertaking "propaganda to show that it is still a capable force to be reckoned with."75
That the BIFF is still equipped with 388 manpower and 328 firearms or that the ASG currently has nine kidnap victims held in captivity, while absolutely deplorable, cannot justify the extension of Martial Law and the suspension of the privilege of the writ of habeas corpus. While the BIFF may be armed, the statement fails to show that the firearms are being used for the conduct of a public uprising coupled with a culpable political purpose. It is also difficult to see the culpable political purpose behind the kidnap of nine innocent civilians.
The Inclusion of the CPP-NPA-NDF
It is clear from the letter of the President that the "decades-long rebellion" of the NP A had very little to do with the uprising of the DAESH-inspired DIWM, and whatever connection there was consisted mainly of their similarity in geographical location.
The Solicitor General believes otherwise. He posits that the CPP-NPA rebellion was already included as a ground for the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus in Proclamation No. 216, as well as in the request to Congress for the first extension:
JUSTICE CARPIO:
Thank you. Counsel, let['s] settle it. Just one more point. In the original declaration of martial law, only the Maute rebellion was mentioned specifically, correct?
SOLICITOR GENERAL CALIDA:
There were others, Your Honor.
JUSTICE CARPIO:
And other rebels? But not, no other specific rebellions? Maute or Maute group [DAESH] is ISIS inspired, but no and other rebels?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Okay, so no specific mention of CPP-NPA rebellion. It's just other rebels.
SOLICITOR GENERAL CALIDA:
Yes, but it is subsume[d] under that term, Your Honor.
JUSTICE CARPIO:
Yes, okay. Now, in the first extension. There was also no also [sic] mention of CPP-NP A specifically it was not mentioned. Correct?
SOLICITOR GENERAL CALIDA:
Actually, Your Honor, the [P]resident mentioned it, Your Honor. And may I read for the record.
JUSTICE CARPIO:
First extension?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
As the government security forces intensified efforts during the implementation of martial law, one hundred eleven members of the New People's Army (NPA) had been encountered and neutralized while eighty-five forearms have been recovered from them.
JUSTICE CARPIO:
But what was [sic] the first extension merely extended the initial declaration. Correct?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
So what governs is the initial declaration? Because you were just extending it.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor. But I mentioned the term.
JUSTICE CARPIO:
Yes.
SOLICITOR GENERAL CALIDA:
And other rebel groups includes the NP A, Your Honor.
JUSTICE CARPIO:
Yeah, but the first proclamation of the President in the first declaration mentions other rebels.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Without specifying what these other rebels are, other rebels aside from the Maute Group, there were other rebels.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Now, in this second extension, it says now, CPP-NPA?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Now, my question is, when the Constitution says that if the rebellion persists, then Congress may extend. When you use the word persist and extend, you [are] referring to the original ground for declaration of martial law. Correct?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor. But as I've said, it covers the NP A because the Court can take judicial notice the oldest rebel group in the Philippines is the NPA. They have been fighting the government way back in 1960s, Your Honor.
JUSTICE CARPIO:
You are saying that when the Congress approved or approved the extension, the first extension, they were also referring to the CPP-NPA rebellion? Is that what you are saying?
SOLICITOR GENERAL CALIDA:
That's what I assumed, Your Honor.
JUSTICE CARPIO:
Okay, and also this Court, also when the Court approved.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
When the Court said that it's constitutional, the Court understood that the rebellion that the ground for the declaration of martial law included the rebellion of the CPP-NPA?
SOLICITOR GENERAL CALIDA:
Yes.76
The Solicitor General is, of course, mistaken. Proclamation No. 216 was issued on the basis of the rebellion of the ISIS-inspired Maute Group. In Lagman v. Medialdea, the Court focused on the facts that had convinced the President that "there is probable cause or evidence showing that more likely than not, a rebellion was committed or being committed."77 The facts cited at the time are as follows:
a) Facts, events and
information upon which the
President anchored his decision to
declare martial law and suspend the
privilege of the writ of habeas
corpus.
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM, the Court will consider only those facts and/or events which were known to or have transpired on or before that time, consistent with the scope of judicial review. Thus, the following facts and/or events were deemed to have been considered by the President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself:
1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account of lawless violence in Mindanao;
2. Series of violent acts committed by the Maute terrorist group including:
a) Attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers;
b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute Group and other detainees;
3. On May 23, 2017:
a) Takeover of a hospital in Marawi;
b) Establishment of several checkpoints within Marawi;
c) Burning of certain government and private facilities;
d) Mounting casualties on the part of the government;
e) Hoisting the flag of ISIS in several areas; and
f) 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;
and the Report submitted to Congress:
1. Zamboanga siege;
2. Davao bombing;
3. Mamasapano carnage;
4. Cotabato bombings;
5. Sultan Kudarat bombings;
6. Sulu bombings;
7. Basilan bombings;
8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG and the Maute Group;
9. Escalation of armed hostility against government troops;
10. Acts of violence directed not only against government authorities and establishments but civilians as well;
11. Takeover of major social, economic and political foundations which paralyzed Marawi City;
12. The object of the armed hostilities was to lay the groundwork for the establishment of a DAESH/ISIS wilayat or province;
13. Maute Group has 263 active members, armed and combat-ready;
14. Extensive networks or linkages of the Maute Group with foreign and local armed groups;
15. Adherence of the Maute Group to the ideals espoused by ISIS;
16. Publication of a video showing Maute Group's declaration of allegiance to ISIS;
17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group;
18. Events on May 23, 2017 in Marawi City, particularly;
a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various government and privately-owned facilities;
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the escape of inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel and/or locked them inside the cells' confiscated cellphones, personnel-issued firearms, and vehicles;
c) by 4:30 PM, interruption of power supply; sporadic gunfights; city-wide power outage by evening;
d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station, commandeered a police car;
e) BJMP personnel evacuated the Marawi City Jail and other affected areas;
f) control over three bridges in Lanao del Sur, namely Lilod, Bangulo, and Sauiaran, was taken by the rebels;
g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;
h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters in the church, and the Shia Masjid Moncado Colony;
i) taking of hostages from the church;
j) killing of five faculty members of Dansalan College Foundation;
k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot School:
l) overrunning of Amai Pakpak Hospital;
m) hoisting the ISIS flag in several areas;
n) attacking and burning of the Filipino-Libyan Friendship Hospital;
o) ransacking of a branch of Landbank of the Philippines and commandeering an armoured vehicle;
p) reports regarding Maute Groups' plan to execute Christians;
q) preventing Maranaos from leaving their homes;
r) forcing young Muslims to join their group; and
s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government personnel, and committing armed uprising against and open defiance of the Government.78
During the Oral Arguments for the instant petitions, the Solicitor General argued that the atrocities committed by the NP A were in fact already included in Proclamation No. 216 as shown by the use of the phrase "other rebel groups" in the sixth WHEREAS Clause. According to him, the NP A was not categorically identified in view of the then ongoing peace talks with the CPP-NPA-NDF:
JUSTICE TIJAM: Considering that the government made mentioned [sic] of the NPA rebels as one of the reasons for asking for the extension of martial law, this does not seem to fall within the ambit of the word persist since the original declaration was made on the basis of the rebellion committed by the Maute in Mindanao and no mentioned [sic] whatsoever was made of the NPA?
SOLICITOR GENERAL CALIDA: Actually, there's a phrase there, Your Honor, that will include the NP A in the proclamation of the President, Proclamation No. 216, there's a phrase there which says, 'of other rebels.' And because there [were] peace negotiations during that time as a matter of comity and to the other party, the NPA was not explicitly included there but if you read the entire contents of the letter of the President and the proclamation of the President, Your Honor, it is very clear that all rebels including NPA which has waged the longest time of rebellion in the Philippines they are included there. In fact, Your Honor, in the recommendation of the Chief of Staff the NP A was explicitly mentioned in that recommendation.79
Even if we were to accept the argument that the atrocities of the NP A were already included among the grounds justifying the issuance of Proclamation No. 216, the reality is that when the Court upheld the sufficiency of the factual basis for the declaration of Martial Law and the suspension of the privilege of the writ of habeas cmpus in Lagman v. Medialdea, no facts involving the NPA were examined by this Court for the determination of probable cause or of evidence showing that, more likely than not, a rebellion had been committed or was being committed.
Clearly, for the purposes of the Court in Lagman v. Medialdea, Proclamation No. 216 did not include the "decades-long rebellion" of the NPA as factual basis.
Thus, for the Court now to determine that rebellion "persists," it can only do so by answering the question of whether or not the rebellion of the ISIS-inspired Maute Group or of the DAESH-inspired DIWM persists. The addition of a new actor as factual basis for arguing that a rebellion persists is self-contradictory and cannot be accepted.
Whether "defanged" or not, the present extension of the period of effectivity of the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus has not been shown to be necessary for public safety. Petitioners are more than justified in reminding this Court and respondents of the lessons of Martial Law past.
Accordingly, I vote to declare that there is no sufficient factual basis for the extension of the period of effectivity of the declaration of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, and that Resolution of Both Houses No. 4 dated 13 December 2017 should be struck down as unconstitutional.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
1 Decision, p. 34.
2 Id. at 57-59. The ponencia justifies this preemptive approach by using the language in the amicus curiae brief of Fr. Joaquin Bernas in Fortun v. Gloria Macapagal-Arroyo.
3 Lagman v. Medialdea, G.R. Nos. 231658, 231771, and 231774, 4 July 2017.
4 TSN, 14 June 2017, p. 122.
JUSTICE CARPIO:
x x x You earlier said that there is not much difference between the martial law powers of the president and his calling out powers under the present Constitution. xxx
xx xx
What is that difference?
SOLICITOR GENERAL CALIDA:
It's like a sentence, instead ofa period there's an exclamation point, Your Honor.4
xx xx
JUSTICE CARPIO:
Psychological?
SOLICITOR GENERAL CALIDA:
Psychological probably. It's an exclamation point.
JUSTICE CARPIO:
"Gulpi de gulat?"
SOLICITOR GENERAL CALIDA:
Yes, Your Honor. So you better listen to me now because I'm imposing martial law. (TSN, 14 June 2017, 117-122).
5 Id. at 138.
CHIEF JUSTICE SERENO:
I [am] very much enlightened by the new phrase that you have pronounced this afternoon which was martial law. As we understand it is the calling out powers on steroids.
SOLICITOR GENERAL CALIDA:
Thank you, Your Honor.
6 Joaquin Bernas, The 1987 Constitution of the Philippines: A Commentary 898 (2009).
7 48 U.S. I (1849).
8 No relation to the German religious leader Martin Luther (circa 1483).
9 Jason Collins Weida, A Republic of Emergencies: Martial Law in American Jurisprudence. 36 Conn. L. Rev. 1397, 1403 (2004).
10 Luther, 48 U.S. at 45-47.
11 Id. at 45.
12 Id. at 45-46.
13 71 U.S.2(1866).
14 Id. at 127.
15 Id.
16 Weida, supra at 1412.
17 Id.
18 212 U.S. 78 (1909).
19 Id. at 85.
20 287 U.S. 378 (1932).
21 Id. at 399.
22 William Feldman, Theories of Emergency Powers: A Comparative Analysis of American Martial Law and the French State of Siege, 38 Cornell Int'l L.J. 1021, 1034 (2005).
23 Sterling, 287 U.S. at 399-400.
24 Feldman, supra at 1034.
25 327 U.S. 304 (1946).
26 Id. at 325-326.
27 J.W. Brabner Smith, Martial Law and the Writ of Habeas Corpus, 30 Geo. L.J. 697, 697 (1942).
28 Bernas, supra 903.
29 Sterling, 287 U.S. at 403-404.
30 Id. at 390-391.
31 Id. at 404.
32 Id. at 399-401.
33 Id. at 399.
34 Duncan, 327 U.S. at 324.
35 11 RECORD, CONSTITUTIONAL COMMISSION 402 (29 July 1986).
36 Id. at 412.
37 Lagman v. Medialdea, supra.
38 Dissenting Opinion, CJ Sereno, Lagman v. Medialdea. supra at 7.
39 In re Lansang v. Garcia, 149 Phil. 54 7 (1971).
40 Dissenting Opinion, CJ Sereno, Lagman v. Medialdea, supra at 8.
41 SN, 17 January2018, pp. 136-153.
42 Violation of Civil and Political Rights in Mindanao under the Rodrigo Duterte Government, May 23, 2017 to November 30, 2017, Based on reports gathered by Karapatan (Document "b" attached to Compliance dated 17 January 2018 submitted by Petitioners Cullamat, et al.).
During the oral arguments, General Guerrero admitted that there is at least one documented case of looting committed by a military personnel:
JUSTICE TIJAM:
Were there cases of abuses committed by military personnel and PNP personnel, as far as you know, whether it be a matter of torture, or killing, or looting, or destruction of property not arising from the war in Marawi?
GENERAL GUERRERO:
There were reports about looting, Sir, and about maltreatment but all of these were investigated and so far, Sir, there are records there is only one case of human rights violation and that is of looting that was filed against one.
JUSTICE TIJAM:
Under existing rules and regulation governing the Martial Law in Maguindanao, are these erring culpable military personnel exempt from liability?
GENERAL GUERRERO:
No, Sir, no, Your Honor. (TSN, 17 January 2018. pp. 75-76).
43 11 RECORD, CONSTITUTIONAL COMMISSION 508 (31July1986).
44 Id. at 509.
45 Id.
46 Black's Law Dictionary 1138 (6th Ed. 1990).
47 Merriam-Webster.com, 2018 <https://www.merriam-webster.com/dictionary/determine> (visited 26 January 2018).
48 II RECORD, CONSTITUTIONAL COMMISSION 508-509 (31July1986).
49 Id. at 509.
50 Black's Law Dictionary, supra at 1265.
51 Id.
52 II RECORD, CONSTITUTIONAL COMMISSION 508 (31 July 1986).
53 Id. at 509.
54 Id. at 510.
55 Dissenting Opinion, CJ Sereno. Lagman v. Medialdea, supra.
56 Lagman v. Medialdea, supra.
57 Id. at 61.
58 lagman v. Medialdea, supra at 7.
59 Id.
60 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 (I) Year from January l, 2018 to December 31, 2018.
61 Entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" dated 23 May 2017.
62 Entitled "Declaring the Termination of Peace Negotiations with the National Democratic Front-Communist Party of the Philippines-The New People's Army."
63 Entitled "Declaring The Communist Party Of The Philippines (CPP)-New People's Army (NPA) as a Designated/Identified Terrorist Organization Under Republic Act No. 10168."
64 Letter of AFP General Rey Leonardo B. Guerrero, pp. 3-4.
65 Lagman v. Medialdea, supra at 54.
66 Id. at 61.
67 Resolution of Both Houses No. 4 dated 13 December 2017, p. 2.
68 Id.
69 Id.
70 I RECORD, CONSTITUTIONAL COMMISSION, 773-774 (18 July 1986).
71 Letter of President Duterte to the Senate of the Philippines and House of Representatives, dated 8 December 2017, p. 3.
72 Id.
73 Id.
74 Letter of AFP General Rey Leonardo B. Guerrero to the President through the Secretary of National Defense, p. 2.
75 Id.
76 TSN, 17 January 2018, pp. 190-193.
77 Lagman v. Medialdea, supra at 53.
78 Id. at 54-58.
79 TSN, 17 January 2018, pp. 176-177.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO, J.:
The Case
These are consolidated petitions filed under the Court's power to review the sufficiency of the factual basis .of the extension of the proclamation of martial law and suspension of the privilege of the writ of habeas corpus (writ) under paragraph 3, Section 18, Article VII of the Constitution. The consolidated petitions challenge the constitutionality of Joint Resolution No. 4 dated 13 December 2017 (Joint Resolution No. 4)1 issued by the Senate and the House of Representatives, further2 extending the proclamation of martial law and suspension of the privilege of the writ in the whole Mindanao group of islands until 31 December 2018.
The Antecedent Facts
On 13 December 2017, the Senate and the House of Representatives, voting jointly, adopted Joint Resolution No. 4. The assailed issuance reads:
xx xx
WHEREAS, on May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao", to address the rebellion launched by the Maute Group and elements of the Abu Sayyaf Group and elements of the Abu Sayyaf Group in Marawi City, and to restore peace and order in Mindanao;
WHEREAS, the Senate and the House of Representatives, in a Special Joint Session held on July 22, 2017, extended 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, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested 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) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution";
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindartao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;
WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the Congress of the Philippines to extend, at the initiative of the President, such proclamation or suspension 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 on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus on the Whole Mindanao; Now, therefore, be it
Resolved by the Senate and the House of Representatives in a Joint Session Assembled, [t]o 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 a period of one (1) year from January 1, 2018 to December 31, 2018.3
Petitioners in G.R. Nos. 235935, 236061, 236145, and 236155 impugn the constitutionality of Joint Resolution No. 4.
Discussion
I vote to grant the consolidated petitions for three reasons. First, the Maute rebellion, which was the basis of Proclamation No. 216, already ceased. Second, threats to security posed by remnants of the defeated rebel groups do not constitute an actual rebellion. Third, neither can the NPA rebellion justify the extension of Proclamation No. 216, considering that the NPA rebellion was not the same rebellion that led to the initial martial law declaration and suspension of the privilege of the writ under Proclamation No. 216. Thus, Joint Resolution No. 4 lacks sufficient factual basis, thereby making it unconstitutional.
Preliminarily, I shall address petitioners' invocation of Ex Parte Milligan4 as basis to define martial law as "the assumption of jurisdiction by the military over the civilian population xx x."5 Petitioners view martial law "in the context of a theater of war, wherein the government civilian functions such as the civil courts and other civil services cannot function xx x."6
I disagree.
Decided by the United States (US) Supreme Court in 1866, Ex Parte Milligan involved Lambden P. Milligan who was charged with acts of disloyalty and faced trial before a military commission in Indiana during the civil war. He was found guilty on all charges and sentenced to death by hanging. He then sought release through habeas corpus from a federal court. While trials of civilians by presidentially created military commissions were invalidated, the US Supreme Court recognized martial law as a necessary substitute for the civil authority in the theater of active military operations, thus:
It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theat[er] of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.7 (Emphasis supplied)
This pronouncement of the US Supreme Court has no application in this jurisdiction because Ex Parte Milligan conflicts with the Philippine Constitution. Paragraph 4, Section 18, Article VII of the Constitution reads:
Sec. 18. xx x
xx xx
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. (Emphasis supplied)
To repeat, a state of martial law does not suspend the operation of the Constitution. Contrary to the theory of petitioners, the clause "nor supplant the functioning of the civil courts or legislative assemblies" already precludes the "existence of a vacuum in civilian authority in a theater of war."8 Not even the phrase "conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function" can serve as basis for the military to immediately acquire jurisdiction. Under Section 2, Article VIII of the Constitution, "Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts." Applied to military courts, this means that Congress needs to enact a law vesting military courts with jurisdiction. In other words, a state of martial law does not ipso facto confer jurisdiction on military courts over civilians. Rather, the conferment comes from Congress through a separate law.
During the oral arguments, I made the same clarification on the inapplicability of Ex Parte Milligan, thus:
JUSTICE CARPIO:
Okay. xx x Ex Parte Milligan xx x. The US Constitution (does) not have that provision that in case of martial law the Bill of Rights (is) not suspended x x x.
ATTY. HILBAY:
Correct, Your Honor.
JUSTICE CARPIO:
It was the old concept of necessity.
ATTY. HILBAY:
Correct, Your Honor.
JUSTICE CARPIO:
Okay. So, I think, you agree with me that when (this) Court adopted the Ex Parte Milligan definition of martial law, it did not jibe with the present Constitution, correct?
ATTY. HILBAY:
Well, in fact, Your Honor, Milligan is seen in the United States as a civil liberties case decided by the United States Supreme Court against the military.
JUSTICE CARPIO:
x x x the definition x x x that martial law is the assumption of jurisdiction by the military cannot apply here because our Constitution says, martial law shall not supplant legislative assemblies. So, there is no instance where the military can exercise supervision and control over legislative assemblies, correct?
ATTY. HILBAY:
Your Honor, I think the cover of phrase is where civil courts are able to function.
JUSTICE CARPIO:
No, xx x. "Shall not nor supplant the functioning of civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts over civilians where civil courts are able to function." xx x that provision "nor authorize the conferment of jurisdiction on military courts," you're talking of conferment of jurisdiction, which is conferred by what?
ATTY. HILBAY:
By martial law, Your Honor.
JUSTICE CARPIO:
No. Jurisdiction is conferred by Congress, correct?
xx xx
JUSTICE CARPIO:
Because it says here, it does not confer jurisdiction on military courts. The act of declaration of martial law - can (that) confer jurisdiction on (the) military? x x x there has to be a separate law. So that this definition, 1866 definition, is not appropriate today, correct?
xx xx
JUSTICE CARPIO:
It's only appropriate in that it says you can declare martial law in a theater of war ...
ATTY. HILBAY:
Okay, Your Honor, I agree.9
To be clear, all of the provisions of the Constitution, including the Bill of Rights, remain operative during the proclamation of martial law and the suspension of the privilege of the writ. The Constitution clearly prohibits the automatic assumption of jurisdiction by military courts during a state of martial law or when the privilege of the writ is likewise suspended.
With the liberation of Marawi City and the end of
the Maute rebellion, the initial declaration of
martial law and suspension of the privilege of the
writ under Proclamation No. 216 can no longer
be extended.
Paragraph 1, Section 18, Article VII of the Constitution reads:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. x x x. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion· or rebellion shall persist and public safety requires it. [Emphasis supplied]
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."10 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.
Proclamation No. 216, signed by President Rodrigo Roa Duterte (President Duterte) and attested by Executive Secretary Salvador C. Medialdea on 23 May 2017, clearly identifies the "Maute group" as the rebel group who committed the crime of rebellion by "rising (publicly) and taking arms against the [g]ovemment for the purpose of removing from the allegiance to said [g]ovemment." The pertinent paragraphs of Proclamation No. 216 read:
xx xx
WHEREAS, Section 18 Article VII of the Constitution provides that "x x x In case of invasion or rebellion, when the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law x x x";
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that "the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or ay part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives"
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;
WHEREAS, today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.11 (Emphasis and underscoring supplied)
Moreover, on 25 May 2017, when President Duterte submitted his Report to Congress, he identified the Maute group as the perpetrator of the crime of rebellion in Marawi City, to wit:
Based on verified intelligence rep01is, the Maute Group, as of the end of 2016, consisted of around two hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by DAESH, as evidenced by, among others, its publication of a video footage declaring its allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and logistical support to the Maute Group.
The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives.
xx xx
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.12 (Emphasis supplied)
On 17 October 201 7, President Duterte declared the liberation of Marawi City, a day after the death of Isnilon Hapilon and Omar Maute, the leaders of the Maute rebellion. In his speech to the soldiers on 17 October 2017, the President said, "Ladies and gentlemen, I hereby declare Marawi City liberated from the terrorist influence that marks the beginning of rehabilitation [of the city]."13
This statement was bolstered by National Defense Secretary Delfin Lorenzana in his speech at the ASEAN Defense Ministers meeting held last October 2017. He said, "After 154 days of the siege of Marawi by the Daesh-inspired Maute-ISIS group, or after a week since the Commander-in-Chief declared liberation of Marawi, we now announce the termination of all combat operations in Marawi."14
Joint Task Force Ranao Deputy Commander Colonel Romeo Brawner clarified what "termination of combat operations" means. He said, "x x x [T]his means that we are terminating the assault, the offensive attack on the position of the Maute-ISIS."15
These three separate statements made by President Duterte, the National Defense Secretary and the Joint Task Force Ranao Deputy Commander, respectively, clearly confirm that actual rebellion no longer persisted in Marawi City beginning 17 October 2017.
Moreover, the government did not present any evidence of an ongoing rebellion by the Maute group in other places of Mindanao outside of Marawi City to justify the extension of Proclamation No 216. In various media appearances, representatives from the government and the army confessed that Marawi City was already contained and under control.
In one media interview, Major General Restituto Padilla, Jr., spokesperson for the military, said that the remaining twenty (20) to thirty (30) terrorists left in Marawi City had "no way. to get out anymore" and "there is no way for anyone to get in xx x [s]o choking them to death at this point will be very key for our troops to do since the area is very much contained and very controlled."16
National Defense Secretary Lorenzana Delfin told reporters that "there were no more militants, known locally as coming from the Maute Group, providing resistance following an intense final battle x x x." He continued, "All terrorists, fighting troops. All hostages have been recovered. x x x In crushing thus far the most serious attempt to export violent extremism and radicalism in the Philippines and in the region, we have contributed to preventing its spread in Asia and gave our share to maintaining global peace, stability and security."17
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.
The capability of the remnants of the defeated
rebel groups to sow terror, and cause death and
damage to property, does not constitute an actual
rebellion.
Congress also justifies the extension of the declaration of martial law and suspension of the privilege of the writ by citing the capability of the remnants of the defeated rebel groups to sow terror, and cause death and damage to property.
I disagree.
Paragraph 1, Section 18, Article VII of the Constitution vests in the President, as the Commander-in-Chief, the power to declare martial law or suspend the privilege of the writ, provided an actual rebellion or invasion exists and public safety requires the declaration or suspension. While Congress may extend the proclamation or suspension, the Constitution expressly requires, "the invasion or rebellion shall persist and public safety requires it." In other words, the twin requirements of actual rebellion or invasion, and public safety imposed on the initial proclamation and suspension are continuing requirements for any subsequent extension of the proclamation or suspension. As aptly put by the petitioners, "what persists must be actual."18
By issuing Joint Resolution No. 4, the House of Representatives and the Senate adopted the justification of the President in extending Proclamation No. 216. The Letter dated 8 December 2017 of President Duterte to Congress reads in pertinent part:
First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. x x x
More specifically, the remnants of the DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as their consolidation/reorganization in Central Mindanao.xx x
Second, the Turafie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. x x x
Third, the Bangsamoro Islamic Freedom Fighters (BIFF) contuinue to defy the government by perpetrating at least fifteen ( 15) violent incidents during the Martial Law period in Maguinadao and North Cotabato. x x x
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. x x x
xx xx
x x x Public safety indubitably requires such further extension, not only for the sake of security and public order, but more importantly to enable the government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion of a stable socio-economic growth and development.19 (Emphasis supplied)
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. This is a gross violation of the clear letter and intent of the Constitution, as gleaned from the following deliberations of the Constitutional Commission:
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?
Mr. Regalado. If we consider the definition of rebellion under Articles 134 and 135 of the Revised penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed in Article 135. xx x.20 (Emphasis supplied)
The NPA rebellion, with the concurrence of
public safety, requires a separate martial law
declaration for a period not exceeding 60 days; it
cannot justify the extension of Proclamation No.
216, the factual basis of which was solely the
Maute rebellion.
To repeat, under Section 18, Article VII of the Constitution, the extension of the proclamation of martial law or suspension of the privilege of the writ requires the concurrence of the following two elements: one, the invasion or rebellion persists; and two, public safety requires the extension. Strict compliance with Section 18, Article VII of the Constitution is imperative because the provision distinguishes the initial proclamation or suspension from the subsequent extension. The former can only last for a period not exceeding 60 days, while the duration of the latter is subject to the discretion of Congress. By belatedly invoking the NPA rebellion as factual basis for the extension of Proclamation No. 216, the government effectively circumvented the temporal limitation set by the Constitution that the initial proclamation of martial law or suspension of the privilege of the writ can only last for 60 days. Worse, the extension set a maximum period of one year.
When the Court reviewed in Lagman v. Medialdea21 the sufficiency of the factual basis of Proclamation No. 216, the Court ruled in the affirmative on the sole basis of the Maute rebellion, to wit:
After the assessment by the President of the aforementioned facts, he arrived at the following conclusions, as mentioned in Proclamation No. 216 and the Report:
1) The Maute Group is "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."
2) "[L]awless armed groups have taken up arms and committed public uprising against the duly constituted government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a whole."
3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives."
4) "These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao."
5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government."
6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments."
7) "Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from the city is likewise hindered."
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of the entire Island of Mindanao."
9) "Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity."
Thus, the President deduced from the facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus. [Emphasis supplied]
Similarly, when the Court examined the impact of the rebellion on public safety, the Court never attributed the acts of violence to the NPA as to warrant the proclamation of martial law or suspension of the privilege of the writ in the whole of Mindanao, thus:
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid, there must be a concurrence of actual rebellion or invasion and the public safety requirement. In his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute Group were directed not only against government forces or establishments but likewise against civilians and their properties. In addition and in relation to the armed hostilities, bomb threats were issued; road blockades and checkpoints were set up; schools and churches were burned; civilian hostages were taken and killed; non-Muslims or Christians were targeted; young male Muslims were forced to join their group; medical services and delivery of basic services were hampered; reinforcements of government troops and civilian movement were hindered; and the security of the entire Mindanao Island was compromised.
These particular scenarios convinced the President that the atrocities had already escalated to a level that risked public safety and thus impelled him to declare martial law and suspend the privilege of the writ of habeas corpus. In the last paragraph of his Report, the President declared:
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.
Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the privilege of the writ of habeas corpus have been properly and fully complied with. Proclamation No. 216 has sufficient factual basis there being probable cause to believe that rebellion exists and that public safety requires the martial law declaration and the suspension of the privilege of the writ of habeas corpus. (Emphasis supplied)
Even the ponencia concedes that Proclamation No. 216 did not contemplate the NPA rebellion as factual basis. For one, the NPA merely "took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist attacks x x x, as well as guerilla warfare," all of which suggests that the perceived "intensified" insurgence happened after the issuance of Proclamation No. 216. For another, when Proclamation No. 216 was issued, the government and the NPA were undergoing peace negotiations. Hence, to belatedly expand the factual basis of Proclamation No. 216 as to include the NPA rebellion will violate Section 18, Article VII of the Constitution.
The ponencia holds that the inclusion of the NPA rebellion as basis for the martial law extension is justified because the NPA shares with the DAESH/ISIS-inspired rebels the same purpose of overthrowing the government and inflicts the same degree of violence as in the Marawi siege.
I disagree.
Contrary to the holding of the ponencia, mere identity of purpose and capacity for violence between the NPA and the DAESH/ISIS-inspired rebels cannot justify the inclusion of the NPA rebellion as factual basis for the extension of Proclamation No. 216. The Constitution limits the initial martial law declaration or suspension of the privilege of the writ to a period of 60 days. Only when this period is not enough to quell the rebellion can an extension be sought. By citing the NPA rebellion as factual basis for the extension, the government bypassed the mandatory 60-day period prescribed by the Constitution for the initial declaration of martial law and suspension of the privilege of the writ. The government can cite the NPA rebellion as a ground for the imposition of martial law and suspension of the privilege of the writ, but the initial 60-day period prescribed by the Constitution must first be observed before the government can ask for an extension of such emergency measures.
Neither can the concurrence of Congress with the President cure the unconstitutionality of the extension. The concurrent power of the legislative and the executive to extend the proclamation or suspension is circumscribed by the clause "if the invasion or rebellion shall persist and public safety requires it." To give effect to this clause, paragraph 3, Section 18, Article VII of the Constitution vests the Court with the power to review the sufficiency of the factual basis of the extension. In other words, mere concurrence of the two political branches is not enough. The Court is the final arbiter of the constitutionality of the extension.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos. 235935, 236061, 236145, and 236155 and DECLARE Joint Resolution No. 4 dated 13 December 2017 of the Senate and the House of Representatives UNCONSTITUTIONAL for failure to comply with Section 18, Article VII of the 1987 Constitution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Annex "D" of Monsod Petition; Annex "5" of OSG Consolidated Comment.
2 On 23 May 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, series of 2017, declaring a state of martial law and suspending the privilege of the writ in the whole of Mindanao. During a Special Joint Session on 22 July 2017, Congress extended Proclamation No. 216 until 31 December 2017.
3 Annex "D" of Monsod Petition; Annex "5" of OSG Consolidated Comment.
4 711 U.S. 4 Wall. 2 (1866).
5 Memorandum of petitioner Rosales, pp. 15-16. See Memorandum of petitioners Monsod, et al., p. 46.
6 Memorandum of petitioners Monsod, et al., pp. 46, 50-51.
7 Ex Parle Milligan, supra note 4, at 127.
8 Memorandum of petitioner Rosales, p. 16.
9 TSN, 16 January 2018, pp. 107-109.
10 The portion of the records read:
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 cutoff of 60-day period. Do they have to meet all over again and agree to extend the same? (Records of the Constitutional Commission, Vol. 2, 31 July 1986)
11 Annex "A" of Rosales Petition
12 Lagman v. Medialdea, G.R. No. 231658, July 4, 2017.
13 Eimor P. Santos, Duterte declares liberation of Marawi
<http://cnnphilippines.com/news/2017/1Oil7 /Marawi-liberation-Duterte.html> [last accessed 2 February 2018]. See also Claire Jiao and Lara Tan, Fighting in Marawi City is over <http://cnnphilippines.com/news/20 I 7 /10/23/Marawi-crisis.htm l> [last accessed 2 February 2018]; Trisha Macas and Raffy Tima, Duterte declares Marawi City is free <http ://www. gm an etwork. com/news/news/ nati on/6 29 820/ d uterte-dec lares-mara wi-c i ty- is-free/ story/> [last accessed 2 February 2018]; Allan Nawal, Jeoffrey Maitem, Richel Umel and Divina Suson, Marawi 'liberated' from terrorists but battle drags on <http://newsinfo.inquirer.net/938592/presidentdute1te- marawi-city-liberated-terrorists> [last accessed 2 February 2018]; AFP, AP and Francis Wakefield, Battle of Marawi ends <https://news.mb.com.ph/2017 II 0/24/battle-of-marawi-ends/> [last accessed 2 February 2018]; Catherine S. Valente, Marawi free <http://www.manilatimes.net/marawifree/ 357155/> [last accessed 2 February 2018]; Rosette Adel, Duterte declares Marawi freed from terrorists <http://www.philstar.com/headlines/2017 /10/17/1749752/duterte-declares-marawi-freedtenwists> [last accessed 2 February 2018]; PTV News, President Duterte declares liberation of Marawi City <https://ptvnews.ph/president-duterte-declares-liberation-marawi-city/> [last accessed 2 February 2018].
14 Claire Jiao and Lara Tan, Fighting in Marawi City is over <http://cnnphilippines.com/news/2017110/23/Marawi-crisis.html> [last accessed 2 February 2018]. 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 2018].
15 Claire Jiao and Lara Tan, Fighting in Marawi City is over <http://cnnphilippines.com/news/2017/10/23/Marawi-crisis.html> [last accessed 2 February 2018].
16 Allan Nawal, Jeoffrey Maitem, Richel Umcl and Divina Suson, Marawi liberated' from terrorists but battle drags on <http://newsinfo. ingu irer. net/93 8592/president-duterte-marawi-city-liberated-terrorists> [last accessed 2 February 2018].
17 AFP, AP and Francis Wakefield, Battle of Marawi ends <https://news.mb.com.ph/2017 /I 0/24/battle-of-marawi- ends/> [last accessed 2 February 2018].
18 Memorandum of Lagman Petition. p. 14.
19 Annex C of Lagman Petition.
20 II RECORD, CONSTITUTIONAL COMMISSION 412 (1987).
21 G.R.No.231658, July 4, 2017.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
The best propaganda is that which,
as it were, works invisibly,
penetrates the whole of life
without the public having any knowledge
of its propagandistic initiative.1
- Joseph Goebbels
Nazi Politician and Propaganda Minister
We live in a fantasy world,
a world of illusion,
the great task in life is to find reality.2
- Iris Murdoch
Author and Philosopher
LEONEN, J.:
The extension of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus as the principal means to address the long war against terrorism given the facts in this case is a short-sighted populist fallacy that is not supported by the Constitution. It is a solution that denies the complexity of a generational problem. It assures an environment conducive to the emergence of an authoritarian.
At issue in this case is whether a longer second extension of martial law should be constitutionally allowed considering declarations of victory in Marawi as well as progress in the interdiction of terrorists.
There are no facts that support the length of the extension. There are no facts that support why martial law and the suspension of the privilege of the writ of habeas corpus should be applied throughout the entirety of Mindanao. The declaration of martial law does not specify the additional powers that will be granted to the Commander-in-Chief and the military.
The President inserts a new reason for the longer second extension of martial law which was not present in Proclamation No. 216, Series of 2017: the Maoist Marxist Leninist rebellion of the Communist Party of the Philippines-New Peoples' Army-National Democratic Front. Yet, even assuming that this was constitutionally permissible, the facts as alleged by the Armed Forces of the Philippines (AFP) show that this fifty-year protracted insurgency is declining, the result of their successes even without martial law.
The government failed to show why the normal legal framework and the professional work of the military, police and local government units are insufficient to meet the threats that they describe. The facts they present are not sufficient to support the use of the extraordinary powers of the Commander in Chief to declare martial law and the suspend the privilege of the writ of habeas corpus.
The majority surrenders the Constitutional mandate of both Congress and this Court to do a reasonable, conscientious, and sober check on the use of the most awesome powers of the President as Commander-in-Chief. More than any constitutional organ, this Court should be the last to succumb to fear stoked by a pastiche of incidents without context. More than ever, this Court is called upon to practice its studied independence. It should show that it is an institution that can look beyond political pressure. It should be the constitutional body that does a sober and conscientious review amid the hysteria of the moment. This Court should be the last to succumb to false and simplified dichotomies.
The presentations of the government are simply allegations of reality whose basis in fact remain illegible and invisible, hidden under the cloak of the military's concept of confidentiality. Even if true, the numbers they present do not match the constitutional exigencies required.
The deliberation in Congress was hobbled by the belated request for extension from the President and the imposition of a rule by its "supermajority" clearly designed to produce no other result than accession to the wishes of the President without serious deliberation. Each representative of the House of Representatives and each Senator were to reveal the preferences of their constituents in just three (3) minutes. Three (3) minutes were all that each of them had to raise questions, clarify, and express dissent, if any. The Congress' leadership's resolute persistence to keep to such time limits sacrificed democratic parliamentary deliberation. This was grave abuse of discretion.
The Constitution requires that on a matter as important as martial law, this Court should not defer even as Congress renders itself unable to meet the expectations of democratic deliberation. The revisions introduced in 1987 guard against grave abuse of discretion as well as the failure of legislative inquiry into the sufficiency of the factual basis for invoking the Commander-in-Chief powers to declare a state of martial law and the suspension of the writ of habeas corpus.
The Constitution does not allow us to blind ourselves with any version of the political question doctrine. The majority opinion, in its proposal for a type of deferential factual review, is nothing but a reincarnation of the political question doctrine similar to that in Aquino v. Enrile and Morales v. Enrile during the darker days of martial law declared by Ferdinand E. Marcos.
We do not know the extraordinary powers that will be wielded under the rubric of martial law. The majority glosses over the executive and the legislature's silence as to the extra powers that will be exercised under a state of martial law. We are asked to defer to the invisible.
This is not what we have learned from history. It is not what the Constitution allows.
Respectfully and in conscience, I cannot agree.
The proposal of the President to extend the state of martial law and the suspension of the writ of habeas corpus as well as Congress' Resolution No. 4 of Both Houses issued on December 13, 2017 should be declared unconstitutional. They are anathema to our republican and democratic state with the people as sovereign, as mandated by the 1987 Constitution.
Part I of this dissent narrates the facts and the proceedings that precede the second and longer extension of martial law and the suspension of the privilege of the writ in Mindanao. Part II summarizes the reasons for this conclusion in Part I of this dissent. The succeeding parts elaborate on the reasons. This dissent should be read in relation to my separate opinion also in G.R. No. 231658, Lagman, et al. v. Medialdea3 or the 2017 Martial Law cases, questioning the first extension of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus.
I
The events leading to these consolidated cases are as follows:
On May 23, 2017, a state of martial law was declared in Mindanao for a period not exceeding sixty (60) days, through President Rodrigo Roa Duterte's Proclamation No. 216, which read:
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;
WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law xx x';
WHEREAS, Article 134 of the Revised Penal Code, as amended by RA. No. 6968, provides that 'the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives';
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.
Thereafter, the President submitted his Report on the declaration of martial law. Both the Senate and the House of Representatives issued resolutions finding no reason to revoke the declaration.4
Petitions were then filed before this Court assailing the declaration of martial law and the suspension of the privilege of the writ as unconstitutional as there was no sufficient factual basis for these acts. Finding that Proclamation No. 216 was supported by sufficient factual basis, this Court dismissed these petitions in a Decision dated July 4, 2017.
In a Letter5 dated July 18, 2017, the President explained to Congress that the rebellion would not be quelled completely by the expiry of the sixty (60) day period for the effectivity of martial law provided under the Constitution. Thus, he requested that the proclamation of martial law be extended until December 31, 2017.
Congress acted on the President's Letter in a Special Joint Session and adopted Resolution of Both Houses No. 2,6 extending the effectivity of Proclamation No. 216 until December 31, 2017. This was the first extension.
On October 17, 2017, Marawi City was freed from the terrorist groups' influence.7
From October 17, 2017 until December 2017, there was no indication that there was any need to further extend martial law.
Despite the liberation of Marawi City, Secretary Delfin N. Lorenzana wrote a Letter8 dated December 4, 2017, forwarding an undated letter written by AFP General Rey Leonardo B. Guerrero, recommending that President Duterte extend martial law and suspend the privilege of the writ of habeas corpus in Mindanao for twelve (12) months, until December 31, 2018. Secretary Lorenzana said:
Due to compelling reasons and based on current security assessment made by the Chief of Staff, Armed Forces of the Philippines, the undersigned recommends the extension of Martial Law for another 12 months or 1 year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), and the communist terrorists (CTs) and their coddlers, supporters and financiers, and to ensure speedy rehabilitation, recovery and reconstruction efforts in Marawi, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao.
The previous Martial Law declaration which is still in effect until end of December 2017 has resulted in remarkable achievements, such as the death of Hapilon and the Maute brothers. However, the remnants of their groups were monitored to be continuously rebuilding their organization through the recruitment and training of new members/fighters. Likewise, there are also other terrorist groups, such as the TURAIFIE, monitored to be planning to conduct terrorist activities in some parts of Mindanao, and there are data that indicate that armed struggle in Mindanao is still relatively strong.
This proposed second extension of implementation of Martial Law in Mindanao coupled with continued suspension of the privilege of the writ of habeas corpus will significantly help not only the AFP, but also other stakeholders in quelling and putting an end to the on-going DAESH-inspired DIWM groups and communist terrorists-staged rebellion, and in restoring public order, safety, and stability in Mindanao.
In his undated Letter9 to the President, General Guerrero cited the following justifications for the extension of martial law:
The DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;
Other DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, W estem, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;
Other DAESH-inspired and like-minded threat groups such as BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga and Cotabato;
The CTs have been pursuing and intensifying their political mobilization (army, party and mass base building, rallies, pickets and demonstrations, financial and logistical build up), terrorism against innocent civilians and private entities, and guerrilla warfare against the security sector, and public government infrastructures;
The need to intensify the campaign against the CTs is necessary in order to defeat their strategy, stop their extortion, defeat their armed component, and to stop their recruitment activities;
The threats being posed by the CTs, the ASG, and the presence of remnants, protectors, supporters and sympathizers of the DAESH/DIWM pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao;
The 2nd extension of the implementation of Martial Law coupled with the continued suspension of the privilege of the writ of habeas corpus in Mindanao will significantly help not only the AFP, but also other stakeholders in quelling and putting an end to the on-going DAESHinspired DIWM groups and CT-staged rebellion, and in restoring public order, safety, and stability in Mindanao; and
In seeking for another extension, the AFP is ready, willing and able to perform anew its mandated task in the same manner that it had dutifully done so for the whole duration of Martial Law to date, without any reported human rights violation and/or incident of abuse of authority.
Thus, in a Letter10 dated December 8, 2017, the President asked Congress for a second extension of the proclamation of martial law and the privilege of the writ of habeas corpus in Mindanao, for a period of one (1) year, to last until December 31, 2018. The only attachments to the President's Letter were the letters of Secretary Lorenzana and General Guerrero.
Acting on the President's Letter, the House of Representatives and Senate promulgated Rules of the Joint Session of Congress on the Call of the President to Further Extend the Period of Proclamation No. 216, Series of 2017,11 to govern the joint session during which Congress would perform its constitutional duty to determine whether rebellion persists, and whether public safety requires the extension of martial law.12 During this joint session, resource persons from the Executive Department would report "on the factual basis of the letter of the President calling upon Congress to further extend the period" of martial law in Mindanao.13 These rules limited a member's period to interpellate resource persons to only three (3) minutes.14
During the joint session on December 13, 2017, the only materials provided to the members of Congress were the three (3) letters written by the President, General Guerrero, and Secretary Lorenzana.15 Nonetheless, Congress passed Resolution of Both Houses No. 4, 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. It read:
WHEREAS, the Senate and the House of Representatives, in a Special Joint Session held on July 22, 2017, extended the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao until December 31, 2017;
WHEREAS, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested 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) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution";
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;
WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the Congress of the Philippines to extend, at the initiative of the President, such proclamation or suspension 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, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the 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 a period of one (1) year from January 1, 2018 to December 31, 2018.
Thus, four (4) petitions16 were filed before this Court, assailing Congress' act of extending martial law and the suspension of the writ of habeas corpus, as well as the President's act of recommending it. Respondents, through the Office of the Solicitor General, filed their comments to the petitions, and this Court set the case for oral arguments.
During the Oral Arguments, on January 17, 2018, Major General Fernando Trinidad, Deputy Chief of Staff for Intelligence, Chief of the AFP made a Power Point presentation on the Extension of Martial Law in Mindanao, to update this Court as to how martial law has been implemented, and to explain the necessity of extending martial law.17 Through various manifestations filed before us, the respondents represented by the Office of the Solicitor General refused to make public any portion of the Operational Directives from the Chief of Staff of the Armed Forces on the Conduct of Martial Law or their Program to Counter Violent Extremism. The Court thus decided that the contents of these documents will not be taken into consideration.
The parties filed their respective memoranda on January 24, 2018.
II
With the filing of any appropriate action under Article VII, Section 18,18 this Court is required to conduct greater judicial and judicious scrutiny of both the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus by the President and the decision of Congress to allow any extension of these Commander-in-Chief powers.
The heightened scrutiny can be discerned from (1) the text and context of the provision; (2) the textual evolution of the provision from past constitutions and their various interpretations in jurisprudence; and (3) a reasonable informed contemporary interpretation based upon an analysis of the text, context, and textual history as well as history in general.
Martial law is a state which suggests a derogation of the fundamental republican and democratic concept of a state where sovereignty resides in the people. It is a derogation of the elaborate balance of civil governance and limited government laid out in the Constitution. Martial law is a label or rubric for a set of extraordinary powers to be exercised by the President in a situation of extreme exigency. Regardless of the incumbent, the possible scope of the powers that can be exercised intrinsically calls for an examination of how it affects the fundamental individual and collective rights embedded in our constitutional order.
Martial law generally allows more powers to the AFP. The clear intent of the Constitution is for the sovereign through both its elected representatives as well as the Supreme Court to do an exacting review of a declaration of martial law.
The heightened scrutiny in Article VII, Section 18 already includes the power to review whether the President in his proclamation or request for extension, or the Congress in its decision to extend, has gravely abused its discretion. The Supreme Court does not lose its powers under Article VIII, Section 119 simply with an invocation of Article VII, Section 18. The result would be the absurd situation of hobbling judicial review when the Constitution requires the Court to exercise its full powers.
Besides, both powers were properly invoked in the consolidated petitions.
There can be no rational review if the powers that the President wishes to exercise are not clearly defined. There can be no rational review if all that we are presented with is a declaration of the state of martial law-a description, label, or rubric-not the actual powers that the Commander-in-Chief, through the military, is willing to exercise in derogation of the regular powers already granted by the Constitution and statutes. A declaration of a state of martial law is superfluous when ambiguous or when it simply reiterates powers which can be exercised by the Chief Executive.
This is the situation we have in this case. We have an ambiguous declaration of martial law with no unique powers over an area that is too broad, where the fear of skirmishes in which imminence has not also been proven to exist. There are no actual debilitating confrontations deserving of martial law powers. There are no confrontations that could not be solved by the calling out powers of the President or the surgical application of the suspension of the privilege of the writ of habeas corpus.
There is no rebellion that endangers public safety as required by the Constitution as basis for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.
Article VII, Section 18, when properly invoked, raises issues with respect to (a) the reasonability of the extension of the declaration of the state of martial law or the suspension of the privilege of the writ of habeas corpus, and (b) the sufficiency of the factual basis for the declaration of the state of martial law and the suspension of the privilege of the writ of habeas corpus. These two relate to each other. Both must pass both congressional and judicial inquiry.
On one hand, the reasonability of the extension of the state of martial law and the suspension of the writ of habeas corpus will depend on the following inquiries:
(a) whether the powers originally granted were properly exercised and it was not the inability to effectively and efficiently wield them that caused the extension;
(b) whether the past application of defined powers, under the declaration of a state of martial law and the suspension of the writ of habeas corpus, was conducted in a manner which did not unduly interfere with fundamental rights. In other words, the Court needs to be convinced that the powers requested under martial law were and will be exercised in a manner least restrictive of fundamental rights;
(c) whether the proposed extension has clear, reasonable, and attainable targets, and therefore, whether the period requested is supported by these aims;
(d) whether there are credible and workable rules of engagement for the exercise of the powers properly disseminated through the ranks of the military that will implement martial law; and
(e) whether there is basis for the scope of the area requested for the extension of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus.
On the other hand, the sufficiency of the factual basis for the declaration or the suspension consists of two (2) elements. Both elements must prove rebellion and the necessity of the extraordinary powers for public safety purposes.
The first element of this part of the inquiry is the concept of "factual basis." It must not only depend on factual assertions made by the military. The basis for the factual assertions must be presented in a reasonable manner. That is, that this Court must distinguish and evaluate the relationship between factum probandum and factum probans-between the ultimate facts alleged and the evidentiary facts used, and the reasonability of the inferences to arrive at the allegations.
The second element of this inquiry is the concept of the "sufficiency" of the factual basis. This means that it should relate to the powers necessary for the evil it seeks to prevent.
The "evil" sought to be addressed by clearly defined powers under a state of martial law is the presence of actual-not imminent-rebellion, and "public safety" is a necessity for the exercise of such powers. "Public safety" cannot be the damage or injury inherent in acts of rebellion. If that is so, then there would have been no necessity to make it a textual requirement in Article VII, Section 18. Rather, it should mean more. In examining the history of martial law in general, and the clear expressed desire to avoid the kind of martial law imposed through Proclamation 1081 in 1972, we see that martial law is imposed in a situation where civil and/or judicial authority could not exercise its usual powers. The history of martial law in this country also implies that such exigency should require a measured and definitive timetable, target, and strategy.
In both general inquiries, the extraordinary powers-as well as their scope and limitations-should be clear. Apart from making them clear to those that will review, they should be made public and transparent. They cannot be confidential.
Both Congressional and judicial reviews include these two (2) basic inquiries: whether there are clear, transparent, and necessary powers articulated under martial law, and whether the declaration of such kind of martial law is supported by sufficient factual basis.
Unlike the Court, Congress may provide for oversight in the exercise of powers by the President as Commander-in-Chief. Such oversight may be to ensure that the fundamental rights of citizens are guaranteed even under a state of martial law or with the suspension of the privilege of the writ of habeas corpus. The possible abuse of discretion in the lack of oversight exercised by Congress is not in issue in this case but, in my view, should likewise be justiciable due to the extraordinary nature of these Commander-in- Chief prerogatives.
Both the President and Congress also gravely abused their discretion when they failed to make public the powers that are to be exercised by the military, the remedies, and the strategy. Public participation in quelling the rebellion, assuming that it exists, should always be encouraged. There should no longer be any secret decrees.
Congress gravely abused its discretion in that it extended the proclamation of a state of martial law and the suspension of the privilege of the writ of habeas corpus (a) without a proper presentation of all the facts in their proper context; (b) without examining the basis of the conclusions inherent in the allegations of facts by the military; (c) without knowing the powers that will be exercised that are unique to the declaration of a state of martial law; and (d) without ascertaining why there needed to be a longer extension in the same area even with the declaration of continued victories by the military.
All these were unexamined because of the existence of the fifth ground that rendered the extension unconstitutional. There was (e) a lack of deliberation. The deliberation was hobbled by the late request submitted by the President to extend the declaration and the rules of Congress which unconstitutionally restricted discussion. Each representative of each district and each nationally elected Senator were given only three minutes to interpellate, clarify, and express their dissent, if any.
The facts presented were generalized and meant to justify extraordinary powers on the basis of general fears of what might happen. They listed a litany of violent confrontations, past and present, with no coherent timeline.
Terrorism and rebellion are vastly different. Even the aims of each group categorized as terrorists and enumerated in the presentations of the government are different. Some of the groups are separated in terms of ideology and methods. Many of these groups are continuously driven by internal and violent divisions. It is illogical and deceiving to present them as a coordinated enemy, and therefore, accumulate their collective strengths to stoke fear of potential catastrophe. This is fear mongering at its best and this Court should provide the sobriety called for by the Constitution.
More importantly, the government has not highlighted its victories. It has not presented how its normal law enforcement abilities have been able to disrupt and interdict past attempts to sow chaos and discord. It has not shown why its ordinary capabilities remain short to address all the law-and-order problems it enumerates.
III
Judicial review, properly invoked, is not a privilege of this Court. It is its sworn duty.
The textual evolution of Article VII, Section 18 of the Constitution and the context in which it was formulated reveals a mandate for this Court not to give full deference to the Executive when the Commander-in-Chief powers are exercised. The present text entails "a heightened and stricter mode of review."20
Under the Malolos Constitution, the President of the Republic was granted very broad Commander-in-Chief powers. The President had "the army and the navy" at his or her disposal.21 The Malolos Constitution did not provide for any particular safeguard when the president exercises the commander-in-chief powers other than the provision imposing liability of the President for high treason.22 Judicial power, which was vested in the Supreme Court and in other courts created by law,23 was simply defined as the "power to apply the laws, in the name of the Nation, in all civil and criminal trials."24
The Philippine Bill of 1902 further developed the Commander-in-Chief Powers of the President. Section 5, Paragraph 7 allowed the President or the Governor to suspend the privilege of the writ of habeas corpus under certain conditions. The privilege of the writ of habeas corpus could only be suspended with the approval of the Philippine Commission in cases of "rebellion, insurrection, or invasion" and when the "public safety may require it."25
The question of whether the judiciary may review the exercise of the Commander-in-Chief powers under the Philippine Bill of 1902 was raised in Barcelon v. Baker. In resolving the case, this Court deferred to the judgment of the Governor General and the Philippine Commission and ruled that the factual basis relied upon for the suspension of the privilege of the writ of habeas corpus was purely political, and thus, beyond the scope of judicial review. In refusing to take judicial cognizance of the issue, this Court relied on the principle of separation of powers and on the presumption that each branch of the government properly dispensed its functions.26
The Philippine Autonomy Act, or the Jones Law of 1916, expressly recognized the executive as the "commander in chief of all locally created armed forces and militia."27 Section 21 of the Philippine Autonomy Act stated:
He shall be responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Islands, or summon the posse comitatus, or call out the militia or other locally created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the Islands, or any part thereof, under martial law: Provided, That whenever the Governor General shall exercise this authority, he shall at once notify the President of the United States thereof together with the attending facts and circumstances, and the President shall have power modify or vacate the action of the Governor-General. He shall annually and at such other times as he may be required make such official report of the transactions of the Government of the Philippine Islands to an executive department of the United States to be designated by the President, and his said annual report shall be transmitted to the Congress of the United States; and he shall perform such additional duties and functions as may in pursuance of law be delegated or assigned to him by the President.28 (Emphasis supplied)
The Philippine Autonomy Act recognized the executive's calling out powers "to prevent or suppress lawless violence, invasion, insurrection, or rebellion."
This is also the first time that "martial law" appeared in the organic act of the Philippines. The Governor General was given the power to "suspend the privileges of the writ of habeas corpus, or place the Islands, or any part thereof under martial law" but only "in case of rebellion or invasion, or imminent danger thereof." In the exercise of these powers, legislative concurrence was not necessary. The Governor General, however, was required to notify the President of the United States of such declaration. Only the President may vacate the action of the Governor General.
The 1935 Constitution also gave the President the power to call out the armed forces, and to suspend the writ of habeas corpus or to place the Philippines or any part thereof under martial law:
Section 10
. . . .
(2) The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.29
The privilege of the writ of habeas corpus could only be suspended and martial law could only be declared in case of "invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it."
The privilege of the writ of habeas corpus was suspended under the 193 5 Constitution. This was challenged in Montenegro v. Castaneda.30 Similar to Barcelon, a policy of non-interference was adopted in Montenegro. This Court deferred to the executive's discretion and ruled that "the authority to decide whenever the exigency has arisen requiring the suspension belongs to the President and "his decision is final and conclusive upon the courts and upon all other persons."31
Later, the pronouncements in Barcelon and Montenegro were unanimously reversed in Lansang v. Garcia. This Court recognized the power of the President to suspend the privilege of the writ but qualified that the same was "limited and conditional." Courts may, therefore, inquire whether the power was exercised in accordance with the Constitution:32
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." Far from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.33 (Emphasis supplied)
Despite these pronouncements, this Court upheld the suspension of the privilege of the writ of habeas corpus ruling that the existence of a rebellion and that public safety required such suspension.34
In In the Matter of the Petition for Habeas Corpus of Aquino et al. v. Ponce Enrile,35 this Court, once again, was faced with the propriety of the exercise of the President of his Commander-in-Chief powers. The majority of this Court in Aquino held that the declaration of martial law was purely political in nature and therefore, may not be inquired into by this Court.
The 1973 Constitution reiterated the President's Commander-in-Chief powers under the 1935 Constitution. Article VII, Section 11 provides:
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.
This Court in In the Issuance of the Writ of Habeas Corpus for Parong et al. v. Enrile,36 expressly reverted to the doctrine in Barcelon and Montenegro regarding deference to the President upon the suspension of the privilege of the writ of habeas corpus:
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.
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. Castafieda.37 (Citations omitted)
Shortly after the promulgation of Parong, this Court ruled upon In the Matter of the Petition for Habeas Corpus of Morales, Jr. v. Enrile which reiterated the doctrine in Lansang.
The passage of the 1987 Constitution finally put an end to the pliability of past Courts under martial law as declared by former President Ferdinand E. Marcos. That the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may judicially be inquired into is now firmly established in the present text of the Constitution, particularly Article VII, Section 18:38
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.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
Article VII, Section 18 of the 1987 Constitution, in stark contrast with its predecessors, provides for a more heightened and stricter scrutiny when the President exercises his Commander-in-Chief powers.
Compared with the provisions in the earlier Constitutions, more stringent conditions are needed before the President can declare martial law or suspend the privilege of the writ of habeas corpus.
First, the conditions of "invasion, insurrection, or rebellion, or imminent danger thereof' found in past Constitutions are narrowed down and limited to actual "invasion or rebellion."
Second, there is an added requirement that "public safety requires" the declaration or suspension.
Third, a time element is also introduced. 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.
Apart from these stringent conditions, the 1987 Constitution grants a more active role to the other branches of government as a check on the possible excesses of the executive.
Article VII, Section 18 specifically delineates the roles of Congress and the Judiciary when the President exercises his Commander-in-Chief powers. The President and the Congress, as held in Fortun v. Macapagal-Arroyo,39 must "act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus."40
Congress is given "a much wider latitude in its power to revoke the proclamation or suspension." The President is left powerless to set aside or contest the revocation of Congress.41
This Court, on the other hand, is directed 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." The propriety of the declaration of martial law and the suspension of the privilege of the writ is therefore "justiciable and within the ambit of judicial review."42 This Court is further mandated to promulgate its decision within a period of 30 days from the filing of an "appropriate proceeding" by "any citizen."43
The active roles of the two (2) branches of government were further differentiated in my dissenting opinion in Lagman v. Medialdea:
The framers also intended for the Congress to have a considerably broader review power than the Judiciary and to play an active role following the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus. Unlike the Court which can only act upon an appropriate proceeding filed by any citizen, Congress may, by voting jointly and upon a majority vote, revoke such proclamation or suspension. The decision to revoke is not premised on how factually correct the President's invocation of his Commander-in-Chief powers are, rather, Congress is permitted a wider latitude in how it chooses to respond to the President's proclamation or suspension. While the Court is limited to reviewing the sufficiency of the factual basis behind the President's proclamation or suspension, Congress does not operate under such constraints and can strike down the President's exercise of his Commander-in-Chief powers as it pleases without running afoul of the Constitution.
With its veto power and power to extend the duration of martial law upon the President's initiative and as a representative of its constituents, Congress is also expected to continuously monitor and review the situation on the areas affected by martial law. Unlike the Court which is mandated to promulgate its decision within thirty (30) days from the time a petition questioning the proclamation is filed, Congress is not saddled with a similar duty. While the Court is mandated to look into the sufficiency of the factual basis and whether or not the proclamation was attended with grave abuse of discretion, Congress deals primarily with the wisdom behind the proclamation or suspension. Much deference is thus accorded to Congress and is treated as the President's co-equal when it comes to determining the wisdom behind the imposition or continued imposition of martial law or suspension of the writ.44
The 1987 Constitution also makes it easier to question the propriety of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus in that it allows "any citizen" to file an appropriate proceeding. The provision, in effect, relaxes the rules on locus standi.45
The heightened level of judicial scrutiny will be further discussed in this opinion.
IV
Public respondents failed to address the requirement that public safety requires for the extension of martial law.
The first paragraph of Article VII, Section 18 of the Constitution mentions the phrase "public safety requires it" twice. The first reference in the constitutional text refers to the original proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. The second reference to the requirement of public safety refers to the extension of any proclamation, thus:
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)
The Constitution requires that martial law may be imposed not only if there is rebellion or invasion. It also requires that it is indispensable to public safety. The resulting damage or injuries cannot simply be the usual consequences of rebellion or invasion. It must be of such nature that the powers to be exercised under the rubric of martial law or with the suspension of the writ of habeas corpus are indispensable to address the scope of the conflagration. The mere allegation of the existence of rebellion is not enough.
A review of the history of the concept of martial law in general and as applied to our jurisdiction is necessary in order to understand what the present provision requires.
The beginnings of the concept of martial law in England from 1300 to 1638 are discussed in The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right46 :
The term martial law refers to a summary form of criminal justice, exercised under direct or delegated royal authority by the military or police forces of the Crown, which is independent of the established processes of the common law courts, the ecclesiastical courts, and the courts which administered the civil law in England. Martial law is not a body of substantive law, but rather summary powers employed when the ordinary rule of law is suspended. "It is not law," wrote Sir Matthew Hale, "but something rather indulged than allowed as a law ... and that only in cases of necessity."
. . . .
From the beginnings of summary procedure against rebels in the reign of Edward I until the mid-sixteenth century, martial law was regarded in both its forms as the extraordinary usages of war, to be employed only in time of war or open rebellion in the realm, and never as an adjunct of the regular criminal law. Beginning in the mid-1550s, however, the Crown began to claim the authority to expand the hitherto carefully circumscribed jurisdiction of martial law beyond situations of war or open rebellion and into territory which had been the exclusive domain of the criminal law...
Comparatively, in Duncan v. Kahanamoku,47 a case of American origin, martial law was defined as the "exercise of the military power which resides in the Executive Branch of Government to preserve order, and insure the public safety in domestic territory in time of emergency, when other branches of the government are unable to function or their functioning would itself threaten the public safety."48 Justice Davis in Ex Parte Milligan,49 noted that "martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."50
As traditionally conceived, martial law is an extraordinary situation that arises in exigent circumstances. It is required when the civilian government in an area is unable to maintain peace and order requiring the military to step in to address the conflagration, govern temporarily until the area can again be governed normally and democratically under a civilian government. Martial law was never conceived as a substitute for democratic and representative civilian government.
Prior to the 1987 Constitution, martial law had been declared three (3) times in the Philippines.
In 1896, the provinces of Manila, Laguna, Cavite, Batangas, Pampanga, Bulacan, Tarlac, and Nueva Ecija were declared to be in a state of war and under martial law because of the open revolution of the Katipunan against Spain.51 The proclamation declaring martial law stated:
The acts of rebellion of which armed bodies of the people have been guilty during the last few days at different points of the territory of this province, seriously disturbing public tranquility, make it imperative that the most severe and exemplary measures be taken to suppress at its inception an attempt as criminal as futile.52
The first article declared a state of war against the eight (8) provinces, and the following nine (9) articles described rebels, their acts, and how they would be treated.53 Clearly, from the point of view of the colonial civilian government, there were areas which were not fit for civilian government because of the extent of the insurgency.
The Philippines was again placed under martial law during the Second Republic by virtue of Proclamation No. 29 signed by President Jose P. Laurel on September 21, 1944. It cited the danger of invasion being imminent and the public safety so requiring it as the justification for the imposition of the same.54 The proclamation further declared that:
1. The respective Ministers of State shall, subject to the authority of the President, exercise direct supervision and control over all district, provincial, and other local governmental agencies in the Philippines when performing functions or discharging duties affecting matters within the jurisdiction of his Ministry and may, subject to revocation by the President, issue such orders as may be necessary therefor.
2. The Philippines shall be divided into nine Military Districts, seven to correspond to the seven Administrative Districts created under Ordinance No. 31, dated August 26, 1944; the eight, to compromise the City of Manila; and the ninth, the City of Cavite and the provinces of Bulacan, Rizal, Cavite, and Palawan.
3. The Commissioners for each of said Administrative Districts shall have command, respectively, of the first seven military districts herein created, and shall bear the title of Military Governor; and the Mayors and Provincial Governors of the cities and provinces compromised therein shall be their principal deputies, with the title of deputy city or provincial military governor, as the case may be. The Mayor of the City of Manila shall be Military Governor for the eight Military District; and the Vice-Minister of Home Affairs, in addition to his other duties, shall be the Military Governor for the ninth Military District.
4. All existing laws shall continue in force and effect until amended or repealed by the president, and all the existing civil agencies of an executive character shall continue exercising their agencies of an executive character shall continue exercising their powers and performing their functions and duties, unless they are inconsistent with the terms of this Proclamation or incompatible with the expeditions and effective enforcement of the martial law herein declared.
5. It shall be the duty of the Military Governors to suppress treason, sedition, disorder and violence; and to cause to be punished all disturbances of public peace and all offenders against the criminal laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed, the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay and in a summary manner, in accordance with such procedural rules as may be prescribed by the Minister of Justice. The decisions of courts of justice of the different categories in criminal cases within their original jurisdiction shall be final and unappealable. Provided, however, That no sentence of death shall be carried into effect without the approval of the President.
6. The existing courts of justice shall continue to be invested with, and shall exercise, the same jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless otherwise directed by the President of the Republic of the Philippines.
7. The several agencies of the Government of the Republic of the Philippines are hereby authorized to call upon the armed forces of the Republic to give such aid, protection, and assistance as may be necessary to enable them safely and efficiently to exercise their powers and discharge their duties; and all such forces of the Republic are required promptly to obey such call.
8. The proclamation of martial law being an emergency measure demanded by imperative necessity, it shall continue as long as the need for it exists and shall terminate upon proclamation of the President of the Republic of the Philippines.55
The next day, Proclamation No. 3056 was issued, which declared the existence of a state of war in the Philippines. The Proclamation cited the attack by the United States and Great Britain in certain parts of the Philippines in violation of the territorial integrity of the Republic, causing death or injury to its citizens and destruction or damage to their property. The Proclamation also stated that the Republic entered into a Pact of Alliance57 with Japan, based on mutual respect of sovereignty and territories, to safeguard the territorial integrity and independence of the Philippines.58 Again the situation was dire in that invasion was imminent.
The third declaration of martial law was an abuse of the concept and was deployed for other purposes. President Ferdinand Marcos issued Proclamation No. 1081 on September 21, 1972 putting the entire Philippines under martial law. The proclamation in part reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered release by me or by my duly designated representative.59 (Emphases supplied)
Subsequent events revealed the draconian control that the President allegedly had as Commander-in-Chief. As narrated in my separate opinion in the first Lagman v. Medialdea:60
The next day, on September 22, 1972, President Marcos promulgated General Order Nos. 1 to 6, detailing the powers he would be exercising under martial law.
General Order No. 1 gave President Marcos the power to "govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities, in [his] capacity and ... exercise all the powers and prerogatives appurtenant and incident to [his] position as such Commander-in-Chief of the Armed Forces of the Philippines."
General Order No. 2 ordered the arrest of several individuals. The same was followed by General Order No. 3, which stated that "all executive departments, bureaus, offices, agencies, and instrumentalities of the National Government, government-owned or controlled corporations, as well as governments of all the provinces, cities, municipalities, and barrios throughout the land shall continue to function under their present officers and employees and in accordance with existing laws." However, General Order No. 3 removed from the jurisdiction of the judiciary the following cases:
1. Those involving the validity, legality or constitutionality of Proclamation No. 1081 dated September 21, 1972, or of any decree, order or acts issued, promulgated or [performed] by me or by my duly designated representative pursuant thereto. (As amended by General Order No. 3-A, dated September 24, 1972).
2. Those involving the validity, legality or constitutionality of any rules, orders or acts issued, promulgated or performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081, dated Sept. 21, 1972.
3. Those involving crimes against national security and the law of nations.
4. Those involving crimes against the fundamental laws of the State.
5. Those involving crimes against public order.
6. Those crimes involving usurpation of authority, rank, title, and improper use of names, uniforms, and insignia.
7. Those involving crimes committed by public officers.
General Order No. 4 imposed the curfew between the hours of 12 midnight and 4 o'clock in the morning wherein no person in the Philippines was allowed to move about outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-charge of his or her area of residence. General Order No. 4 further stated that any violation of the same would lead to the arrest and detention of the person in the nearest military camp and the person would be released not later than 12 o'clock noon the following day.
General Order No. 5 ordered that:
all rallies, demonstrations, and other forms of group actions by persons within the geographical limits of the Philippines, including strikes and picketing in vital industries such as companies engaged in manufacture or processing as well as in the distribution of fuel, gas, gasoline, and fuel or lubricating oil, in companies engaged in the production or processing of essential commodities or products for exports, and in companies engaged in banking of any kind, as well as in hospitals and in schools and colleges, are strictly prohibited and any person violating this order shall forthwith be arrested and taken into custody and held for the duration of the national emergency or until he or she is otherwise ordered released by me or by my designated representative.
General Order No. 6 imposed that "no person shall keep, possess, or carry outside of his residence any firearm unless such person is duly authorized to keep, possess, or carry such firearm and any person violating this order shall forthwith be arrested and taken into custody ... "
Martial law arises from necessity, when the civil government cannot maintain peace and order, and the powers to be exercised respond to that necessity. However, under his version of martial law, President Marcos placed all his actions beyond judicial review and vested in himself the power to "legally," by virtue of his General Orders, do anything, without limitation. It was clearly not necessary to make President Marcos a dictator to enable civil government to maintain peace and order. President Marcos also prohibited the expression of dissent, prohibiting "rallies, demonstrations, and other forms of group actions" in the premises not only of public utilities, but schools, colleges, and even companies engaged in the production of products of exports. Clearly, these powers were not necessary to enable the civil government to execute its functions and maintain peace and order, but rather, to enable him to continue as self-made dictator.
President Marcos' implementation of martial law was a total abuse and bastardization of the concept of martial law. A reading of the powers which President Marcos intended to exercise makes it abundantly clear that there was no public necessity that demanded that the President be given those powers. Martial law was a stratagem. It was an artifice to hide the weaknesses of his leadership as people rose up to challenge him. It was ruse to perpetuate himself in power despite the term limitations in the 1973 Constitution.61
It is in this context that the 1987 Constitution imposed further safeguards. It was in response to the authoritarian tendencies that a commander-in-chief may display. It was part of a constitution ratified by the sovereign Filipino people that lived through these abuses. Among others, it required not simply the allegation of facts showing rebellion, but a showing of the necessity to exercise specific extraordinary powers to ensure public safety.
The 1987 Constitution returned to the original concept of martial law: a set of extraordinary powers arising only from a clear necessity, declared because civil governance is no longer possible. The authority to place the Philippines or any part thereof under martial law is not a definition of a power, but a declaration of a status - that there exists a situation wherein there is no capability for civilian government to continue. It is a declaration of a condition on the ground, that there is a vacuum of government authority, and by virtue of such vacuum, military rule becomes necessary. Further, it is a temporary state, for military rule to be exercised until civil government may be restored.
This Court cannot dictate the parameters of what powers the President may exercise under a state of martial law to address a rebellion or invasion. For this Court to tell the President exactly how to govern under a state of martial law would be undue interference with the President's powers. There may be many different permutations of governance under a martial law regime. It takes different forms, as may be necessary.
However, while this Court cannot state the parameters for the President's martial law, this Court's constitutional role is to require that the President provide the parameters himself, upon declaring martial law. The Constitution, in my reading, requires Congress to examine the powers to be wielded in relation to the facts provided. The proclamation and any extension must contain the powers he intends to wield. The powers under the rubric of martial law must reasonably relate to the exigency.
In these consolidated cases, both the President, in requesting for the extension of the "state of martial law" and the suspension of the writ of habeas corpus, as well as Congress, in granting the extension, committed grave abuse of discretion. Proclamation No. 216 s. 217, the President's request for extension and the Resolution of Both Houses No. 4 does not define the powers to be wielded. It is a carte blanche grant of extraordinary power to the President, which the Constitution does not sanction.
The absence of the public safety necessity for a declaration of martial law and the suspension of the privilege of the writ is clear from the documents presented. Marawi City has been liberated and is undergoing rehabilitation.62 Moreover, by President's own admission, the AFP "has achieved remarkable progress in putting the rebellion under control."63
Strangely, the President sought the extension of martial law not just for public safety but for other objectives as well. In his Letter to Congress, he stated that "[p]ublic safety indubitably requires such further extension, not only for the sake of security and public order, but more importantly to enable the government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion of a stable socio-economic growth and development."64 Certainly, these objectives could be achieved through the ordinary efforts of the local government units concerned. These are not bases for the suspension of the writ of habeas corpus or the declaration of martial law. These statements are a grave cause for concern as they imply sinister motives to use martial law to undermine the legal order.
General Trinidad, the Intelligence Chief or J-2 of the AFP, during the presentation before this Court, claimed that an extension of martial law in Mindanao is warranted given that "the magnitude of scope, as well as the presence of rebel groups in Mindanao" endangers public safety and the security of the entire Mindanao.65 Mere presence of rebel groups, however, does not justify the extension of martial law. There must be a showing that these groups are committing rebellion and that the rebellion has become of such magnitude that public safety requires the imposition of martial law.
V
This Court can only assess whether the public safety requires the imposition of martial law or its extension if it sees the reasonability of the specific remedy sought, in relation to the facts established. Thus, the government, in alleging that martial law is necessary, should cite specific, measurable, attainable, reasonable, and time bound objectives.
This is especially true when the second extension is for a longer period. Not only did the government fail to articulate the powers it wanted under the extension of martial law, it also failed to define the targets it has for martial law. The powers to be exercised and its sufficiency for the targets of the extension, therefore, could not be assessed. There are no judicial standards available to assess what does not exist.
During the oral arguments, General Guerrero only managed to provide a general target, "to quell the rebellion":
JUSTICE LEONEN:
Okay. Just very quickly, in one year's time, what is the objective?
GENERAL GUERRERO:
The objective is to quell the rebellion.
JUSTICE LEONEN:
Zero, no combatant. What do you mean "quell the rebellion", General? I think you are in the ...
GENERAL GUERRERO:
Ideally, Sir, it is, we should say there should be no remnants but ah ...
JUSTICE LEONEN:
So if there are remnants there will be an extension of Martial Law.
GENERAL GUERRERO:
As I have said, ideally, but we are just realistic. We cannot reduce them to zero. What is more important is for us to be able to reduce them to a significant level where they can no longer be considered as a threat.
JUSTICE LEONEN:
I think some of us have encountered "engagements with the armed forces." And we know for a fact that you conduct roadmaps in order to set your targets for particular periods.
GENERAL GUERRERO:
Yes, Your Honor.
JUSTICE LEONEN:
So, may we know what the target is under Martial Law, what exactly, how much degradation of forces are you looking at?
GENERAL GUERRERO:
You have to understand, Your Honor, that Martial Law is just a snapshot of the entire campaign plan.
JUSTICE LEONEN:
Yes, so within one year ...
GENERAL GUERRERO:
Martial Law came as a necessity because of the developments in the security situation.
JUSTICE LEONEN:
I understand but ...
GENERAL GUERRERO:
The original campaign plan stated for a duration of 2017 to 2022 but we have broken down our activities by months, by years, by quarters . . .
JUSTICE LEONEN:
Okay, so the original plan was 2017 to 2022 did not envision Martial Law, is that not correct?
GENERAL GUERRERO:
Yes, Your Honor.
JUSTICE LEONEN:
And now with Martial Law, it is going to be speeded up, is that not correct?
GENERAL GUERRERO:
That is our hope, Your Honor, for us to be able to fast track the accomplishment of our mission.
JUSTICE LEONEN:
So, what is the target in 2018?
GENERAL GUERRERO:
The target for 2018 is for us to reduce, to finish the remaining ISIS rebels here in Mindanao, and there are others ...
JUSTICE LEONEN:
You realize, of course, that we are the only country in the world that has that for a target, for a realistic target ...
GENERAL GUERRERO:
Pardon me, Your Honor.
JUSTICE LEONEN:
We are the only country in the world, all countries will want to remove all ISIS inspired. But even the United States, and I will show you later, has said that it is close to improbable unless you actually dig human rights violation in order to remove all of it but, for course, it will increase the rebellion in case you want to do so. But if you really want a realistic target, it cannot be zero ...
GENERAL GUERRERO:
Clearly, Your Honor.
JUSTICE LEONEN:
... unless you're saying, General, that after 2018, if there is a single communist existing, a single Daesh person existing, or the rag tag team of the BIFF existing, that there will still be an extension of Martial Law.
GENERAL GUERRERO:
Your Honor, the problem is not only military. Talking about reducing the number of the armed elements to zero is impossible for as long as we do not address the root cause of the problem.
JUSTICE LEONEN:
Okay. So, under Martial Law you will have control of social welfare.
GENERAL GUERRERO:
Not control, Your Honor. Clearly we have not vested with that authority and we do not intend to arrogate such function upon ourselves.
JUSTICE LEONEN:
Good. So, nice to hear that from you but then isn't that the actual situation without Martial Law?
GENERAL GUERRERO:
I do not know, I cannot speak for the Department of Social Welfare and Development, Your Honor.
. . . .
JUSTICE LEONEN:
Yes, so what did Martial Law add?
GENERAL GUERRERO:
As I have said, it has given us enhanced authority, Your Honor.
JUSTICE LEONEN:
Yes, but the enhanced authority is not clear but perhaps I should ask that of the Solicitor General to be fair to you because you are in ...
GENERAL GUERRERO:
Let me just explain, Your Honor.
JUSTICE LEONEN:
Yes.
GENERAL GUERRERO:
What today is multi-dimensional. What you see in Marawi is only one dimension of the war that is tactical.
JUSTICE LEONEN:
Yes.
GENERAL GUERRERO:
Beneath the tactical warfare that is very obvious and very apparent are underlying elements ...
JUSTICE LEONEN:
Yes.
GENERAL GUERRERO:
Elements that involve politics ...
JUSTICE LEONEN:
Yes.
GENERAL GUERRERO:
. . . legal, informational, cyber, political, diplomatic, economical and technological.
. . . .
JUSTICE LEONEN:
Okay. So, the group in Basilan is severely degraded, is that not correct?
GENERAL GUERRERO:
I beg your pardon, Your Honor?
JUSTICE LEONEN:
The group in Basilan is severely degraded, the Basilan ASG, because this was the Hapilon group. And most of them transferred to Marawi, is that not correct?
GENERAL GUERRERO:
You have to understand, Your Honor, that the figures I have presented are figures based on intelligence reports that we have gathered on the ground. They are not accurate. In fact, they have only accounted for regulars, armed regulars, but we have not accounted for sympathizers, Your Honor.
JUSTICE LEONEN:
The intelligence reports are not accurate.
GENERAL GUERRERO:
Yes, Your Honor.
JUSTICE LEONEN:
And we are relying on the accuracy of the presentation of the Army to declare Martial Law or for the sufficiency of facts. What do you mean "they are not accurate"?
GENERAL GUERRERO:
It is not accurate in a sense that we cannot guarantee the one hundred percent exactness of the figures that they are presenting.
JUSTICE LEONEN:
Okay. So, the army presented figures, of course, not one hundred percent with confidence, and now these conclusions of fact have been presented to the Court. So, are we not relying on facts which have no sufficiency in basis?
GENERAL GUERRERO:
Your Honor, the intelligence process is a tedious process. It is not guess work, Your Honor.
JUSTICE LEONEN:
But part of it is.66
Also, in response to the interpellation of the Chief Justice, the Chief of Staff of the Armed Forces could only zero in on the "psychological advantage" of the announcement of martial law. Thus:
CHIEF JUSTICE SERENO:
So, the martial law administrator is the Secretary?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
Okay. Because you are the implementor you can immediately just say to the agencies, We need this, evacuate, they will immediately follow because you are the martial law implementor, is that correct?
GENERAL GUERRERO:
My implementation of martial law, Your Honor, is dependent on the powers that are, or authorities that are vested in me by the President.
CHIEF JUSTICE SERENO:
Okay. So, what makes it easier, is it psychological? That's why I've been asking since yesterday, is it psychological, the calling out powers on steroids?
GENERAL GUERRERO:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
So, it's psychological?
GENERAL GUERRERO:
It's partly psychological, Your Honor.
CHIEF JUSTICE SERENO:
Okay, partly psychological. What do you think makes people more cooperative in a martial law setting?
GENERAL GUERRERO:
It's the fact that a, a strong authority is in charge.
CHIEF JUSTICE SERENO:
A what?
GENERAL GUERRERO:
A strong authority is in charge.67
VI
Reviewing the sufficiency of the factual basis means examining both the allegations and the reasonability of the inferences arising from the actual facts used as basis for such allegations. In other words, we should not content ourselves with the factum probandum or what is alleged. We should also review the factum pro bans as well. A proper review of the "sufficiency of the factual basis" requires that this Court examine the evidentiary facts that would tend to prove the ultimate facts and the premises of the inferences used to arrive at the conclusions made by the government.
The government, through the AFP, regaled this Court with its allegations of fact. This was accepted by the majority in Congress and the majority in this Court. There was no effort to reveal the general sources of this intelligence information, the nuances in the analysis of the various groups, and the premises used to make the inferences from the sources which they gathered.
In other words, the majority accepts only the allegations of fact of the Armed Forces and the President. Certainly, this cannot meet the Constitutional requirement that this Court review the "sufficiency of the factual basis" of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.
This Court often discusses the difference between ultimate and evidentiary facts in relation to pleadings, and what must be alleged to establish a cause of action. Ultimate facts are the facts that constitute a cause of action. Thus, a pleading must contain allegations of ultimate facts, so that a court may ascertain whether, assuming the allegations to be true, a pleading states a cause of action.68 Of course, the veracity of the ultimate facts will be established during trial, generally through the presentation of evidence that will prove evidentiary facts. In Tantuico, Jr. v. Republic,69 this Court explained:
The rules on pleading speak of two (2) kinds of facts: the first, the "ultimate facts", and the second, the "evidentiary facts." In Remitere vs. V da. de Yulo, the term "ultimate facts" was defined and explained as follows:
"The term 'ultimate facts' as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiff's cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient .... " (Moran, Rules of Court, Vol. 1, 1963 ed., p. 213).
"Ultimate facts are important and substantial facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests."
while the term "evidentiary fact" has been defined in the following tenor:
"Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are based. Womack v. Industrial Comm., 168 Colo. 364, 451 P.2d 761, 764. Facts which furnish evidence of existence of some other fact."70
Another basic rule that this Court must not lose sight of in its undertaking is that a bare allegation is not evidence.71 Surmise is not evidence,72 conjecture is not evidence,73 suspicion is not evidence,74 and probability is not evidence.75
Worth noting is the emphasis on the importance of credible evidence. This is contained in a catena of cases already decided by this Court.
In Castillo v. Republic:76
Basic is the rule that bare allegations, unsubstantiated by evidence, are not equivalent to proof, i.e., mere allegations are not evidence. Based on the records, this Court finds that there exists insufficient factual or legal basis to conclude that Felipe's sexual infidelity and irresponsibility can be equated with psychological incapacity as contemplated by law. We reiterate that there was no other evidence adduced. Aside from the psychologist, petitioner did not present other witnesses to substantiate her allegations on Felipe's infidelity notwithstanding the fact that she claimed that their relatives saw him with other women. Her testimony, therefore, is considered self-serving and had no serious evidentiary value.
Thus, although a psychologist testified as to the link between the husband's infidelity and psychological incapacity in Castillo, this Court reiterated that the courts, in all the cases they try, must base judgments on the totality of evidence adduced during their proceedings:
It bears repeating that the trial courts, as in all the other cases they try, must always base their judgments not solely on the expert opinions presented by the parties but on the totality of evidence adduced in the course of their proceedings.77
Likewise in Dela Liana v. Biong,78
Notably, Dra. dela Llana anchors her claim mainly on three pieces of evidence: (1) the pictures of her damaged car, (2) the medical certificate dated November 20, 2000, and (3) her testimonial evidence. However, none of these pieces of evidence show the causal relation between the vehicular accident and the whiplash injury. In other words, Dra. de la Liana, during trial, did not adduce the fact um pro bans or the evidentiary facts by which the factum probandum or the ultimate fact can be established, as fully discussed below.
Dra. dela Llana contends that the pictures of the damaged car show that the massive impact of the collision caused her whiplash injury. We are not persuaded by this bare claim. Her insistence that these pictures show the causation grossly belies common logic. These pictures indeed demonstrate the impact of the collision. However, it is a far-fetched assumption that the whiplash injury can also be inferred from these pictures.
Also, in Gomez v. Gomez:79
Before proceeding further, it is well to note that the factum probandum petitioner is trying to establish here is still the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo. The factum probans this time around is the alleged payment of the Donors Tax after the death of Consuelo.
Firstly, it is apparent at once that there is a failure of the factum probans, even if successfully proven, to prove in turn the factum probandum. As intimated by respondents, payment of the Donors Tax after the death of Consuelo does not necessarily prove the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo.
Secondly, petitioner failed to prove this factum pro band um.
Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB Check No. A144-7321 l to the BIR. He instead testified that the check was prepared and issued by Consuelo during her lifetime, but that he, Ariston, Jr., physically and personally delivered the same to the BIR. On the query, however, as to whether it was delivered to the BIR before or after the death of Consuelo, petitioner and respondents presented all the conflicting evidence we enumerated above.
The party asserting a fact has the burden of proving it. Petitioner, however, merely formulated conjectures based on the evidence he presented, and did not bother to present Nestor Espenilla to explain the consecutive numbers of the RTRs or what he meant with the words on even date in his certification. Neither did petitioner present any evidence that the records of the BIR Commissioner were falsified or antedated, thus, letting the presumption that a public official had regularly performed his duties stand. This is in contrast to respondents direct evidence attesting to the payment of said tax during the lifetime of Consuelo. With respect to respondents evidence, all that petitioner could offer in rebuttal is another speculation totally unsupported by evidence: the alleged fabrication thereof.
In V da. de Viray v. Spouses Usi,80 this Court explained:
The Court rules in favor of petitioners.
Petitioners contend first off that the CA erred in its holding that the partitions of Lot 733 and later of the divided unit Lot 733-C following the Galang Plan were actually the partitions of the pro-indiviso shares of its co-owners effectively conveying to them their respective specific shares in the property.
We agree with petitioners.
First, the CA's holding aforestated is neither supported by, nor deducible from, the evidentiary facts on record. He who alleges must prove it. Respondents have the burden to substantiate the factum probandum of their complaint or the ultimate fact which is their claimed ownership over the lots in question. They were, however, unsuccessful in adducing the factum probans or the evidentiary facts by which the factum probandum or ultimate fact can be established.
Finally, in People v. Agustin:81
Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidence are not allowable in court, still the absence thereof does not warrant the acquittal of appellant. In People vs. Comia, where this particular issue was involved, the Court held that the complainants' failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failure to present receipts before the trial court as proof of the said payments, is not fatal to their case. The complainants duly proved by their respective testimonies that said accused was involved in the entire recruitment process. Their testimonies in this regard, being clear and positive, were declared sufficient to establish that factum probandum.
Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses, their statements being positive and affirmative in nature. This is more worthy of credit than the mere uncorroborated and self-serving denials of appellant. The lame defense consisting of such bare denials by appellant cannot overcome the evidence presented by the prosecution proving her guilt beyond reasonable doubt.
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.
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.
VII
Put differently, the factual basis for the proclamation of martial law and its extension must not only be those that are alleged, but also that the allegation must be sufficient or credible. The facts can only be judicially deemed sufficient if their basis is transparent and legible. The basis relied upon for the proclamation of martial law or its extension must be shown, to a certain degree of confidence, to be factually true based upon the credibilityof its intelligence sources and the viability of its inferences. Sufficient validation must be shown in terms of the suggestions made by intelligence sources, as well as checking on the reliability of the process of reaching a conclusion. The conclusion must be factually sufficient as of the time of the review both by Congress and then by this Court.
The President cannot be expected to personally gather intelligence information from the ground. He or she would have to rely on intelligence reports given by those under his or her command.82 That it is based on intelligence information does not mean that Congress and the Court cannot inquire further because of its confidentiality. Otherwise, there will be no sense in the review of the factual sufficiency for the exercise of the powers of the Commander-in-Chief.
Intelligence information is gathered through five (5) intelligence information disciplines namely: (I) signals intelligence; (2) human intelligence; (3) open-source intelligence; (4) geospatial intelligence; and (5) measurement and signatures intelligence. I described these intelligence information disciplines in my dissenting opinion in Lagman:
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."
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."83 (Citations omitted)
Intelligence reports must be shown to have at least undergone a rigorous analytical process for them to be considered truthful and worthy of belief. It is not enough that facts are gathered through the five (5) intelligence collection disciplines. Good intelligence requires good analysis. The information gathered must be analyzed through the application of specialized skills and the use of analytical tools. For instance, levels of confidence may be ascribed to determine the quality and reliability of the information. Information, assumptions, and judgments may also have to be differentiated so as not to muddle established facts with mere assumptions. All these processes require the use of sound logic.84
In this case, there is no sufficient factual basis that would support Congress' act of extending the proclamation of martial law in Mindanao.
No intelligence information-other than possibly a power point presentation-was given to each member of the House of Representatives and the Senate from which they could assess if an extension of martial law in Mindanao was warranted. During the oral arguments, petitioner Lagman explained that the members of Congress were not informed of the context of the intelligence information backing the President's initiative to extend the proclamation of martial law in Mindanao. Congress was not even informed of the processes done to vet the information they were provided:
JUSTICE LEONEN:
Were you introduced to the different factions inside the BIFF?
CONGRESSMAN LAGMAN:
No, Your Honor.
JUSTICE LEONEN:
Were you introduced to the different factions of the Abu Sayyaf Group?
CONGRESSMAN LAGMAN:
No, Your Honor.
JUSTICE LEONEN:
In other words, in the entirety of the deliberations in the extension of Martial Law, the Congress did not have the opportunity to act, look at the context of the intelligence information given to you.
CONGRESSMAN LAGMAN:
The time given to us was too short that we could not exhaust all the possible questions we have to ask.
. . . .
JUSTICE LEONEN:
You are not aware that the Abu Sayyaf Group, not its entirety, not all of them are affiliated with ISIS or ISIS-inspired groups.
CONGRESSMAN LAGMAN:
There was no detail of this, Your Honor.
JUSTICE LEONEN:
No information about that?
CONGRESSMAN LAGMAN:
No information.
JUSTICE LEONEN:
You are not aware of the strength of the AKP as of December of last year? That in the reports of the intelligence, they say that there are about 7, 8 or 9 individuals only under the AKP, based on intelligence reports that were given to the Supreme Court.
CONGRESSMAN LAGMAN:
That was not part of the briefing and that was not deliberated upon during joint session.
JUSTICE LEONEN:
And you are not aware of what the 185 skirmishes were and whether the army was walloped, or it was the enemy that was walloped, 180 plus skirmishes with the Abu Sayyaf and the NP As.
CONGRESSMAN LAGMAN:
There was a litany of skirmishes as said in this letter, as well as in the briefings, but no details were given to us.
JUSTICE LEONEN:
So, you were not told that in most of these skirmishes, in fact almost all, the army prevailed.
CONGRESSMAN LAGMAN:
No, Your Honor, we were not informed of that.
JUSTICE LEONEN:
And you were told that because there were so many skirmishes, they needed Martial Law.
CONGRESSMAN LAGMAN:
That's correct, Your Honor.85
VIII
The facts even only as alleged by the government, assuming them to be true, do not adequately show that there is the kind of rebellion that requires a declaration of martial law or the suspension of the writ of habeas corpus.
First, by the Executive's own admission, the neutralization of at least "920 DAESH-inspired fighters" as well as their leaders fast-tracked the clearing of Marawi City, hastened its liberation, and paved the way for its rehabilitation.86 The numbers of the purported DAESH-inspired groups have gone down and as a result, "remnants" of these groups are now only in the process of rebuilding through recruitment operations.
In other words, the government, in so far as the purpose for declaring martial law through Proclamation No. 216, Series of 2017 is concerned, already achieved its target.
However, in his Letter dated December 8, 2017 addressed to Congress, President Duterte asserted that the continued recruitment operations of local terrorist groups warranted the extension of martial law. He stated that "despite the death of Hapilon and the Maute brothers, the remnants of their Groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion."87 These recruitment operations, according to AFP Chief of Staff General Guerrero, point to the conclusion that these groups are capable "of strengthening their organization."88 Thus:
[T]he remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan.89
The President's conclusions seem to be in reference to the conclusion of Secretary of Defense Delfin Lorenzana, who also emphasized the recruitment operations of local terror groups as a justification to extend martial law in Mindanao. In his Letter to President Duterte, Secretary Lorenzana wrote that "remnants of their groups were monitored to be continuously rebuilding their organization through the recruitment and training of new members/fighters."90
Among the local terror groups surveyed are the Bangsamoro Islamic Freedom Fighters (BIFF), the Abu Sayyaf Group (ASG), the Dawlah Islamiyah (DI), and communist rebels.91 Based allegedly on the military's consistent monitoring, the "MAUTE Group, TURAIFIE Group, MAGUID Group, and Basilan-based ASG continuously conduct recruitment and training activities" in Basilan, Lanao Provinces, Maguindanao, and Sarangani.92
The Maute Group, in particular, is alleged to have intensified their recruitment efforts in various areas in Mindanao, particularly in Marawi City, Lumbatan, Bayang, Tubaran, and in Lanao del Sur.93 Maguid remnants are allegedly also actively recruiting in Sarangani and Sultan Kudarat94 while the Turaifie Group continues to recruit, reorganize, and strengthen its capabilities.95 They add that "local terrorist remnants are continuously reorganizing, radicalizing communities, recruiting new members, and sow terror," allegedly due to the support of foreign terrorist organizations.96
The alleged recruitment operations undertaken by the remnants of local terror groups do not clearly establish actual rebellion or even the imminence of one. The BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG's perceived capability of "staging similar atrocities and violent attacks"97 remains just that.
If at all, these groups' recruitment activities only tend to prove that their numbers have gone down, prompting them to rebuild their weakened organizations. For example, the AFP has confirmed that the manpower of the Bangsamoro Islamic Freedom Fighters was reduced from 2016 to the first semester of 2017 by at least 4.33%.98
More importantly, the AFP in their presentation admits to the total fighting strength of the alleged terrorist taken together and the numbers of its new recruits. It claims that there were 400 members out of the 537 total who are new recruits of the Dawlah Islamiyah.99
This allegation of fact by itself should be enough to cause serious reflection.
There are more than a hundred thousand men and women in the AFP. There will be more if we consider the strength of the Philippine National Police. There are millions of residents in various provinces and municipalities in the different islands that comprise the Mindanao region. 537 seem so obviously deficient to hold any ground or to challenge the authority of the entire machinery of the Republic of the Philippines.
The basis of the AFP to arrive at such exact number for the total personnel complement of a terrorist group in hiding has not been presented. If we grant the exact number to be accurate, then it would also be reasonable to conclude that law enforcers know who they are and where they are already located, and therefore, could fashion operations that would interdict or disrupt their activities. If it is true that the 400 members are new recruits, then the alleged hard-core members would only amount to 137. Again, this hardly is a decent figure that will support an extended declaration of martial law and a suspension of the writ of habeas corpus throughout the entire Mindanao region, and for a period of one year.
Furthermore, the Armed Forces also admits the motivations for the 400 to join these groups. In its PowerPoint presentation, it cites clannish culture with the relatives of terrorist personalities, revenge for killed relatives/parents during the Marawi operations, financial gains of new recruits, and radicalized converts as among the reasons for the increase in DI recruits.100
Again, the basis for the military's conclusions as to the motives of those who joined the terrorist group was unclear and was never presented. Both Congress and this Court were made to accept these conclusions without any basis other than their assertion. This is hardly the kind of scrutiny that the Constitution requires when it states that "sufficiency in the factual basis for the declaration of martial law."
Even if these were true, this Court should be hard pressed to find any relation at all to how a declaration of martial law or a suspension of the writ of habeas corpus will address these motives. A military solution does not address clannish cultures, motivations for revenge, financial needs, or conversion into a new religion. Rather, it can simply be further cause for radicalization.
Both the President and Armed Forces Chief of Staff General Guerrero continue to assert that the recruitment "pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery, and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao."101 Again, apart from being simply allegations, early recovery is clearly not a constitutional basis for the use of Commander-in-Chief powers. If it is, then logically the labyrinth of our procurement law, misunderstanding among local government officials, and corruption can also be basis for a future declaration of martial law.
IX
Second, a closer look at the analysis of the facts, even only as alleged, as presented to Congress and this Court, does not support the respondents' conclusion as to the persistence of the kind of rebellion that warrants a declaration of martial law or the suspension of the privilege of the writ of habeas corpus.
To instill fear in uninquisitive minds, the government presents a grand, coordinated plan to overthrow it and attempts to portray the local groups as coordinated and DAESH-affiliated. To add some credibility to the claim of rebellion, the government repeatedly alleges that the groups have a common goal to establish a wilayat in Mindanao.
In Lagman v. Medialdea, respondents failed to completely account for the internal factions and ideological differences within the alleged ISIS-inspired groups. This cast doubt on the accuracy of the claim that these groups were united in the goal of establishing a wilayat. The reports essentially just enumerated the widespread atrocities of the ISIS-inspired groups102 and made it appear that these groups were working together under a cohesive plan.103
The Dawlah Islamiyah, a coalition of DAESH-inspired local terror groups composed of the ASG Basilan, some members of the Abu Sayyaf Sulu Group, the Maute Group, AKP, and the Turaifie Group are alleged to have recruited 400 individuals in addition to the present 137 members.104 The Turaifie Group, a relatively new group, allegedly recruited 70 new members in addition to their present membership.
Yet there was no proof to show the coordination between the groups. The possibility that they will have the motive or ability to wage the kind of rebellion sufficient to excite the extraordinary power of martial law is lacking.
The numbers presented by AFP show that a majority of 52% (or 280 individuals out of a total of 537) of the Dawlah Islamiyah is made up of the Maute Group.105 However, as pointed out in my dissenting opinion in Lagman, the Maute Group began as a private militia, known primarily for their extortion activities. It was founded by scions of a political clan who regularly fielded candidates for local elections. The Maute Group is followed by the Basilan-based ASG faction in numbers, which comprises 21.8% (117 individuals) of the entire group. As mentioned in my dissenting opinion in Lagman, the Basilan-based ASG faction, which was also engaged in kidnappings and extortion, was bound by ethnicity, family ties, loyalty to leadership, and desire for revenge-not ideology.106
Furthermore, with the death of its key leaders in Marawi and the continued arrests of its members, the government has not credibly presented the emergence of a stronger leadership for this faction.
In its assessment of the ASG, the AFP highlighted the group's activities.107 There was no correlation made between these activities and the purported rebellion. The AFP claims that the "death of Hapilon fast-tracked the unification of the Sulu- and Basilan-based ASG to achieve their common goal with the Dawlah Isalmiyah in establishing a wilayat in Mindanao." This, however, is a bare allegation. Again, the AFP did not present anything to prove that the Abu Sayyaf Sulu group and Basilan group are indeed coordinating with each other.
The AFP recognized the BIFF as a factionalized organization. During the oral arguments, General Trinidad stated that "the leadership differences between Esmail Abubakar alias "BUNGOS" and "KARIALAN" have divided the BIFF into factions." Strangely however, the AFP claims that "both factions still reinforce each other"108 and that some BIFF elements "also coddle and provide support to their comrades and relatives under the group of former Vice Chairman for Internal Affairs Abu Turaifie."109 Again, no evidence was presented to indicate coordination between the two (2) factions or the coordination of some BFF elements with Turaifie. As such, these claims remain to be mere allegations. The reasons for the factionalism have not been presented. The motive to move together in joint operations have not been presented. Neither have cases been presented as to their ability to join forces in the past.
The AFP's assessment that "[o]ther DAESH-inspired and like-minded rebel groups remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao"110 also does not appear to be supported by any evidence. Assuming that this assertion is truthful and accurate, the capability to commit atrocities does not conclusively or even remotely establish that rebellion exists, that it is imminent, or that the requirement of public safety as required by the constitution exists.
The AFP assessed that the Dawlah Islamiyah is attempting "to replicate the siege of Marawi in other cities or areas in Mindanao to achieve their goal of establishing a wilayat."111 However, this assessment is only based on the alleged continuous recruitment and training activities of these groups and on the alleged "support of Foreign Terrorist Fighters."112 These allegations were further not substantiated by the AFP during their presentation.
The woeful numbers of terrorist personnel (537) and the belief in the possibility of their coordination alone does not support this portrayal of being able to establishing a wilayat. It is not based on credible evidence.
Worse, the portrayal is inaccurate, even beyond conjecture, as it is incompatible with the known context here in the Philippines. Even a cursory look at the context of Islam in the Philippines would reveal that the portrayal of the DAESH-inspired groups is incongruous with the current understanding of ISIS, DAESH, the local terrorist groups, or the ARMM and its populace.
As discussed in my dissenting opinion in Lagman, adherence to DAESH ideology would naturally alienate the Muslim population throughout Mindanao.113 The DAESH brand of Islam is fundamentally nihilistic and apocalyptic, and unabashedly medieval.114 DAESH has been described as following Salafi-jihadis. They are of the position that many Muslims are marked for death as apostates, having done acts such as wearing Western clothes, shaving one's beard, voting in an election, or even being lax about calling others apostates.115
X
Third, there is also absolutely no basis for the extension of martial law in the area requested, that is, the entire Mindanao region.
The on-going recruitment operations and reorganization efforts alleged to be "geared towards the conduct of intensified atrocities and armed public uprisings" are admittedly being carried out only in Central Mindanao, particularly "in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan."116 This is not yet the area of operations but merely the recruitment areas.
The supposed target areas of the Turaifie Group and the Bangsamoro Islamic Freedom Fighters certainly do not comprise the entire region of Mindanao but only the Cotabato area and Maguindanao. Furthermore, although the areas of Basilan, Sulu, Tawi-Tawi, and the Zamboanga Peninsula were mentioned in relation to the Abu-Sayyaf group, there is no evidence or allegation showing that these areas are indeed targets of the Abu-Sayyaf group.
In his Letter to Congress, the President only identified these as key areas because of the presence of ASG remnants: "[f]ourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern."
The presentation of the AFP mentioned that the BIFF continues to sow terror in Central Mindanao.117 The Abu-Sayyaf Group is still present in Zamboanga, Tawi-Tawi, and Sulu.118 Meanwhile, the Maute Group, the Turaifie Group, and the AKP continue to occupy areas in Central Mindanao.119 Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula were also identified as key areas due to the concentration of the remnants of the Abu-Sayyaf Group in those areas.120
Then, there is the epistemological jump. The President asked and Congress approved that the implementation of martial law and the suspension of the privilege of the writ of habeas corpus cover the entire Mindanao area. It is true that law enforcement will be required to disrupt any nefarious intention. Certainly, however, justifying law enforcement is a world apart from justifying the factual sufficiency for martial law or the suspension of the writ of habeas corpus.
XI
Fourth, the President and his advisers failed to explain why Congress should "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) year" or from January 1, 2018 to December 31, 2018. Likewise, there is no explanation why the original period of 60 days was insufficient. There was likewise no explanation why the first extension of a few months was also not enough.
At the very least, the recommendation of AFP Chief of Staff General Guerrero should have enumerated targets or specific objectives that the AFP intended to accomplish during the extension. No success indicators were even mentioned in his recommendation to the President. The request for a one (1)-year extension of martial law, therefore, appears to be unreasonable and arbitrary as there is no correlation between the objectives of the extension to the requested time frame.
The President, through the recommendation of AFP Chief of Staff General Guerrero, stated that the extension of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao would help all law enforcement agencies to "quell completely and put an end to the on-going rebellion in Mindanao and prevent the same from escalating to other parts of the country,"121 without stating the powers he would be requiring to accomplish these objectives. The ambiguous objective seems to guarantee further extensions. The failure of the majority to see that the facts are not sufficient to support an extension almost guarantees those extensions.
Strangely, the AFP seeks the extension of martial law and the suspension of the writ of habeas corpus in Mindanao not to "gain any extra power ... but to hasten the accomplishment of the AFP's mandated task in securing the safety of our people in Mindanao, in particular and the whole country, in general."122 The AFP did not specify in its presentation what powers they would use during the extension of martial law. This goal of hastening AFP's accomplishment of its mandated task hardly justifies the purpose or rationale behind the one (1)-year extension. The extension is purely arbitrary. It is, thus, unconstitutional.
XII
Finally, the government's surreptitious insertion of incidents relating to the 50-year protracted and diminishing Marxist Leninist Maoist insurrection communist insurrection of the Communist Party of the Philippines through its New Peoples' Army and National Democratic Front falls short of the constitutional requirements. It appears to be an afterthought to bolster the factual milieu in view of the military successes in relation to the alleged DAESH-related groups.
The insurrection by the related groups under the wing of the Communist Party of the Philippines or the New Peoples' Army or the National Democratic Front was not in the proclamation or used as basis for the first extension of the declaration of the state of martial law and the suspension of the privilege of the writ of habeas corpus.123 There is also no explanation why this ongoing insurrection should be the basis for extending martial law or suspending the writ of habeas corpus only throughout Mindanao considering that there are isolated incidents of violence attributed to this group in other parts of the country. Nor was there any explanation why the exercise of these Commander-in-Chief powers will be for one year considering that the engagement with the army has been for more than fifty years. It is not clear what is sought to be achieved within this one-year period in relation to this group.
The initial declaration of martial law was based on the acts of the Maute group on May 23, 2017. Proclamation No. 216 reads, in part:
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.124
A perusal of Proclamation No. 216 reveals that the true intent of the initial declaration of martial law was to quell the rebellion allegedly carried out by the Maute group and other DAESH-inspired groups. It was premised solely on the alleged plan of the DAESH-inspired groups to establish a wilayah in Mindanao.125 Proclamation No. 216 referred to and highlighted the atrocities that the DAESH-inspired groups committed but nowhere did it mention the communist insurgency led by the NP A or acts attributable to the NPA.
That Proclamation No. 216 was limited in its scope to the DAESH-inspired groups is even more magnified by the Solicitor General's admission in this case that the focus of the initial proclamation of martial law "was the Marawi S[ie]ge ... and the Daesh inspired rebellious groups"126 as well as evidence presented by the government in Lagman v. Medialdea. There was absolutely no reference to the NP A or atrocities attributable to the NPA.
As if to give credence to the extension of martial law in the entire region of Mindanao for a year, the NP A's communist insurgency was included as a justification for the first extension.
In a Letter127 dated July 18, 2017, the President reported on the successful operations in Marawi City:
From 23 May 2017 to 10 July 2017, the AFP's operations had neutralized three hundred seventy-nine (379) out of the estimated six hundred (600) DIWM rebels, and had recovered three hundred twenty-nine (329) firearms. Around one thousand seven hundred twenty-two (1, 722) residents of Marawi City had been rescued and a total of sixteen (16) barangays had been declared clear of DIWM presence. During clearing operations conducted by the AFP, approximately Seventy-Five Million Pesos (₱75,000,000.00) in cash and cheques were recovered from a house in Marawi City.
Operations against other rebel groups likewise yielded positive results. Against the BIFF, eighteen (18) members had been neutralized and two (2) had been arrested. Against the ASG, twenty-three (23) had been neutralized, five (5) apprehended, forty-one (41) surrendered to government forces, and forty-seven (47) firearms had been recovered.128
Without explaining the connection to the alleged actual rebellion, the President added:
As the government's security forces intensified efforts during the implementation of Martial Law, one hundred eleven (111) members of the New People's Army (NPA) had been encountered and neutralized, while eighty-five (85) firearms had been recovered from them.129
Also, in his Letter dated December 8, 2017, the President said:
Apart from these, at least fifty-nine (59) arson incidents have been carried out by the NP A in Mindanao this year, targeting businesses and private establishments and destroying an estimated ₱2.2 billion-worth of properties. Of these, the most significant were the attack on Lapanday Food Corporation in Davao City on 09 April 2017 and the burning of facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental on 06 May 2017, which resulted in the destruction of properties valued at ₱l.85 billion and ₱109 million, respectively.
As a direct result of these atrocities on the part of the NP A, I was constrained to issue Proclamation No. 360 on 23 November 2017 declaring the termination of peace negotiations with the National Democratic Front-Communist Party of the Philippines-New People's Army (NDF-CPP-NPA) effective immediately. I followed this up with Proclamation No. 374 on 05 December 2017, where I declared the CPPNPA as a designated/identified terrorist organization under the Terrorism Financing Prevention and Suppression Act of 2012, and the issuance of a directive to the Secretary of Justice to file a petition in the appropriate court praying to proscribe the NDF-CPP-NPA as a terrorist organization under the Human Security Act of 2007.130
During oral arguments, several Justices pressed for an explanation from respondents, having noticed the discrepancy in using the NPA as basis for the extension of martial law:
JUSTICE CARPIO:
Thank you. Counsel, let['s] settle it. Just one more point. In the original declaration of martial law, only the Maute rebellion was mentioned specifically, correct?
SOLICITOR GENERAL CALIDA:
There were others, Your Honor.
JUSTICE CARPIO:
And other rebels? But not, no other specific rebellions? Maute or Maute group DAES is ISIS inspired, but no other rebels?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Okay, so no specific mention of CPP-NPA rebellion. It's just other rebels.
SOLICITOR GENERAL CALIDA:
Yes, but it is subsume[d] under that term, Your Honor.
JUSTICE CARPIO:
Yes, okay. Now, in the first extension. There was also no mention of CPP-NPA specifically it was not mentioned. Correct?
SOLICITOR GENERAL CALIDA:
Actually, Your Honor, the president mentioned it, Your Honor. And may I read for the record.
JUSTICE CARPIO:
First extension?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
As the government security forces intensified efforts during the implementation of martial law, one hundred eleven members of the New People's Army (NPA) had been encountered and neutralized while eighty-five firearms have been recovered from them.
JUSTICE CARPIO:
But what was the first extension merely extended the initial declaration. Correct?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
WSTICE CARPIO:
So what governs is the initial declaration? Because you were just extending it.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor. But I mentioned the term.
WSTICE CARPIO:
Yes.
SOLICITOR GENERAL CALIDA:
And other rebel groups includes the NP A, Your Honor.
JUSTICE CARPIO:
Yeah, but the first proclamation of the President in the first declaration mentions other rebels.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
WSTICE CARPIO:
Without specifying what these other rebels are, other rebels aside from the Maute Group, there were other rebels.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Now, in this second extension, it says now, CPP-NPA?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.
JUSTICE CARPIO:
Now, my question is, when the Constitution says that if the rebellion persists, then Congress may extend. When you use the word persist and extend, you referring to the original ground for declaration of martial law. Correct?
SOLICITOR GENERAL CALIDA:
Yes, Your Honor. But as I've said, it covers the NPA because the Court can take judicial notice the oldest rebel group in the Philippines is the NPA. They have been fighting the government way back in 1960s, Your Honor.
JUSTICE CARPIO:
You are saying that when the Congress approved or approved the extension, the first extension, they were also referring to the CPP-NPA rebellion? Is that what you are saying?
SOLICITOR GENERAL CALIDA:
That is what I assumed, Your Honor.
JUSTICE CARPIO:
Okay, and also this Court, also when the Court approved.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor.131
. . . .
JUSTICE LEONEN:
I'll move on to a different point and just a point of fact. During the confidential hearings on the first Martial Law Petition, Lagman v. Medialdea, you were present, correct?
SOLICITOR GENERAL CALIDA:
I was, Your Honor.
JUSTICE LEONEN:
Okay, that is not confidential. Will you confirm that there was no presentation during the confidential briefing on the CPP-NPA?
SOLICITOR GENERAL CALIDA:
Well, at that time, Your Honor, because of the on-going peace negotiations, we did not want to, you know . . . when we are in a negotiating mode, Your Honor, you want to be in the ... (interrupted)
JUSTICE LEONEN:
I understand but my question is a bit factual that to convince the Court that there was a necessity for the proclamation of Martial Law in Lagman v. Medialdea, one, that was last year, there was no presentation of the CPP NPA's strength and "atrocities".
SOLICITOR GENERAL CALIDA:
I think the focus there was the Marawi S[ie]ge, Your Honor, and the Daesh inspired rebellious groups, Muslim groups, Your Honor.132
. . . .
JUSTICE LEONEN:
Extension of Martial Law. By the way, was the NPA or the existence of the NP A, the basis for the initial proclamation of Martial Law?
ATTY. COLMENARES:
It was stated as an initial, in the initial proclamation, your Honor. It only stated, in fact, the entire proclamation it only stated the events in Marawi and the Maute, Your Honor.
JUSTICE LEONEN:
Because my reading might have been mistaken of the proclamation, there might have been several paragraphs which were not there, but are you sure that in Proclamation 216, there is no mention of the NPA at all?
ATTY. COLMENARES:
Yes, there was no mention, Your Honor, I think it was only three pages. In fact, the proclamation merely alleged that there is rebellion as shown by the examples of Maute activities in Marawi. And in fact, the proclamation, Your Honor, in fact even failed to allege that public safety requires the imposition of Martial Law, Your Honor.133
To understand the motive and dangers of the intercalation, a distinction must be made between terrorism and rebellion. Terrorist acts are largely intended to instill fear or to intimidate governments or societies.134 Though a terrorist act may be in pursuit of a political or ideological goal, the immediate purpose of a terrorist act is to draw attention to the terrorist's cause. Reflecting this, terrorist attacks are planned to generate the most publicity, and primarily target civil society.
I pointed out in my separate opinion in Lagman v. Medialdea that the Marawi incident was not rebellion, but a conflagration caused by a retreating armed force. To quell the conflagration, there was no need to declare martial law.
Acts of rebellion, on the other hand, are acts of armed resistance to an established government or leader as challenges to established state authority. Acts of rebellion target the state.
There may exist individuals or organizations which ultimately wish to challenge the established state authority, and who utilize acts of terrorism to draw attention to their cause, as part of their recruitment. Challenging state authority, even with violence, does not automatically constitute all of its acts of violence as acts of rebellion.
Generally, for purposes of declaring a state of martial law and suspending the privilege of the writ of habeas corpus, rebellion, as contemplated by the Constitution, cannot be defined strictly by the Revised Penal Code. The statutory definition of rebellion is merely persuasive. To require that this Court be restricted by the statutory definition of rebellion is tantamount to giving Congress the power to amend the Constitution through legislation. The Constitution does not state that martial law may be declared "in case of invasion or rebellion, which may be defined by law," or anything of similar import.
Even if we assume that Article 134 of the Revised Penal Code defines the rebellion that is constitutionally required, the facts as presented by respondent government are not enough to prove that rebellion persists to the extent required to support a declaration of martial law or the suspension of the writ of habeas corpus.
The President claims in his Letter to Congress that the New People's Army "intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure ... to seize political power ... and supplant the country's democratic form of government with Communist rule."135 Armed Forces Chief of Staff General Guerrero details this in his Letter to the President:
This year, the CTs perpetrated a total of 385 atrocities (both terrorism and guerrilla warfare) in Mindanao, which resulted in 41 KIA and 62 WIA on the part of government forces. On the part of the civilians, these atrocities resulted in the killing of 23 and the wounding of 6. The most recent was the November 9, 2017 ambush in Talakag, Bukidnon, resulting in the killing of 1 PNP personnel and wounding of 3 others as well as the killing of a four-month old infant and the wounding of 2 civilians.
Apart from these, 59 arson incidents were carried out by the NPA in Mindanao for this year, targeting businesses and private establishments that destroyed an estimated Php2.2B-worth of properties. Of these, the most significant were the April 9, 2017 attack on Lapanday Food Corporation in Davao City and the May 6, 2017 burning of facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental which resulted in PhPl.85B and PhP109M-worth of properties destroyed.136
The AFP grouped the NPA with local terrorist groups and added the "intensified" communist insurgency as a justification for the extension of martial law. To dramatize its point, the AFP cited one incident: the November 2017 ambush in Talakag Bukidnon, which left three (3) individuals wounded and claimed the lives of an infant and a PNP personnel.137 The AFP also cited the attacks of the NPA against private individuals, business establishments, and mining companies138 as well as the NPA's extortion activities.
The factual basis of the AFP, however, establishes neither an intensified communist insurgency nor the existence of rebellion sufficient to support a declaration of martial law or the suspension of the writ of habeas corpus. If at all, it proves that the communist insurgency has diminished and has refocused its efforts against extortion activities. Even with extortion activities, the numbers show a marked decline.
The NPA, on the basis of isolated criminal acts, was made to appear as a formidable organization capable of seizing power from the government. However, the assertions regarding the strength of the NP A glaringly contradict the NPA's current capabilities. The NPA was estimated to have a total of 26,000 soldiers back in the 1980s. Their numbers have significantly decreased to 4,000 in 2017.139 Current data furnished by no less than the AFP shows that as of the first semester of 2017, the numbers of the NPA in Mindanao have gone down to 1,748.140
The attacks mentioned by the AFP in its presentation were directed against private entities, not against the government. The properties the NP A burned belonged to private corporations such as Lapanday Food Corporation,141 mining companies,142 and DOLE,143 among others. It does not belong to government entities.
The extortion activities of the NPA, assuming they are related to an on-going rebellion, do not seem to have intensified. The NPA is claimed to have amassed ₱l.05 billion in 2016 from private individuals and entities but their extortion activities appeared to have declined. The AFP, however, reports that as of the first semester of 2017, the NPA has taken roughly only ₱91 million from private entities. This is a marked decline. It does not show the intensified efforts of the insurgents as alleged by the respondents.
XIII
Terrorism must not be ignored. It is a tragic and violent reality that we must address head-on. However, military rule is not the solution that will extinguish all acts of terrorism. This conclusion is replete in the relevant literature and expressed by the most experienced experts.
In Fifteen Years On, Where Are We in the "War on Terror"?, Brian Michael Jenkins, a former Green Beret who has served on the White House Commission on Aviation Safety and Security and as an advisor to the National Commission on Terrorism of the United States of America, explores the complex issues that face those addressing terrorism.
An effective understanding of the implications of terrorist events is difficult to achieve without delving deeper into the context behind the events. Numbers alone and gut reactions should not replace scrutiny. Terrorists are opportunistic. They succeed when they can manipulate and capitalize on gut reactions and imperfect knowledge.
Jenkins points out that the so-called "War on Terror" is complicated by issues such as the ambiguity of the enemy's identity, conflated by the ever-changing political environment adding to the list of enemies; society's fears of terrorism being driven and increased by news coverage; and the constant flux of world events. To gain a more accurate picture of what the acts of terrorism convey, Jenkins proposes a more global and balanced appreciation of the situation:
A thorough appreciation of the current situation requires assessing progress in different fields of action and different geographic theatres ...
. . . In some areas, counterterrorism efforts have been successful; in others, less so. And for every plus or minus entry, there is a "however". Moreover, as shown in the preceding discussion, the situation has been and continues to be dynamic.
On the plus side, our worst fears have not been realized. There have been no more 9/11s, none of the worst cases that post-9/11 extrapolations suggested. The 9/11 attacks now appear to be a statistical outlier, not a forerunner of further escalation. Terrorists have not used weapons of mass destruction, as many expected they would do. (At least they have not used them yet, many would add.) While the Islamic State appears to have recruited some chemical weapons specialists, the terrorist arsenal remains primitive, although lethal within bounds.
Contrary to the inflated rhetoric of some in government, the operational capabilities of al-Qa'ida and the Islamic State remain limited. Both enterprises are beneficiaries of fortune (they would argue, of "God's will"). They are successful opportunists. The Islamic State's military success in Syria and Iraq reflects the collapse of the government's forces, not military prowess. With its legions of foreign fighters and deep financial pockets, the Islamic State theoretically could launch a global terrorist offensive, but the surge would probably be brief. This is not, as some have suggested, World War III.
Neither al-Qa'ida nor the Islamic State has become a mass movement, although both organizations attract sympathy in Muslim countries. The vast majority of Muslims polled over the years express negative views of jihadist organizations, but a significant minority expresses favorable views of al-Qa'ida and, more recently, of the Islamic State ...
The constellation of jihadist groups is not as meaningful as it appears to be. Competing for endorsements, al-Qa'ida and the Islamic State have attracted declarations of loyalty from local groups across Africa, the Middle East, and Asia and have established a host of affiliates, provinces, and jihadist footholds. This is growth by acquisition and branding. A lot of it is public relations. Many of these groups are the products of long-standing local grievances and conflicts that would continue if there were no al-Qa'ida or Islamic State. Some are organizational assertions that represent only a handful of militants. The militants share a banner but are, for the most part, focused on local quarrels rather than a global jihad. There is no central command. There are no joint operations. The groups operate autonomously. Their connections in many cases are tenuous, although, with time, they could evolve into something more connected. The split between al-Qa'ida and the Islamic State has divided the groups. A number of them are beset by further internal divisions.
Like all terrorists, jihadis can kill, destroy, disrupt, alarm, and oblige governments to divert vast resources to secure against their attacks, but terrorists cannot translate their attacks into permanent political gain. Yet this is not the way they measure things. They tend to see their mission as continuing operations to demonstrate their commitment and awaken others.
The Islamic State is losing territory and can be defeated With coalition air support and other external assistance, government forces in Iraq and U.S.-backed Kurdish and Arab fighters in Syria have been able to retake territory held by the Islamic State. Progress is slow, though faster than many analysts initially anticipated. This is not just a military challenge; it is also an effort to put something in place to govern recovered towns and cities.
Al-Qa'ida Central's command has been reduced to exhorting others to fight. The Islamic State has made very effective use of social media to reach a broader audience. Its advertisement of atrocity as evidence of its authenticity appears to have been a magnet for marginal and psychologically disturbed individuals. Jihadist ideology has become a conveyer of individual discontents.144 (Emphasis in the original)
Jenkins makes a case for having a nuanced, information and analysis-based understanding of and approach to counter terrorism. Thus, to effectively address terrorism, a clear program for countering violent extremism (CVE) requires a multi-faced approach.
No such program was presented before Congress or this Court. The context of martial law to address public safety was inadequately provided by the government.
It is enlightening to compare this to how other countries are comprehensively addressing terrorism. Unfortunately, respondents have manifested that they preferred not to declassify and make public this government's program to counter violent extremism.
One such program belongs to the United Kingdom (UK), which faces threats from Al Qa'ida, as well as its affiliates, associated groups, and "lone-wolf' terrorists, while also facing the violence associated with Northern Ireland-related terrorism. The UK has developed and improved upon its own Counter Terrorism Strategy (CONTEST). In CONTEST the Secretary of State for the Home Department details to parliament the comprehensive strategy that the UK is adopting to counter terrorism. Through CONTEST, the messaging is clear as to what the UK's goals are and what areas across all fields must be worked on in order to keep Britain safe from terrorist attacks.
CONTEST was designed with the following principles in mind:
• Effective: we will regularly assess the progress we are making and the outcomes of this strategy;
• Proportionate: we will ensure that the resources allocated to CONTEST, and the powers that are used for counter-terrorism work are proportionate to the risks we face and necessary to reduce those risks to a level we judge is acceptable;
• Transparent: wherever possible and consistent with our security we will seek to make more information available about the threats we face, the options we have and the response we have decided on;
. . . .
• Flexible: terrorists will seek new tactics to exploit vulnerabilities in our protective security; we will regularly re-assess the risks we face and ensure that risk assessment is the foundation of our work;
• Collaborative: countering terrorism requires a local, national and international response. We will continue to work with foreign governments, the private sector, non-governmental organisations and the public; and
• Value for money: to deliver a counter-terrorism that is sustainable over the long term we will try to reduce costs while we maintain our core capabilities.145
Further, the UK's CONTEST is organized around four (4) areas of activity, namely, "Pursue," "Prevent," "Protect," and "Prepare."146
Pursue is concerned with stopping terrorist attacks within the UK and against UK interests worldwide. This involves the early detection, investigation, and disruption of terrorist activity before it poses a danger to the public.147 Among the planned Pursue activities are a continued assessment of counter-terrorism powers to ensure they are both effective and proportionate; an improvement of the ability to prosecute and deport people for terrorist-related offenses; an increase of capabilities to detect, investigate, and disrupt terrorist threats; the improvement of the ability to handle sensitive and secret materials during judicial proceedings to promote justice and national security; and to enable the UK to better tackle threats at their source by working with other countries as well as multilateral organizations.148
Prevent aims to stop people from supporting terrorism, or becoming terrorists themselves.149 It is recognized as a key part of CONTEST. The primary objectives of the UK in relation to Prevent are to:
• Respond to the ideological challenge of terrorism and the threat we face from those who promote it;
• Prevent people from being drawn into terrorism and ensure that they are given appropriate advice and support; and
• Work with a wide range of sectors (including education, criminal justice, faith, charities, the internet and health) where there are risks of radicalisation which we need to address.150
Protect is intended to strengthen the UK's protection against a terrorist attack within the country, or against its interests abroad. CONTEST recognizes that priorities under Protect must be informed by an assessment of facts: what the terrorists are trying to do, what their targets may be, and the vulnerabilities in said targets.151 The government's objectives in relation to Protect are to:
• Strengthen UK border security;
• Reduce the vulnerability of the transport network;
• Increase the resilience of the UK's infrastructure; and
• Improve protective security for crowded places.152
Prepare is intended to mitigate the impact of terrorist attacks that cannot be stopped.153 Among the government's objectives here are to:
• Continue to build generic capabilities to respond to and recover from a wide range of terrorist and other civil emergencies;
• Improve preparedness for the highest impact risks in the National RiskAssessment;
• Improve the ability of the emergency services to work together during a terrorist attack; and
• Enhance communications and information sharing for terrorist attacks.154
The foregoing objectives reflect the UK government's recognition, that it is essential to have a strategy that is both effective and proportionate, more focused and more precise, "which uses powers selectively, carefully and in a way that is as sparing as possible."155
XIV
The government's presentation contained no sophistication in relation to how martial law, as generally conceived, can contribute to addressing the different types of violence it sought to address. They were not required by Congress or by the majority of this Court. Representing the government, the Solicitor General insisted through manifestations to even keep the program to counter violent extremism confidential and unavailable to the petitioners and the public.
We cannot remain so woefully uninformed that they will believe that a mere declaration and its psychological advantage is enough.
Again, there is enough publicly available literature that can inform us on the complexity of the problem.
For example, lessons on how individuals are recruited and radicalized may also be taken from the Institute for Policy Analysis of Conflict (IPAC). IPAC was founded on the premise that violent conflict cannot be prevented without accurate analysis.
Its report analyzing the custodial debriefings of seven (7) individuals arrested in relation to the Davao bombing of September 2016 is instructive.
The report reveals the cell group responsible for the Davao bombing consisted of a core group of friends who brought others into the fold, and that two (2) men were instrumental in the cell's formation.
One of them, Fakhrudin Dilangalen, was an Islamic teacher who had already been involved in pro-ISIS activities as early as 2014. The other was the cell's leader, T.J. Macabalang, a businessman who had become fascinated by the establishment ofa caliphate in 2014.156
Fakhrudin was a regular speaker after sunset prayers in a mosque in Sousa, Cotabato, who organized the young male attendees of his discussions into a cell and who sent small groups of these young men to train with AKP. Many of these young men were university students. T .J. Macabalang, on the other hand, was a motorcycle shop-owner with a drag racing club, who took up information technology at the University of Visayas in Cebu. In 2014, having become fascinated by the establishment of a caliphate, and having become committed to ISIS through his exploration of ISIS online, he reached out to Fakhrudin. In January, 2015, Fakhrudin invited T.J. in his home in Cotabato, and they proceeded with fifteen (15) others to the AKP camp in Butril, Palimbang, where most of them underwent a 40-day military training course. However, in December, 2015, Fakhrudin told T.J. he was breaking with AKP and its commander over a variance of views.
In January 2016, T.J. and Fakhrudin met Abdullah Maute in Butig, Lanao del Sur, and subsequently, Fakhrudin moved to Butig to join the Maute group. With Fakhrudin gone, T.J. replaced him as amir of the Cotabato cell.
Members of T.J.'s drag racing club joined, and they likewise brought others into the group. At the time of the Davao bombing, the cell had around thirty (30) members, despite the fact that T.J. did not have substantial religious knowledge.157
Noting that the key to radicalization in this instance was not poverty, and noting further that basic data-gathering from detainees has not yet been done by Philippine authorities, this IP AC report proposes that the following steps be taken to provide a basis for an effective counter-radicalization program:
• A mapping of university-based recruitment into extremist based both on detainee data as well as research in tertiary institutions by researchers who understand the distinctions among different streams of Islam.
• A compilation of the narratives used to draw recruits into pro-ISIS activity, both in religious study discussions as well as during military training.
• A systematic focus on cities other than Cotabato where radical cells were known to be active, using detainee information to try and draw a more complete picture of how these cells worked. We know, for example, that the organization initially known as Khilafah Islamiyah Mindanao (KIM) was founded in Cagayan de Oro by a man who became part of Maute's inner circle in Marawi, Ustadz Humam Abdul Najid alias Owayda (also known as Wai). Mapping the connections in Cagayan and understanding Owayda's role there remain essential.
• A mapping of mosques known to have hosted discussions with pro-ISIS preachers. The Salaf mosque in Cotabato is one example but there will surely be many others. Local ulama councils may want to work out a mechanism by which they can share information about known extremists to try and prevent mosques and other institutions from being recruitment centers.
• A detailed understanding of the role of women and why and through whom women became involved as financiers, propagandists and combatants.158
In the context of these insights, a general declaration of martial law without specifying the types of powers that will be exercised different from ordinary law enforcement action appears simplistic. The factual basis, apart from being too generalized, unsupported by evidence and incoherent, simply is not sufficient to support the finding that the declaration of martial law and the suspension of the privilege of the writ is needed to address the kind of danger to public safety that is existing in various parts of Mindanao.
XV
This was because the deliberations in Congress did not provide for any reasonable space for democratic deliberation.
As a general rule, this Court will not interfere with the proceedings of Congress. In Baguilat, Jr. v. Alvarez,159 this Court recognized Congress' sole authority to promulgate rules to govern its proceedings. However, this is not equivalent to an unfettered license to disregard its own rules. Further, the promulgated rules must not violate fundamental rights.
As loathe as this Court is to examine the internal workings of a coequal branch of government, there are circumstances where this Court's constitutional duty needs such examination.
In Baguilat, I stressed the need for this Court to fulfill its duty to uphold the Constitution even if it involves inquiring into the proceedings of a co-equal branch. I pointed out the danger in refusing this duty, where the proceedings are designed to stifle dissent:
Caution must be exercised in having a complete hands-off approach on matters involving grave abuse of discretion of a co-equal branch. This Court has come a long way from our pronouncements in Mabanag v. Vito.
In Mabanag, the Congress voted on the "Resolution of Both Houses Proposing an Amendment to the [1935] Constitution of the Philippines to be Appended as an Ordinance Thereto." The Resolution proposed to amend the 1935 Constitution to give way for the American parity rights provision, which granted United States citizens equal rights with Filipinos in the exploitation of our country's natural resources and the operation of public utilities, contrary to Articles XIII and XIV of the 1935 Philippine Constitution.
Article XV, Section 1 of the 1935 Constitution required the affirmative votes of three-fourths (3/4) of all members of the Senate and the House, voting separately, before a proposed constitutional amendment could be submitted to the people for approval or disapproval. The Senate was then composed of 24 members while the House had 98 members. Two (2) House representatives later resigned, leaving the House membership with only 96 representatives. Following the Constitutional mandate, the required votes to pass the Resolution were 18 Senators and 72 Representatives.
The Senate suspended three (3) Senators from the Nacionalista Party, namely, Ramon Diokno, Jose 0. Vera, and Jose E. Romero, for alleged irregularity in their elections. Meanwhile, the House also excluded eight (8) representatives from taking their seats. Although these eight (8) representatives were not formally suspended, the House nevertheless excluded them from participating for the same reason. Due to the suspension of the Senators and Representatives, only 16 out of the required 18 Senators and 68 out of the 72 Representatives voted in favor of the Resolution.
Mabanag recognized that had the excluded members of Congress been allowed to vote, then the parity amendment that gave the Americans rights to our natural resources, which this Court ruled impacted on our sovereignty, would not have been enacted.
Nevertheless, the absence of the necessary votes of three-fourths (3/4) of either branch of Congress, voting separately, did not prevent Congress from passing the Resolution. Petitioners thus assailed the Resolution for being unconstitutional. This Court, ruling under the 1935 Constitution upheld the enactment despite the patent violation of Article XV, Section 1.
Mabanag ruled that Congress in joint session already certified that both Houses adopted the Resolution, which was already an enrolled bill. Thus, this Court had no more power to review as it was a political question:
In view of the foregoing considerations, we deem it unnecessary to decide the question of whether the senators and representatives who were ignored in the computation of the necessary three-fourths vote were members of Congress within the meaning of Section 1 of Article XV of the Philippine Constitution.
Justice Perfecto's dissent, however, considered the matter a constitutional question - that is to say, deciding whether respondents violated the requirements of Article XV of the 1935 Constitution was within this Court's jurisdiction.
Subsequent rulings have since delimited and clarified the political question doctrine, especially under the 1987 Constitution. It bears stressing that Article VIII, Section 1 explicitly grants this Court the power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."
We cannot again shy away from this constitutional mandate.
The rule of law must still prevail in curbing any attempt to suppress the minority and eliminate dissent.
In Estrada v. Desierto:
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this [C]ourt not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. (Emphasis supplied)
Any attempt by the dominant to silence dissent and take over an entire institution finds no room under the 1987 Constitution. Parliamentary practice and the Rules of the House of Representatives cannot be overruled in favor of personal agenda.
It is understandable for the majority in any deliberative body to push their advantages to the consternation of the minority. However, in a representative democracy marked with opportunities for deliberation, the complete annihilation of any dissenting voice, no matter how reasonable, is a prelude to many forms of authoritarianism. While politics speaks in numbers, many among our citizens can only hope that those political numbers are the result of mature discernment. Maturity in politics is marked by a courageous attitude to be open to the genuine opposition, who will aggressively point out the weaknesses of the administration, in an orderly fashion, within parliamentary forums. After all, if the true interest of the public is in mind, even the administration will benefit by criticism.160
In this case, the rules of the Joint Session of Congress161 appear to have been designed to stifle discourse and genuine inquiry into the sufficiency of factual basis for the extension of martial law. They give a member of Congress no more than three (3) minutes to interpellate resource persons during the Joint Session:
RULE V
CONSIDERATION OF THE LETTER OF THE PRESIDENT DATED DECEMBER 8, 2017 CALLING UPON 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) YEAR, FROM 01JANUARY2018 TO 31 DECEMBER 2018, OR FOR SUCH OTHER PERIOD OF TIME AS THE CONGRESS MAY DETERMINE, IN ACCORDANCE WITH SECTION 18, ARTICLE VII OF THE 1987 PHILIPPINE CONSTITUTION"
SEC. 6. The relevant agencies of the Executive Department ·shall report to the Joint Session on the factual basis of the letter of the President calling upon Congress to further extend the period of Proclamation No. 216, Series of2017.
SEC. 7. Any member of Congress may interpellate the resource persons for not more than three (3) minutes excluding the time of the answer of the resource persons.
During the oral arguments, petitioner Lagman provided some detail as to how Congress performed its inquiry into the factual basis for the extension of martial law. Not only were the members of Congress given an inadequate three (3) minutes to interpellate resource persons during the Joint Session, but they were also only provided with three (3) letters as basis for their vote. Although the three (3) letters contained some factual allegations, no basis for the factual allegations was provided to the members of Congress during their Joint Session:
JUSTICE LEONEN:
. . . .
Congressman Lagman, I am sure that you were given the operational orders or the OPORD while you were conducting the congressional hearings that you were given the OPORD, the Operational Directive of the Chief of Staff to the Service Command for the extension of Martial Law, is that not correct?
CONGRESSMAN LAGMAN:
Well, we were given the letter of the President ...
JUSTICE LEONEN:
I'm sorry Congressman Lagman. So, the only thing given to you as Congressmen was the letter of the President.
CONGRESSMAN LAGMAN:
With the annexes of the recommendation both of the Secretary of National Defense and the ...
JUSTICE LEONEN:
Let me get this right. So, the Congress decided on the basis of a letter of the President, the annex was the letter of the Chief of Staff and the
. . .
CONGRESSMAN LAGMAN:
And also of the Secretary of National Defense.
JUSTICE LEONEN:
In other words, was there intelligence information given to each member of the House and the Senate when they reviewed the factual basis of the assertions in the letter?
CONGRESSMAN LAGMAN:
There was a briefing before we had the joint session but definitely no confidential information was given to the members.
JUSTICE LEONEN:
The briefing was in power point, correct?
CONGRESSMAN LAGMAN:
No, Your Honor ...
JUSTICE LEONEN:
So, it was just ...
CONGRESSMAN LAGMAN:
That was before, wala ....
JUSTICE LEONEN:
So, let me again go back. So, Congress relied on a briefing but was not given materials when it actually voted for the extension of Martial Law in the entirety of Mindanao for one year. You were relying on the letter of the President, the letter of the SND, the letter of the Chief of Staff, and the words that were given only during the briefing, am I not correct?
CONGRESSMAN LAGMAN:
Those were the only documents in the briefing conducted but during the joint session, we were allowed to make some interpellation and inquiries on the Executive Panel but it was very limited. We were only given three minutes.
JUSTICE LEONEN:
Three minutes.
CONGRESSMAN LAGMAN:
Three minutes.162
This account was described further by petitioners Lagman, et al. m their Memorandum and unrefuted by the respondents:
11. Petitioner Lagman was present during the entire joint session of the Congress on December 13, 2017 when the request of the President for a yearlong extension of martial law and the suspension of the writ in Mindanao was summarily granted by the Congress. He is absolutely certain there was no PowerPoint presentation made by the resource persons from the military and police establishments and executive department during the joint session.
12. He was also present during the all-Member caucus of the House of Representatives held in the afternoon of December 12, 2017 when the military and police establishments briefed the Members of the House of Representatives on the security situation in Mindanao. There was a PowerPoint presentation made principally by General Alex Monteagudo, the Chief of the National Intelligence Coordinating Agency (NICA). But the caucus was not the body charged with approving the extension.
13. The PowerPoint presentation, which included the assessment/conclusions of the military-police establishment, was not substantiated by independent hard data and validated accounts. It was bereft of verified and verifiable basis. It was not supported by documentary evidence. Verily, the PowerPoint presentation lacks the disclosure of the factual data on which it was based.
14. When sensitive questions were asked, the usual answer was that they involved classified information which are confidential in nature and any disclosure may endanger national security.
15. It was during his briefing that General Monteagudo said that "Marawi is only the tip of the iceberg", an understatement to justify alleged looming bigger terrorist threats and attacks. This estimation was not backed up with facts.
. . . .
19. It is false for the Solicitor General to claim that Petitioner Lagman was absent in either or both the briefing and joint session.163
The foregoing account exposes a failure on the part of Congress to look into the factual basis for extending the proclamation of martial law. Not only that, but the limitation of three (3) minutes to interpellate resource persons during the Joint Session suggests an intention to suppress any inquiry into the factual premise for the extension of martial law.
The discussion of Congress was crammed in one (1) day towards the end of a Congressional session. This was due to the belated request for extension communicate by President.164
By passing and enforcing the joint rules, Congress shirked its own constitutionally mandated duty to determine, first, whether the actual rebellion persists and, second, whether public safety requires the extension of martial law on account of the persisting actual rebellion. The rules provided by Congress ensured that those members who wished to perform their roles and inquire as to the facts were prevented from doing so. Time for deliberation and reconsideration by their colleagues were clearly curtailed.
Congress' deliberations, or manifest lack thereof, should be enough to encourage this Court to approach this case with more rigor and less deference. The Congress could have been more critical and analytical in its review of the facts presented through PowerPoint presentations.
XVI
The majority in this Court presents its decision in the context of a choice between terrorism and rebellion on the one hand and martial law on the other. This is a false dichotomy.
There are peace and order problems in Mindanao. Indeed, these are to be addressed convincingly and decisively with law enforcement and with a strategic program to counter violent extremism. Terrorism and isolated acts of rebellion require comprehensive solutions that sincerely addresses the causes of the emergence of radical ideologies hand in hand with military and police actions to disrupt and suppress violence. Martial law is not the only option.
To label the law enforcement problems in Mindanao simplistically as rebellion in order to grant a carte blanche authority for the President under the rubric of martial law is dangerous sophistry.
Accepting the allegations of the government, without any effort to determine its quality in terms of the evidence supporting it and to examine its logic in its entirety, amounts to a failure to do our constitutional duty to examine not only grave abuse of discretion but the factual sufficiency of the exercise of extraordinary Commander-in-Chief powers. To be blind to the kind of deliberation that was done in Congress is to fail our covenant with the sovereign Filipino people.
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.
Regardless of the motives of the justices then, it was a Court that was complicit to the suffering or 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.1âшphi1 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.
This is far from the oath to the Constitution that I have taken. I, therefore, dissent.
ACCORDINGLY, in view of the foregoing, I vote to grant the Petitions and declare the President's request for extension of the period covered by Proclamation No. 216 series of 2017 and Congress' Resolution of Both Houses No. 4 issued on December 13, 2017 as unconstitutional.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1 As quoted in SUSAN L. CARRUTHERS, THE MEDIA AT WAR 82 (2nd ed., 2011).
2 As quoted in JOHN R. SULER, PSYCHOLOGY OF THE DIGITAL AGE: HUMANS BECOME ELECTRIC 358 (2016).
3 G.R. No. 231658, July 4, 2017 <http://sc.judiciary.gov .ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658.pdf.> [Per J. Del Castillo, En Banc].
4 Respondent's Memorandum, p. 2.
5 Respondent's Memorandum, Annex D.
6 Lagman Petition, Annex B.
7 Lagman Petition, Annex C.
8 Lagman Petition, Annex C-1.
9 Lagman Petition, Annex C-2.
10 Lagman Petition, Annex C.
11 Representative Lagman's Memorandum, Annex G.
12 CONST., Art., VII, sec. 18.
13 Representative Lagman's Memorandum, Annex G. Rule V, Section 6, Rules of the Joint Session of Congress on the Call of the President to Further Extend the Period of Proclamation No. 216, Series of 217.
14 Representative Lagman's Memorandum, Annex G. Rule V, Section 7, Rules of the Joint Session of Congress on the Call of the President to Further Extend the Period of Proclamation No. 216, Series of 217.
15 TSN dated January 16, 2018, pp. 58-60.
16 Lagman v. Pimentel III, docketed as G.R. No. 235935; Cu/lamat v. Duterte, docketed as G.R. No. 236061, Rosales v. Duterte, docketed as G.R. No. 236145; and Monsod v. Pimentel Ill, docketed as G.R. No. 236155.
17 TSN, January 17, 2018, p. 51.
18 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.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
19 CONST., art. VIII, sec. 1 provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
20 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov .ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658. pdf> [Per J. Del Castillo, En Banc].
21 MALOLOS CONST., Art. 65.
22 MALOLOS CONST., Art. 71.
23 MALOLOS CONST., Art. 79.
24 MALOLOS CONST., Art. 77.
25 Phil. Bill of 1902, sec. 5.
26 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017/23 l 658.pdf> [Per J. Del Castillo, En Banc].
27 Phil. Autonomy Act, sec. 21.
28 Phi. Autonomy Act, sec. 21.
29 1935 CONST., sec. 10, par. 2.
30 91 Phil. 882 (1952) [Per J. Bengzon, En Banc].
31 Id. at 887.
32 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658.pdf> [Per J. Del Castillo, En Banc].
33 Lansangv. Garcia, 149 Phil. 547, 586 (1971) [Per J. Concepcion, En Banc).
34 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov .ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658.pdf> [Per J. Del Castillo, En Banc].
35 158-A Phil. I (1974) [Per CJ. Makalintal, En Banc].
36 206 Phil. 392 (1983) [Per J. De Castro, En Banc].
37 Id. at 431-432.
38 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017/231658.pdt> [Per J. Del Castillo, En Banc].
39 684 Phil. 526 (2012) [Per J. Abad, En Banc].
40 Id. at 557.
41 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017 /july2017 /231658.pdf> 20 [Per J. Del Castillo, En Banc].
42 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017/231658.pdf> 19 [Per J. Del Castillo, En Banc].
43 Id.
44 Id. at 20.
45 Id. at 11.
46 J.V. Capua, The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right, 36 CAMBRIDGE L.J. 152 (1977).
47 327 U.S. 304 (1946) [Per J. Black].
48 C.J. Stone, Concurring Opinion in Duncan v. Kahanamoku, 327 U.S. 304. 355 (1946) [Per. J. Black] citing Luther v. Borden, 48 U.S. 1 (1849) [Per J. Taney].
49 Ex Parle Milligan, 71 U.S. (4 Wall.) 2-142 (1866) [Per J. Davis]
50 Id. at 127.
51 PRESIDENTIAL MUSEUM AND LIBRARY, Evolution of the Revolution, <http://malacanang.gov.ph/7824- evolution-of-the-revolution/> (last accessed on June 22, 2017).
52 Ambeth Ocampo, Martial Law in 1896, PHILIPPINE DAILY INQUIRER, December 18, 2009, <https://www.pressreader.com/philippines/philippine-daily-inquirer/20091218/283180079571432> (last accessed June 22, 2017).
53 Id.
54 Proc. No. 29 (1944).
55 Id.
56 Proc. No. 30 (1944).
57 PRESIDENTIAL MUSEUM AND LIBRARY, Dr. Jose P. Laurel as President of the Second Philippine Republic, <http://malacanang.gov.ph/5237-dr-jose-p-laurel-as-president-of-the-second-philippinerepublic/#_ edn7> (last accessed July 3, 2017).
58 Proc. No. 30 (1944).
59 Proc. No. l 081 (1972).
60 J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, <http://sc.judiciary.gov .ph/pdf/web/viewer .htm l?file=/jurisprudence/2017/july2017 /23165 8.pdt> [Per J. Del Castillo, En Banc].
61 Id. at 32-35.
62 Lagman Petition, Annex C, p. 2.
63 Id.
64 Id. at 5.
65 TSN dated January 17, 2018, p.68.
66 TSN dated January 17, 2018, pp. 86-96.
67 TSN dated January 17, 2018, pp. 141-142.
68 RULES OF COURT, Rule 8, sec. 1.
69 281Phil.487-508 (1991) [Per J. Padilla, En Banc].
70 Id. at 495-496.
71 Lagasca v. De Vera, 79 Phil. 376-381 (1947) [Per J. Perfecto, First Division].
72 People v. Dunig y Rodriguez, 289 Phil. 949-956 (1992) [Per J. Cruz, First Division].
73 Joaquin v. Navarro, 99 Phil. 367-373 (1956) [Per J. Padilla, En Banc].
74 People v. Mamalias, 385 Phil. 499-514 (2000) [Per J. Puno, First Division].
75 People v. Balanon, 304 Phil. 79-87 (1994) [Per J. Bellosillo, First Division].
76 G .R. No. 214064, February 6, 2017 <sc,judiciary.gov.ph?pdf?web?viewer.html?file=jurisprudence/2017 /214064.pdf> [Per J. Peralta, Second Division].
77 Id. at 7.
78 722 Phil. 743-763 (2013) [Per J. Brion, Second Division].
79 543 Phil. 436-483 (2007) [Per J. Chico-Nazario, Third Division].
80 699 Phil. 205-235 (2012) [Per J. Velasco, Third Division].
81 317 Phil. 897 (1995) [Per J. Regalado, Second Division].
82 Dissenting Opinion of J. Leanen in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017 /july2017 /231658 leonen.pdf > 54-55 [Per J. Del Castillo, En Banc].
83 Id.
84 Id. at 56.
85 TSN dated January 16, 2018, pp. 61-64.
86 Monsod Petition, p. 13.
87 Rosales Petition, Annex E, p. 2.
88 Lagman Petition, Annec C-2, p. 2.
89 Rosales Petition, Annex E, pp. 2-3.
90 Lagman Petition, Annex C-1, p. 2.
91 Martial Law Extension Briefing Powerpoint Presentation, slide 16.
92 Martial Law Extension Briefing Powerpoint Presentation, slide 38.
93 Martial Law Extension Briefing Powerpoint Presentation, slide 57.
94 Martial Law Extension Briefing Powerpoint Presentation, slide 59.
95 Martial Law Extension Briefing Powerpoint Presentation, slide 60.
96 Martial Law Extension Briefing Powerpoint Presentation, slide 48.
97 Lagman Petition, Annex C-2, p. 3.
98 Martial Law Extension Briefing Powerpoint Presentation, slide 18.
99 Martial Law Extension Briefing Powerpoint Presentation, slide 34.
100 Martial Law Extension Briefing Powerpoint Presentation, slide 34.
101 Lagman Petition, Annex C-2, p. 4.
102 See OSG Annex in Lagman v. Medialdea, Significant Atrocities in Mindanao Prior to the Marawi City Incident.
103 See Dissenting Opinion of J. Leonen in Lagman v. Medialdea, G.R. No. 231648, July 4, 2017 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658 leonen.pdf >[Per J. Del Castillo, En Banc].
104 Martial Law Extension Briefing Powerpoint Presentation, slide 33. The slide shows a total membership of 185 individuals as of December 2017. However, the membership of local terror groups are only 137, the remaining 48 are accounted for as foreign terrorist fighters.
105 Martial Law Extension Briefing Powerpoint Presentation, slide 32.
106 See Dissenting Opinion of J. Leonen in Lagman v. Medialdea, G.R. No. 231648, July 4, 2017 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july2017 /231658 leonen.pdf > 75-76 [Per J. Del Castillo, En Banc].
107 Martial Law Extension Briefing Powerpoint Presentation, slide 26-28.
108 Martial Law Extension Briefing Powerpoint Presentation, slide 21. The original states, "both factions still reinforces each other."
109 TSN dated January 17, 2018, p. 56.
110 Martial Law Extension Briefing Powerpoint Presentation, slide 48.
111 Martial Law Extension Briefing Powerpoint Presentation, slide. 46.
112 Martial Law Extension Briefing Powerpoint Presentation, slide 34-36.
113 See Dissenting Opinion of J. Leonen in Lagman v. Medialde a, G.R. No. 231648, July 4, 2017 < http://sc.judiciary.gov. ph/pdf/web/viewer .html?file=/jurisprudence/2017/july2017 /231658 leonen.pdf > 76 [Per J. Del Castillo, En Banc].
114 Id. at 74.
115 Id. at 75.
116 Rosales Petition, Annex E, p. 3.
117 Martial Law Extension Briefing Powerpoint Presentation, slide 23.
118 Martial Law Extension Briefing Powerpoint Presentation, slide 25.
119 Martial Law Extension Briefing Powerpoint Presentation, slide 32.
120 Martial Law Extension Briefing Powerpoint Presentation, slide 58.
121 Rosales Petition, Annex E, p. 5.
122 TSN dated January 17, 2018, p. 69.
123 Proc. No. 216 (2017).
124 Proc. No. 216 (2017).
125 See OSG Memorandum in Lagman v. Medialdea, pp. 5-8.
126 TSN dated January 17, 2018, pp. 225-226.
127 Rosales Petition, Annex D.
128 Id. at 2-3.
129 Id. at 3.
130 Rosales Petition, Annex E, pp. 4-5.
131 TSN dated January 17, 2018, pp. 190-194.
132 Id. at 225-226.
133 TSN dated January 16, 2018, pp. 70-71.
134 United States Department of Defense, DOD Dictionary of Military and Associated Terms, 238, June 2017 <http://www.dtic.mil/doctrine/new _pubs/dictionary.pdf> (last accessed Feb 6, 2018).
135 Lagman Petition, Annex C, p. 4.
136 Lagman Petition, Annex C-2, p. 3.
137 Martial Law Extension Briefing Powerpoint Presentation, slide 63.
138 Martial Law Extension Briefing Powerpoint Presentation, slide 62-71.
139 Cullamat Petition, p. 19 citing National Security Policy, 2017-2022 National Security Policy for Change and Well-Being of the Filipino People, <http://www.nsc.gov.ph/attachments/article/NSP/NSP- 2017-2022.pdf> (last visited February 7, 2018)
140 Martial Law Extension Briefing Powerpoint Presentation, slide 61.
141 Martial Law Extension Briefing Powerpoint Presentation, slide 66.
142 Martial Law Extension Briefing Powerpoint Presentation, slide 66, 70-71.
143 Martial Law Extension Briefing Powerpoint Presentation, slide 69.
144 Brian Michael Jenkins, Fifteen Years On, Where are We in the "War on Terror"?, 9 CTC SENTINEL 7, 10-11 (September, 2016).
145 CONTEST: The United Kingdom's Strategy for Countering Terrorism, pp. 40-42.
146 Id. at 40.
147 Id. at 45.
148 Id.
149 Id. at 40.
150 Id. at 59-60.
151 Id. at 80.
152 Id. at 82.
153 Id. at 93.
154 Id. at 93-94.
155 Id. at. 119.
156 41 INSTITUTE FOR POLICY ANALYSIS OF CONFLICT, POST-MARAWI LESSONS FROM DETAINED EXTREMISTS IN THE PHILIPPINES 3 (2017).
157 Id. at 4.
158 Id. at 10-11.
159 G .R. No. 227757, July 25, 2017, <http://sc.judiciary.gov.ph/pdf/web/viewer.htrnl?file=/jurisprudence/2017/july2017 /227757 .pdf > [Per J. Perlas-Bernabe, En Banc].
160 Dissenting Opinion of J. Leonen in Baguilat v. Alvarez, G.R. No. 227757, July 25, 2017 < http://sc.judiciary.gov .ph/pdf/web/viewer .html?file=/jurisprudence/2017/july2017 /2277 57 leonen.pdf > 36-39 [Per J. Perlas-Bernabe, En Banc]
161 Memorandum by Representative Lagman, Annex G.
162 TSN dated January 16, 2018, pp. 58-60.
163 Memorandum by Representative Lagman, pp. 5-6.
164 TSN dated January 16, 2018, p. 27.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
JARDELEZA, J.:
In my Separate Opinion1 in Lagman v. Medialdea,2 I advanced the following views: (1) that a case filed under Section 18, Article VII of the Constitution is sui generis; (2) determination of the sufficiency of the factual basis is distinct from ascertaining whether there is grave abuse of discretion; (3) the standard of review for a proceeding under Section 18, Article VII should be reasonableness; and (4) the Government's presentation of evidence should, in the first instance, be conducted publicly and in open court.3 After examining the evidence then presented before us, I found "nothing incredulous or far-fetched" about the Government's claims which, I also noted, were "not incompatible with local and foreign media reports and publicly available legal research." Thus, I concluded that there was an actual rebellion and the threat to public safety necessitated the President's declaration of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao.
The Court's jurisdiction under Section 18, Article VII is again invoked, this time to determine the sufficiency of the factual basis for the extension of the President's declaration. If upheld, martial law will continue to be implemented and the privilege of the writ of habeas corpus suspended in the whole of Mindanao until December 31, 2018. The ponencia finds that there is sufficient factual basis for the extension.
I dissent and write this Opinion to explain my conclusion.
I
Section 18, Article VII of the Constitution provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied.)
The text of the Constitution is clear. Two conditions must concur before a President can suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law: (1) actual rebellion or invasion; and (2) when public safety requires it. Much has been said about the concept of rebellion within the meaning of Section 18, Article VII. I myself have advanced views on this matter.4 My present analysis is concerned not so much with the issue as to the existence of an actual rebellion as used under Section 18. In fact, given the facts and my proposed definition of rebellion within the meaning of Section 18,5 which is simply armed public resistance to the government, I find the Government's claim that actual rebellion is continuously being waged in Mindanao to be not unreasonable.
I have very grave concerns, however, with the suggestion that the existence or persistence of a rebellion per se necessarily endangers public safety for purposes of Section 18, Article VII. According to the Government:
84. Since Cullamat, et al. admit the existence of rebellion in Mindanao, they cannot begrudge the Congress from agreeing to the extension of the proclamation and suspension in the interest of public safety. The danger posed by rebellion on public safety cannot be discounted. The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. xx x6
Otherwise stated, the Government's proposition is that since a rebellion, by definition, is carried out by a "vast movement of men," any rebellion, regardless of scale, may call for an exercise by the President of his extraordinary powers. I strongly disagree.
II
It is my view that the second requirement of "when public safety requires it" introduced a level of scale as to qualify the first requirement of the existence of an actual rebellion or invasion. "Scale" is defined as "the relative size or extent of something."7 It is synonymous with "scope, magnitude, dimensions, range, breadth, compass, degree, reach, spread, sweep."8 The public safety requirement under Section 18, Article VII operates to limit the exercise of the President's extraordinary powers only to rebellions or invasions of a certain scale as to sufficiently threaten public safety. This conclusion, I find, is supported by: (a) the deliberations of the Constitutional Commission; (b) our law and jurisprudence on the concept of public safety as used in specific relation to the exercise of government powers which result in an impainnent of civil rights; and (c) the experience of the Court both in this case and in Lagman v. Medialdea where it upheld the President's original declaration of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao.
A
Deliberations of the Constitutional Commission
A careful reading of the deliberations of the Constitutional Commission would clearly show that there was no intention to interpret the public safety requirement simply as a foregone consequence of the existence of the first requirement, i.e., actual rebellion or invasion. Rather, it seems that the intention was to qualify the first requirement such that not all cases of rebellion or invasion can be considered sufficient for purposes of the exercise of the President's extraordinary powers:
MR. DELOS REYES: As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident everybody knows what happened. Would the Committee consider that an act of rebellion?
MR. REGALADO: If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article 135. I am not trying to pose as an expert about this rebellion that took place in the Manila Hotel, because what I know about it is what I only read in the papers. I do not know whether we can consider that there was really an armed public uprising. Frankly, I have my doubts on that because we were not
privy to the investigations conducted there.
Commissioner Bernas would like to add something.
FR. BERNAS: Besides, it is not enough that there is actual rebellion. Even if we will suppose for instance that the Manila Hotel incident was an actual rebellion, that by itself would not justify the imposition of martial law or the suspension of the privilege of the writ because the Constitution further says: "when the public safety requires it." So, even if there is a rebellion but the rebellion can be handled and public safety can be protected without imposing martial law or suspending the privilege of the writ, the President need not. Therefore, even if we consider that a rebellion, clearly, it was something which did not call for imposition of martial law.9 (Emphasis and underscoring supplied.)
The following exchange between Commissioners Jose N. Nolledo and Crispino M. De Castro further clarified that while the President can call out the armed forces to address actual rebellion or invasion, it is only when the situation has posed a severe enough threat to public safety is he empowered to resort to his extraordinary powers of declaring martial law or suspending the privilege of the writ of habeas corpus:
MR. NOLLEDO: xx x
Does Commissioner de Castro agree with me that the President need not declare martial law or suspend the privilege of the writ of habeas corpus if there is actual invasion [or] rebellion because he is authorized under Section 15 of the committee report to call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion?
MR. DE CASTRO: We are talking of the next sentence with the words "in case of invasion or rebellion." This becomes a useless sentence. In fact, the questions of Honorable Suarez and the statements of Honorable Ople do not fall on these two situations.
MR. NOLLEDO: No, the first sentence is very material because if there is an invasion, the President can immediately call upon the Armed Forces.
xxx
MR. DE CASTRO: That is why I said in case of actual invasion or actual rebellion. [T]he President will have no more time to say "I declare martial law." He will just order the Armed Forces to go there and repel the enemy.
MR. NOLLEDO: Madam President, the argument of Commissioner de Castro seems to indicate that the President is powerless without declaring martial law. The first sentence is very clear, that in case of lawless violence, invasion or rebellion, the President may immediately call the Armed Forces to prevent or suppress the same. And it is only when public safety requires it that the President may decide to declare martial law or suspend the privilege of the writ of habeas corpus. So, I would like to correct the impression that the President has no power to meet the invasion or rebellion without declaration of martial law.
xxx
MR. GARCIA: x x x
I also would like to remind ourselves that very often the doctrine of national security is given as a reason to impose extraordinary measures which, once begun, leads to many other violations. I believe this is something that we must guard against from the very beginning.10 (Emphasis and underscoring supplied.)
Mere invocations of issues of national security and public safety, without more, are not enough. The Constitution requires that there is sufficient factual basis to show not only that actual rebellion or invasion exists, but that the situation has reached such scale as to threaten public safety.
B
Public safety in Philippine law and jurisprudence
There is no one concept of public safety in Philippine law and jurisprudence, but attempts have been made to arrive at accepted meanings of the term. Public safety, for example, has been interpreted to be "synonymous" with the concept of "national security" and "security of the state,"11 but narrower than those matters falling under the concept of "interest of the state."12 On the other hand, dangers to public safety have been held to include traffic congestion;13 hazards of traffic in the evening;14 business establishments which give rise to conflagrations and explosions;15 open canals, manholes, live wires and other similar hazards to life and property;16 presence of motorcycles in toll ways;17 billboards and signages in times of typhoons;18 unrestricted right to travel of court employees;19 and the failure of railroad companies to install, maintain and repair safety equipment and signages.20
For purposes of my analysis of "when public safety requires" within the meaning of Section 18, Article VII, however, I find that the interpretation of "public safety" in relation to the impairment of the liberty of travel21 to be most proximate/appropriate in that both involve the derogation of civil rights to give way to a "higher" state interest.
In interpreting whether then President Corazon C. Aquino could legally ban the Marcoses from returning to the Philippines, the Court in Marcos v. Manglapus,22 voting eight to seven, upheld the restriction on the Marcoses' right to travel as part of the President's residual power as "protector of the peace."23 For me, however, the gripping dissents made for a more compelling analysis on how public safety may, in a proper case, be invoked by the Government to curtail fundamental rights. Justice Teodoro Padilla, for example, opined that:
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return to the country. Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the Court by the highest military authorities of the land last 28 July 1989. I have searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under control," as admitted to the Court by said military authorities, given the resources and facilities at the command of government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short, should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify derogation of human rights.24 (Emphasis and underscoring supplied, citations omitted, italics in the original.)
Similarly, in his Dissent, Justice Hugo Gutierrez, Jr. stated that while there may be disturbances which may be directly attributable to the Marcoses' return to the country, they are "not of a magnitude as would compel this Court to resort to a doctrine of non-justiciability and to ignore a plea for the enforcement of an express Bill of Rights guarantee:"
And except for citing breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the constitutional right to travel.
xxx
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to( 1) national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. x x x Neither ground satisfies the criteria of national security and public safety. The President has been quoted as stating that the vast majority of Filipinos support her position. x x x We cannot validate her stance simply because it is a popular one. Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law. The President's original position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. x x x On February 11, 1989, the President is reported to have stated that "considerations of the highest national good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her film refusal to allow the return of Mr. Marcos despite his failing health. x x x "Interest of the nation," "national good," and "preserving economic and political gains," cannot be equated with national security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national security, public safety, or public health and with the added requirement that such impairment must be "as provided by law." The constitutional command cannot be negated by mere generalizations.25 (Emphasis and underscoring supplied, italics in the original.)
Justice Isagani A. Cruz, for his part, found "mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up their apprehensions" to be insufficient to overcome the Marcoses' right to travel.26 Justice Edgardo L. Paras, on the other hand, stated that while there may be some danger to national safety and national security as claimed by the Government, "there is no showing as to the extent" as to warrant the curtailment of the Marcoses' rights.27 Justice Abraham F. Sarmiento, Sr. similarly objects, thus, "[i]t is his constitutional right, a right that cannot be abridged by personal hatred, fear, founded or unfounded, and by speculations of the man's 'capacity' 'to stir trouble."'28 These dissents, to me, clearly present a powerful case to require of the Government a clear showing of danger to national security or public safety of such scale sufficient to defeat the right to travel guaranteed by the Constitution to Filipino citizens.
I submit that no less than this same requirement should be demanded of the Government in this case.
For, the powers to declare martial law and suspend the privilege of the writ of habeas corpus implicate not only one's right to travel, but many other basic civil liberties, including the most fundamental, namely, "individual freedom."29 There was thus a conscious effort on the part of our Framers to reserve their exercise only in the direst of situations and under the strictest of conditions. The realization that a declaration of martial law and suspension of the privilege of the writ of habeas corpus impacts our most basic and fundamental rights was foremost on the minds of the members of the Constitutional Commission:
FR. BERNAS: I quite realize that that is the practice and, precisely, in proposing this, I am consciously proposing this as an exception to this practice because of the tremendous effect on the nation when the privilege of the writ of habeas corpus is suspended and then martial law is imposed. Since we have allowed the President to impose martial law and suspend the privilege of the writ of habeas corpus unilaterally, we should make it a little more easy for Congress to reverse such actions for the sake of protecting the rights of the people.
xxx
MR. SARMIENTO: I thank Commissioner Monsod. May I join Commissioner Monsod and Commissioner Guingona that the Congress, voting jointly, should have the power to revoke the proclamation of martial law or suspension of the writ of habeas corpus. In this way, we make it easy for the people's representatives to cut short a power which is very potent that could be the subject of abuse, and in the words of Commissioner Bennagen, could open the way for the resurgence of tyranny and dictatorship.xx x
xxx
MR. BROCKA: x x x We are talking about a possible situation, a declaration of martial law, wherein the very basic and fundamental rights of the citizens are involved, x x x. Whether martial law is declared for one day or 60 days, the fact is, when martial law is declared the very basic and fundamental human rights of the citizenry are taken away from them. It does not matter whether it is one day, one hour, or 60 days. So, I would like to express my agreement to Commissioner Monsod's amendment because yesterday we already took away the condition of prior concurrence of Congress; and now, Commissioner Monsod agrees that we have to provide a better safeguard by inserting this particular amendment of a joint decision of Congress.30 (Emphasis supplied.)
It stands to reason that the President may exercise his extraordinary powers only when the danger to public safety has reached such scale that some restriction of fundamental rights becomes constitutionally permissible, under the circumstances.
C
Appreciation of scale is evident in the experience of
the Court in both martial law cases
First. The characterization by the Government of the evidence they presented to justify the proclamation, and later, extension, of martial law and suspension of the privilege of the writ of habeas corpus would show that it admits scale is an element of the public safety requirement. In the presentation in this case made by the Armed Forces of the Philippines (AFP) before the Court, they described the manpower and number of firearms of the rebels/terrorist groups to be of such "magnitude" as to "endanger the public safety" in this wise:
The magnitude as well as the presence of rebel groups endanger the public safety.31
| REBEL/TERRORIST GROUPS |
MANPOWER |
FIREARMS |
CONTROLLED BARANGAYS |
| Communist Rebels |
1,748 |
2,123 |
426 |
| Dawlah Islamiyah |
137 |
162 |
- |
| BIFF |
388 |
328 |
59 |
| ASG |
508 |
598 |
52 |
| TOTAL |
2,781 |
3,211 |
537 |
Thereafter, the Government attempted to pack the record with statistics to show that the "magnitude of scope"32 of the threat to public safety was such as to put the security of Mindanao at stake. To support this conclusion about "magnitude" and "magnitude of scope," they presented specifics as to the number of violent incidents initiated by the different rebel groups,33 the number of victims,34 the amounts received as a result of kidnap-for-ransom activities,35 intensification of recruitment activities,36 and presence of foreign-trained terrorist fighters.37 These, to me, show a clear admission on the part of the Government that the public safety requirement under Section 18, Article VII involves a showing of scale.
Second, the Court, in Lagman v. Medialdea, defined public safety as "involv[ing] the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters."38 Again, this clearly acknowledged scale by using the word "significant"39 to qualify any existing danger, injury/harm or damage to public safety. While it would continue to state that "public safety is an abstract term" whose "range, extent or scope could not be physically measured by metes and bounds,"40 the Court, after an analysis of all the evidence presented, nevertheless found that they have reached a level of danger sufficient to risk public safety:
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid, there must be a concurrence of actual rebellion or invasion and the public safety requirement. In his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute Group were directed not only against government forces or establishments but likewise against civilians and their properties. In addition and in relation to the armed hostilities, bomb threats were issued; road blockades and checkpoints were set up; schools and churches were burned; civilian hostages were taken and killed; non-Muslims or Christians were targeted; young male Muslims were forced to join their group; medical services and delivery of basic services were hampered; reinforcements of government troops and civilian movement were hindered; and the security of the entire Mindanao Island was compromised.
These particular scenarios convinced the President that the atrocities had already escalated to a level that risked public safety and thus impelled him to declare martial law and suspend the privilege of the writ of habeas corpus. In the last paragraph of his Report, the President declared:
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.
Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the privilege of the writ of habeas corpus have been properly and fully complied with. Proclamation No. 216 has sufficient factual basis there being probable cause to believe that rebellion exists and that public safety requires the martial law declaration and the suspension of the privilege of the writ of habeas corpus.41 (Emphasis and underscoring supplied, citations omitted.)
Significantly, it appears to me that all the other members of the Court, including myself, who voted to sustain the President's proclamation of martial law and suspended the privilege of the writ in Mindanao appreciated (whether instinctively or deliberately) to a certain extent the scale to which public safety has been endangered by the situation in Marawi City.
Justice Tijam, in his Separate Concurring Opinion for example, also considered essentially the same circumstances to arrive at his conclusion that the President's proclamation was firmly grounded on the requirements of public safety, that is: (1) destruction of government and privately-owned properties; (2) significant number of casualties; (3) government inability to deliver basic services; (3) government inability to send troop reinforcements to restore peace in Marawi City; and (4) lack of easy access for civilians and government personnel to and from the City.42
III
Scale as a measure for determining the existence
of the public safety requirement; Proposed indicators of scale
The ponencia cites an Amicus Curae Brief submitted by esteemed constitutionalist Father Joaquin G. Bernas, S.J., in Fortun v. Macapagal-Arroyo,43 to justify a "permissive approach" to the President's assessment of the public safety requirement under Section 18, Article VII.44 The portion quoted reads:
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 iu the future arising from present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility of 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.45
While I am in complete agreement with Father Bernas' statement, I disagree with the conclusion reached by the ponencia on account thereof.
First, I believe Father Bernas' statement was given in the context of a discussion regarding the definition of "rebellion" as it is used in the Constitution. The conclusion of the statement was that while the Revised Penal Code definition may be considered, the President is not bound to assume "the function of a judge trying to decide whether to convict a person for rebellion or not."46 It was not meant to define public safety requirements or otherwise proscribe the future provision of guidelines for its determination.
Second. Father Bernas' statement that the determination of the requirements of public safety "involves the verification of factors not as easily measurable"47 is not conceptually incompatible or irreconcilable with the identification of minimum reasonable indicators, "verifiable through the visual or tactile sense,"48 through which to determine whether public safety requires the exercise of the President's extraordinary powers. 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 ce1iainly 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.
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."49
In fact, I realize that I have previously articulated some views on public safety which may seem opposed to the views I now embrace. I initially took the position that since the requirements of public safety appear to be phrased in discretionary terms, it would be difficult to set parameters in a vacuum as to what predicate facts should exist. The facts and experience from this case, however, have opened my eyes to the mischief that a "permissive" approach to the President's "prudential estimation" of the public safety requirement can cause. Permissive deference can be used to justify the imposition or extension of martial law by the simple expedient of alleging the existence or persistence of "rebel" groups capable of opposing the Government. I fail to see the difference between sustaining the extension of martial law based on the capability of hostile "rebel" groups to sow discord against the Government and sustaining martial law on the basis of an imminent danger of rebellion. That would be a movement back to the Lansang formulation, and an abject abdication of this Court's "newly assumed power" to review the declaration, or extension, of martial law based on sufficiency of factual basis.50
Worse, it would open the country to the possibility of a permanent state of martial law, as the Philippines has a long history of rebellions motivated by diverse religious, ideological, regional, and other interests. That rebellion is a continuing crime is a handle for the prosecution of rebels wherever they may be. This criminal law doctrine, however, was never envisioned to be a justification to declare martial law and/or suspend the privilege of the writ of habeas corpus whenever and wherever a rebel may operate or be found. Our history and the evidence presented in this case and in Lagman v. Medialdea have shown that there are rebellions and rebellions. Each rebellion is episodic and will have, as shown in the cases of the Maute Group, the Abu Sayyaf Group (ASG), the Bangsamoro Islamic Freedom Fighters (BIFF) and the New People's Army (NPA), their ebbs and flows.
I believe a proper and principled approach to deciding this and future cases require this Court to identify some reasonable indicators which can be used as guides to determine scale for purposes of the public safety requirement. Certainly, we will not be able to catalogue all indicators with mathematical precision. Such an endeavor, while difficult, is nevertheless doable using all aids available to us, including interpretative aids and knowledge derived from past experience.51 Surely, in deciding this and future cases, the Court is not limited in determining the sufficiency of the factual basis of the requirements of public safety to the extremes of an "I know it when I see it" and "the President knows better" analysis.
As I have endeavored to show above, there were incidents which were considered by the ponencia in Lagman v. Medialdea as indicators of the scale of the danger to public safety which may justify a declaration of martial law and/or suspension of the privilege of the writ of habeas corpus. These are: (1) "armed hostilities" directed not o!lly against government forces or establishments but likewise against civilians and their properties; (2) bomb threats; (3) set up of road blockades and checkpoints by the hostile groups; (4) burning of schools and churches; (5) taking and killing of civilian hostages; (6) targeting of non-Muslims or Christians; (7) forced recruitment of young male Muslims; (8) hampering of the delivery of medical and other basic services; and (9) hindrance to movements of civilians and troop reinforcements.52
Building on the indicators provided in Lagman v. Medialdea, there appears to be two minimum indicators of scale as to reasonably meet the public safety requirement necessary for a declaration of martial law and suspension of the privilege of the writ of habeas corpus. These are: (1) the presence of hostile groups engaged in actual and sustained armed hostilities with government forces;53 and (2) these groups have actually taken over, and are holding, territory.54 Following our experience in Marawi, these indicators may further result in, or may be attended by, the interruption in the sending of troop reinforcements or local authorities being prevented, or unable to, perfonn their regular functions,55 including law enforcement and the delivery of basic services. Bomb threats, burning of schools or churches, kidnapping of civilian hostages, and forced recruitment of young male Muslims only fall under the rubric of lawless violence; they do not, by themselves, satisfy the requirements of public safety. When, as in the Marawi crisis, however, these acts of lawless violence are being committed at or about the same time, and within the same defined territory, they may indicate a significant enough breakdown of general peace and order as to reasonably meet the public safety requirement under Section 18, Article VII.
The ponencia argues that "[t]he adoption of the extreme scenario as the measure of threat to public safety as suggested by petitioners is to invite doubt as to whether the proclamation of martial law would be at all effective in such case considering that enemies of the State raise unconventional methods which change over time."56 It posits that to require parameters may result in a situation where the declaration of martial law "would be of no useful purpose and such could not be the intent of the Constitution. "57
Again, and with respect, I disagree. Our experience in Marawi has proven this to not be the case. At the time, armed hostile groups opposed to the government have already succeeded in overrunning a large part of the city. They engaged government troops in sustained firefights, forcing many of the city's residents to evacuate their homes and flee to temporary shelters outside the city.58 In the end, however, our military forces were still able to restore peace and order and not without great sacrifice. No "unconventional methods" were alleged to have been resorted to by these hostile groups which were beyond the experience and capacity of our government forces to meet. The mere possibility that hostile groups may, in the future, be able to devise such unconventional methods is, however, not an acceptable reason to do away with reasonable proof of scale for purposes of the public safety requirement under Section 18, Article VII. The requisite scale of the danger to public safety must be shown in every exercise of the President's extraordinary powers, regardless of the unconventionality of their causing.
Finally, that there are laws in place which would rectify possible abuses after the fact also does not justify this "permissive" approach. The best safeguard is still vigilance on the part of the agencies tasked to check the exercise of the power in the first place. Ensuring that the President has enough flexibility and discretion on when to impose martial law is not sufficient justification for taking on a "permissive" approach. If at all, the identification of reasonable indicators to determine whether the danger to public safety has reached such scale as to warrant the exercise of the President's extraordinary powers is recognition of the extreme nature of the extraordinary powers and its tremendous effect on civilian lives.
IV
Conclusion: No sufficient factual basis to show that public safety requires
the continued implementation of martial law and suspension of the privilege
of the writ of habeas corpus in Mindanao
The weight of concerns about the continued implementation of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao seem to stem from the absence of a categorical statement on the part of the Court on what martial law means under our Constitution. It cannot mean the assumption by the military, headed by the President, of either judicial or legislative power, at least not in the sense that it was used and abused by the former President Marcos. The 1987 Constitution textually prohibited such results. What then does martial law entail?
Quoting Willoughby, Father Bernas enumerates three types of "martial law:" (I) Military Law Proper, that is, the body of administrative laws created by Congress for the government of the army and navy as an organized force; (2) the principles governing the conduct of military forces in time of war, and in the government of occupied territory; and (3) Martial Law in sensu strictiore, or that law which has application when the military arm does not supersede civil authority but is called upon to aid it in the execution of its civil functions.59
According to Father Bernas, martial law as it is understood in our jurisdiction cannot refer to the first meaning because it "refers to a body of administrative laws which are operative all the time, whereas martial law in the Constitution can be operative only 'in case of invasion or rebellion, when the public safety requires it."'60 After differentiating between the second (military government) and third (martial rule) types of martial law, he concludes that martial law under our Constitution is simply martial rule, that is, the military "takes the place of certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty."61 It is a "public exigency which may rise in time of war or peace" and "ceases when the district is sufficiently tranquil to permit the ordinary agencies of government to cope with existing situations."62
Otherwise stated, martial law as allowed under our Constitution, is simply authority for the military to act vigorously for the maintenance of an ordinary civil government. It is brought about by necessity,63 an exigency brought about by extreme danger to public safety, that its object is simply the "preservation of the public safety and good order."64 Since necessity calls it forth and defines its scope, it is imperative that the Government sufficiently establish the necessity. There must be proof of the graveness of the exigency confronting the Government as to call for the imposition of martial law. Without this, the Court is obliged, if not compelled, to strike down its exercise.
I have examined the written submissions of the Government and listened closely to the briefing provided by representatives from the AFP on the factual bases behind the continued implementation of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao. As earlier stated, the Government, through the AFP, sought to prove the "magnitude of scope"65 of the threat to public safety was such as to put the security of Mindanao at stake. Aside from the data on manpower, arms, and controlled barangays, the following 2017 statistics were also presented: (1) total of 116 BIFF-initiated violent incidents;66 (2) total of 44 ASG-initiated violent incidents;67 (3) total of 53 Dawlah Islamiyah-initiated violent incidents;68 and (4) total of 422 communist-initiated incidents of rebellion in Mindanao.69 When tested, however, against the minimum reasonable indicators above proposed, none of the evidence presented were similar to, or at least somewhat approximating, the scale of the situation which obtained in Marawi City during the initial Proclamation.70 There is nothing in the record to show that there are hostile groups engaged in actual and sustained armed hostilities with government forces. Neither are there allegations, much less, proof of hostile groups actually taking over and holding territory, or otherwise causing a significant breakdown of the general peace and order situation as to prevent local civilian authorities from going about their regular duties. Neither is there evidence presented to support the claimed linkages with foreign terrorist groups. The Islamic State, with its blitzkrieg campaign for the re-founding of an Islamic caliphate, has seen a dramatic decline in its influence in 2017, with its last stronghold, the city of Raqqa, falling into the hands of US-led coalition of Syrian Kurdish and Arab fighters in October of last year.71 And while several Philippine factions of radical Islamic leanings may have pledged allegiance to the Islamic State, the APP has not presented evidence that the organization has reciprocated, or that the Islamic State has publicly acknowledged an official wilayat or franchise in the country, or extended logistical, financial, manpower, or armament supp01i to any, some or all of such factions.72
Lest I be misunderstood, I am not discounting or belittling the damage to life, limb, and property caused by the reported continued attacks of the hostile groups. Granting all of the Government's allegations to be true, however, I do not find these to be sufficient basis to warrant any continued restriction on or suspension of fundamental civil liberties.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos. 235935, 236061, 236145, and 236155, and DECLARE INVALID Joint Resolution No. 4 of the Senate and the House of Representatives dated December 13, 2017, for failure to comply with Section 18, Article VII of the 1987 Constitution.
FRANCIS H. JARDELEZA
Associate Justice
Footnotes
1 Hereinafter "Separate Opinion."
2 G.R. Nos. 231658, 231771, & 231774 July 4, 2017.
3 Separate Opinion, pp. 4-13, 18-23.
4 Separate Opinion, pp. 13-18.
5 Id.
6 Office of the Solicitor General Memorandum, pp. 34.
7 English Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/scale> (last accessed February 6, 2018).
8 Id.
9 RECORD, CONSTITUTIONAL COMMISSION 42 (July 29, 1986).
10 RECORD, CONSTITUTIONAL COMMISSION 43 (July 30, 1986).
11 In re: Parazo, 82 Phil. 230, 237-238 (1948). The Court held reporter Parazo in contempt for his refusal to reveal the sources for his article reporting leakage in the 1948 Bar Examinations. Invoking Republic Act No. 53, which provides that reporters cannot be compelled to reveal their confidential sources unless "such revelation is demanded by the interest of the state," Parazo contended that the phrase "interest of the state" is confined to cases involving the "security of the state" or "public safety." Since concerns regarding the alleged leakage do not qualify as national security matters, Parazo argued that he cannot be compelled to reveal the source of his news information. The Court, however, found that while "security of the state" and "public safety" to be "synonymous phrases" which involve matters of "national security," the term "interest of the state" referred to a much broader concept which includes "matters of national importance in which the whole state and nation, x x x is interested or would be affected, x x x" such as protection of the integrity of the bar examinations and maintenance of the high standards for entry into the legal profession. (Emphasis supplied.)
12 Id. at 239-241.
13 Luque v. Villegas, G.R. No. L-22545, November 28, 1969, 30 SCRA 408, 423. Thus, the Court there upheld the Public Service Commission's imposition of "measures calculated to promote the safety and convenience of the people using the thoroughfares" by regulating the number of provincial buses and jeepneys allowed to enter Manila.
14 Edu v. Ericta, G.R. No. L-32096, October 24, 1970, 35 SCRA 481, 489. The Court refused to sustain a challenge to the Reflector Law which required, for registration purposes, the installation of built-in reflectors and parking lights in vehicles. The Court therein held that "to close one's eyes to the hazards of traffic in the evening xx x betrays Jack of concern for public safety." (Emphasis supplied.) See also Agustin v. Edu, G.R. No. L-49112, February 2, 1979, 88 SCRA 195, which dealt with a challenge to a rule issued by the Land Transportation Office requiring the procurement and use of reflectorized triangular early warning devices.
15 In Uy Matia & Co. v. The City of Cebu, 93 Phil. 300, 304 (1953), the Court upheld the local government's power to regulate and impose taxes and fees on copra warehouses on the finding that it is an establishment likely to endanger the public safety and give rise to conflagrations or explosions: "[O]nce ignited, the fire resulting therefrom, because of the oil it contains, is difficult to put under control by water and to extinguish it the use of chemicals would be necessary."
16 Municipality of San Juan, Metro Manila v. Court of Appeals, G .R. No. 121920, August 5, 2005, 466 SCRA 78, 87-89, citing Todd v. City of Troy, 61 N.Y. 506. The Court held a local government unit liable for damages for its failure to "adopt measures to ensure public safety against open canals, manholes, live wires and other similar hazards to life and property" which resulted to injuries to a motorist. According to the Court, the Municipality's obligation to constantly monitor road conditions to insure the safety of motorists includes the duty "to see that they are kept in a reasonably safe condition for public travel." (Emphasis supplied.)
17 Mirasol v. Department of Public Works and Highways, G.R. No. i58793, June 8, 2006, 490 SCRA 318, 349 & 343. The Court did not find unreasonable the regulation which prohibited motorcycles from traversing toll ways. The Government there argued that the presence of motorcycles in the tollways "will compromise safety and traffic considerations." The Court upheld the Government's position, stating that "[pjublic interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it." (Emphasis supplied.)
18 Department of Public Works and Highways v. City Advertising Ventures Corporation, G.R. No. 182944, November 9, 2016, 808 SCRA 53, 57-58. The Court held that the DPWH's act of removing and confiscating billboards and signs which it determined to be "hazardous and pose imminent danger to life, health, safety and property of the general public" serve the overarching interest of public safety.
19 leave Division, Office of the Administrative Services-Office of the Court Administrator v. Heusdens, A.M. No. P-11-2927, December 13, 2011, 662 SCRA 126, 137. Here, the Court justified the regulations of judicial employees' right to travel thus: "To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the society as well. In a situation where there is a delay in the dispensation of justice, litigants can get disappointed and disheartened. If their expectations are frustrated, they may take the law into their own hands which results in public disorder undermining public safety. In this limited sense, it can even be considered that the restriction or regulation of a court personnel's right to travel is a concern for public safety, one of the exceptions to the non-impairment of one's constitutional right to travel." (Emphasis supplied.)
20 Philippine National Railways Corporation v. Vizcara, G .R. No. 190022, February 15, 2012, 666 SCRA 363, 379-380, citing Philippine National Railways v. Court of Appeals, G.R. No. 157658, October 15, 2007, 536 SCRA 147 and Cusi v. Philippine National Railways, G.R. No. L-29889, May 31, 1979, 90 SCRA 357. In finding negligence on the part of the Philippine National Railways in an action for damages for the death and injury of several civilians, the Court expounded on railroad companies' responsibility to secure public safety, that is, to "avoid injury to persons and property at railroad crossings."
21 CONSTITUTION, Art. III, Sec. 6. This Section provides: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law."
22 G.R. No. 88211, September 15, 1989, 177 SCRA 668; October 27, 1989, 178 SCRA 760.
23 Marcos v. Manglapus, G.R. No. 88211, October 27, 1989, 178 SCRA 760, 762. Here, the Court resolved the issue of whether then President Corazon C. Aquino gravely abused her discretion when she determined that the return of the Marcoses to the Philippines posed a serious threat to national interest and welfare. President Aquino sought to justify her action "[i]n the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways, and for the tranquility of the state and order of society x x x."
24 Manos v. Manglapus, G.R. No. 88211, September 15, 1989, 177 SCRA 668, 719-720.
25 Id. at 703, 710-711.
26 Id. at 715.
27 Id. at 717. Emphasis supplied.
28 Id. at 729.
29 Lansang v. Garcia, G.R. No. L-33964, December 11, 1971, 53 SCRA 448, 471-476.
30 RECORD, CONSTITUTIONAL COMMISSION 44 (July 31, 1986). Here, the Constitutional Commission was debating whether to require a joint or separate vote by the two houses of Congress for purposes of revoking the President's declaration of martial law or suspension of the privilege of the writ. Members of the Constitutional Commission considered the effect of such action on civil rights. After a lengthy debate, the amendment to introduce joint voting by both houses of Congress was able to garner the majority of votes (25 in favor, 4 against, and I abstention).
31 AFP Powerpoint Presentation, Slide No. 75.
32 AFP Briefing Paper on the Extension of Martial Law in Mindanao, p. 15.
33 AFP Powerpoint Presentation, Slide Nos. 19, 26, and 52.
34 AFP Powerpoint Presentation, Slide No. 62.
35 AFP Powerpoint Presentation, Slide No. 28.
36 AFP Powerpoint Presentation, Slide No. 33.
37 AFP Powerpoint Presentation, Slide No. 39-43.
38 Lagman v. Medialdea, supra note 2 at 73.
39 The Oxford dictionary defines "significant'' as "Sufficiently great or important to be worthy of attention; noteworthy." <https://en.oxforddictionaries.com/definition/significant> (last accessed February 6, 2018)
40 Lagman v. Medialdea, supra.
41 Id. at 65-66.
42 Separate Concurring Opinion, J. Tijam, Lagman v. Medialdea, p. 16.
43 G.R No. 190293, March 20, 2012, 668 SCRA 504
44 Ponencia, p. 52.
45 Id.
46 Dissenting Opinion, J. Velasco, Fortun v. Macapagal-Arroyo, supra at 594-595.
47 Id. at 594.
48 Id.
49 Separate Opinion, p. 10.
50 Separate Opinion, p. 9, citing Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 541.
51 The development of the standards for what constitutes obscenity comes to mind. In the 1957 case of Roth v. United States, 354 U.S. 476 (1957), the United States Supreme Court was first confronted with the issue of "whether obscenity is utterance within the area of protected speech and press." While it acknowledged that the law on obscenity at the time was not as developed as to clearly/textually show that it was beyond the protection of the Fourth Amendment, the Court nevertheless found "sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press." Over the course of several years, and several cases later, the Court would continue to grapple with the "intractable obscenity problem," refining, testing and improving the Roth test until 1973, when it decided Miller v. California, 413 U.S. 15 (1973). This experience of the U.S. Supreme Court is, to me, testimony that it is possible to arrive at principled parameters despite the seeming "novelty" of the issue at hand, by utilizing relevant interpretative aids available.
52 Supra note 2 at 65.
53 In Marawi City, there was an actual shooting standoff between the military and the hostile elements. There were also instances of the hostile groups attacking and occupying public and private establishments, such as schools and hospitals adversely affecting the delivery of their respective services. The city was overrun and local police were unable to restore peace and order. See Lagman v. Medialdea, supra note 2 at 5-7.
54 Bridge and road blockades by hostile groups. Sustained occupation of government or civilian properties. Id.
55 "Law enforcement and other government agencies x x x face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. x x x [B]ridge and road blockades [were] set up by groups x xx. Movement by both civilians and government personnel to and from the City is likewise hind1ered." Supra note 2 at 8. citing the Proclamation No. 216 and the President's Report to Congress.
56 Ponencia, p. 52.
57 Id.
58 Maxine Betterige-Moes, What happened in Marawi?, October 30, 2017 <http://www.aljazeera.com/indepth/features/2017/10/happened-marawi-171029085314348.html> (last accessed February 1, 2018). Given the gravity of the situation, no member of the Court appeared to question the scale of the danger to public safety at the time. In fact, the debates mostly revolved around legal concepts: what is the nature of the action filed under Section 18, what is the scope of the Court’s review, what is the proper standard to assess the President's action, and how to define rebellion.
59 Bernas, S.J ., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 899.
60 Id.
61 Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 901.
62 Id.
63 Concurring Opinion of Chief Justice Stone in Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946), citing Luther v. Borden, 48 U.S. 1 (1849); Mitchell v. Harmony, 54 U.S. 115 (1851); United States v. Russell, 80 U.S. 623 (1871); Raymond v. Thomas, 91 U.S. 712 (1875); and Sterling v. Constantin, 287 U.S. 378 (1932).
64 Id.
65 AFP Briefing Paper on the Extension of Martial law in Mindanao, p. 15.
66 These incidents, broken down, are as follows: 3 ambuscades; I shelling/strafing; 64 firing/attacks upon government troops; 2 shootings; 4 liquidation/sniping; 2 arsons; 32 landmining and attacks using improvised explosive devices (IEDs); and 8 grenade throwing/explosions. See AFP Powerpoint Presentation, Slide No. 19.
67 These incidents, broken down, are as follows: 13 kidnappings; 3 JED landmining/explosions; 17 attacks; 3 murders; 2 strafing; I liquidation; I shooting; 1 ambuscade; 1 arson; I firefight; and 1 grenade throwing. See AFP Powerpoint Presentation, Slide No. 26.
68 AFP Powerpoint Presentation, Slide No. 37.
69 AFP Powerpoint Presentation, Slide No. 52.
70 It must be noted that reference to the Marawi Siege is especially relevant considering that what is at issue here is the extension of a declaration of martial law brought about by said incident.
71 BBC News, Islamic State and the Crisis in Iraq and Syria in Maps, January 10, 2018 <http://www.bbc.com/news/world-middle-east-27838034> (last accessed on February 6, 2018). The city was the de facto capital of the caliphate the group declared. An intensive aerial bombardment by the US- led coalition helped secure victory in Raqqa for the Syrian Democratic Forces (SDF), which was formed in 2015 by the Kurdish Popular Protection Units (YPG) militia and a number of smaller, Arab factions. Since early June, coalition planes have carried out almost 4,000 air strikes on the city.
72 Patrick B. Johnston and Colin P. Clarke, Is the Philippines the Next Caliphate?, November 28, 2017 <https://www.rand.org/blog/2017/11/is-the-philippines-the-next-caliphate.html?> (last accessed February 6, 2018).
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CAGUIOA, J.:
"At first all of it appeared to be idiotic
in its impudent assertiveness.
Later on it was looked upon as disturbing,
but finally it was believed."1
Shorn of its legal niceties, martial law is an emergency governance response involving the imposition of military jurisdiction over civilian population, designed to complement the emergency armed force response to an actual armed uprising. Force is met with force. The might of the military is summoned and flexed to prevent the dismemberment of the Republic caused by an actual rebellion or invasion, with martial law suspending certain civil liberties to facilitate the armed response. But, when the rebellion is quelled, or the invasion is repelled, the normal state of affairs must return.
The declaration and extension of martial law in the absence of the exigencies justifying the same reduces such extraordinary power to a mere tool of convenience and expediency. Thus, the baseless imposition of martial law constitutes, in itself, a violation of substantive and procedural due process, as it effectively bypasses, if not renders totally nugatory, the conditions and limitations explicitly spelled out in the Constitution for the protection of individual citizens. This violation merits consideration in the resolution of this Petition, for it stands independent of the acts of abuse that may be, or have been perpetrated in furtherance thereof.
In these consolidated petitions, the Court reviews anew the sufficiency of the factual basis of the extension of martial law for one year in the entire Mindanao.
The power to extend is subject to
constitutional conditions.
Article VII, Section 18 of the Constitution contains the standards with which all three coordinate branches of government must comply in relation to the declaration or extension of martial law, and its review.
It enshrines the extraordinary powers of the President as Commander-in- Chief of the Armed Forces of the Philippines (AFP) - (i) the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion; (ii) the power to suspend the privilege of the writ of habeas corpus; and (iii) the power to proclaim martial law. In Lagman v. Medialdea2 (Lagman) the Court characterized these powers as graduated in nature, such that each may only be resorted to under specified conditions. As for the declaration of martial law, the relevant portion reads:
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.3
The Court, in Lagman, stated that Section 18, Article VII sets the parameters for determining the sufficiency of the factual basis for the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power"4 and thereupon proceeded with the analysis consistent with those standards. Lagman also instructs that the President is given the prerogative to determine which extraordinary power to wield in a given set of circumstances, provided, however, that the conditions required by the Constitution for the use of these extraordinary powers exist, for while the exercise of the calling-out power is primarily left to the President's discretion,5 the power to suspend the privilege of the writ and declare martial law are not.
As for the extension by the Congress of the declaration of martial law, the same first paragraph of Section 18 provides:
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.
Staying faithful to the above text and consistent with Lagman, the parameters of determining the sufficiency of the factual basis of the extension requires the Court to examine whether (1) the invasion or rebellion persists, and (2) public safety requires the exercise of such power.
Several points become instantly clear from a plain reading of the above text: (1) the invasion or rebellion furnishing the first requirement for the extension indubitably refers to the invasion or rebellion that triggered the declaration sought to be extended, and (2) the requirement of public safety must require the extension. The mere fact of a persisting rebellion or existence of rebels, standing alone, cannot be basis for the extension.
The Court's power and duty to review under Section 18 contemplates the determination of the existence of the conditions upon which the President's extraordinary powers may be exercised. In the context of an extension of a prior proclamation or suspension, the Court's duty thus equates to the determination of whether the factual basis therefor, then "sufficient, truthful, accurate, or at the very least, credible,"6 persists.
The Executive and Legislative
Departments bear the burden of
proof to show sufficient factual
basis.
The question of burden of proof in the review of the declaration of martial law has been settled in Lagman - the Executive bears the burden of proof. For the same reasons I stated in my Dissent in that case, given the nature of a Section 18 proceeding as a neutral fact-checking mechanism, the Executive and Legislative departments continually bear the burden of proving sufficient factual basis for the extension.
The Court has recognized that martial law poses a severe threat to civil liberties;7 fittingly, a review of its declaration or extension must require proof. Even the less stringent review in Lansang v. Garcia8 required that minimum.
Consequently - and I reiterate to the point of being tedious - the presumptions of constitutionality or regularity do not apply to the Executive and Legislative departments in a Section 18 proceeding. These presumptions cannot operate to require the petitioners to prove a lack or insufficiency of factual basis or to produce countervailing evidence because this amounts to an undue shifting of the burden of proof absent in the language of the provision, and clearly was not the intendment of the framers. As well, while 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. To insist otherwise is to argue the absurd.
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.
The requirements for the extension
of Proclamation 216 have not been
met.
Again, the parameters for determining the sufficiency of the factual basis are now well-settled. As stated in Lagman, they are: (i) the existence of an actual rebellion or invasion; and (ii) that public safety necessitates such declaration or suspension. I find that the extension fails the test of sufficiency of factual basis, as both these requirements do not exist to justify the extension.
The existence of an actual rebellion
was not established with sufficient
evidence.
A valid declaration of martial law presupposes the existence of rebellion as a matter of fact and law. As defined in the Revised Penal Code (RPC),9 the following elements are necessary for the crime of rebellion to exist:
First, that there be (a) a public uprising and (b) taking arms against the government; and
Second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said 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 or prerogatives.
Simplified, the elements of rebellion are reducible to (i) an overt act of armed public uprising and (ii) a specific purpose. Both elements must concur and be proved independently of each other, as explained by the Court in People v. Lovedioro10 :
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 crimes. 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 rebellion.11
Based on the foregoing standards, the point of inquiry therefore is whether the Congress had sufficient factual basis to conclude that rebellion persists - that the concurrence of the elements of rebellion obtaining during the time of the declaration still exists - thus justifying the extension of the proclamation of martial law. Necessarily, the relevant window of time to be considered is shortly before the Congress' receipt of the President's Letter dated December 8, 2017.
i. The element of an armed public uprising no longer exists
My dissent is largely premised on a simple fact: there is no more armed public uprising - thus, it cannot be said that the rebellion necessitating the declaration persists. In this regard, a review of the key evidence is in order.
a. Letter dated December 8, 2017 (Subject Letter) and Resolution of Both Houses No. 4 dated December 13, 2017 (Joint Resolution)
In the Subject Letter that eventually formed the basis of the Joint Resolution, the narration of facts palpably demonstrates that the armed public uprising which necessitated the issuance of Proclamation No. 216 had already been subdued by government forces:
I am pleased to inform the Congress that during the Martial Law period as extended in Mindanao, the Armed Forces of the Philippines (AFP) has achieved remarkable progress in putting the rebellion under control. General Rey Leonardo Guerrero, AFP Chief of Staff and Martial Law Implementor, has reported that a total of nine hundred twenty (920) DAESH-inspired fighters, including their known leaders, have been neutralized. Clearing of the main battle area in Marawi City was fast-tracked, with at least one hundred thirty-nine (139) terrorists arrested, of which sixty-one (61) have been criminally charged. All these hastened the liberation of Marawi City on 17 October 2017, and paved the way for the initiation of efforts for the rehabilitation and reconstruction of the city.
On 04 December 2017 I received a letter from Secretary of National Defense Delfin N. Lorenzana, as Martial Law Administrator, stating that "based on current security assessment made by the Chief of Staff, Armed Forces of the Philippines, the undersigned recommends the extension of Martial Law for another twelve (12) months or one (1) year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul lslamiyah Waliyatul Masriq (DIWM), other likeminded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), and the communist terrorists (CTs) and their coddlers, supporters, and financiers x x x." A copy of Secretary Lorenzana's letter (together with a copy of the letter of AFP Chief Guerrero) is attached for your convenient reference.
The security assessment submitted by the AFP, supported by a similar assessment by the Philippine National Police (PNP), highlights certain essential facts that I, as Commander-in-Chief of all armed forces of the Philippines, have personal knowledge of
First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained at-large and, in all probability, are presently regrouping and consolidating their forces.
More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole of Southeast Asia.
Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH Wilayat in the Philippines and Southeast Asia.
Third, the Bangsamoro Islamic Freedom Fighters (BIFF) continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato. For this year, the BIFF has initiated at least eighty-nine (89) violent incidents, mostly harassments and roadside bombings against government troops.
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at least forty-three (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly beheaded.
Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NPA) took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule.12 (Emphasis supplied)
Based on the contents of the Subject Letter, its plain import is that: (i) the rebellion that spawned Proclamation No. 216 is already "under control" as over 1,000 DAESH-inspired fighters have either been killed in combat or arrested; (ii) Marawi has been liberated; (iii) reconstruction and rehabilitation of Marawi is already underway; and (iv) the rebel groups have not yet been "totally eradicated" as there are still "remnants" remaining.
These claims are made in the face of statements made a month or two prior to this request for extension by key military and government officials in the media that Marawi has been liberated;13 that the Bangsamoro Islamic Freedom Fighters (BIFF) attacks had no connection to the Marawi siege;14 and that military operations have ceased because there are no longer militants in Marawi, and the remaining stragglers no longer affect the security in the area.15 Interestingly, statements of military and government officials only took a turn and became consistent with the claims made in the Subject Letter at the start of 2018, after the filing of the consolidated petitions for review. Now there are warnings of a repeat of the siege,16 and of a "continuing rebellion".17
Significantly, there is nothing in the Subject Letter that would show that the said rebellion has maintained or intensified in strength. On the contrary, the phrases "rebuild[ing] their organization," "presently regrouping and consolidating their forces," "radicalization/recruitment," "financial and logistical build-up," all connote that the armed public uprising had been quashed and that the rebel groups were recuperating or, at most, reduced to engaging in preparatory acts toward some unspecified end. As if removing all doubt, the Subject Letter is couched in the future tense as it states that the activities of the DAESH-inspired fighters "are geared towards the conduct of x x x armed public uprisings" and that the Turaifie Group is "planning to conduct bombings."
To state the obvious, to say that a rebel group is engaged in activities geared towards the conduct of an armed public uprising is to say that no armed public uprising is, as of yet, existing. As well, to claim, as the respondents do, that the commission of acts preparatory to an armed public uprising a priori constitutes an actual rebellion is an argument in a circle. It is illogical and completely fails to persuade.
While it is true that rebellion is characterized as a "continuing offense," which constitutes a series of repeated acts,18 it is equally true that these overt acts must be anchored on a common ideological base19 and committed in furtherance thereof. In the context of a martial law extension, this unity in purpose must be clearly ascertainable from the acts in question. Stated differently, there must be a clear showing that the acts cited as basis for the extension are in fact done in furtherance of the rebellion subject of the initial proclamation. Again, I echo the warning of Justice Feliciano in Lacson v. Perez20 on this point:
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. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association[.]"21 (Emphasis and underscoring supplied.)
Justice Feliciano's observations find particular relevance in this Petition, for unlike in Lagman where an armed public uprising was shown to have taken place in Marawi City, no such circumstance has been shown to persist in Marawi City or any part of Mindanao. As I had stated in my Dissent in Lagman, the concept of rebellion as a continuing crime does not thereby extend the existence of actual rebellion wherever these offenders may be found, or automatically extend the public necessity for martial law based only on their presence in a certain locality.22 The requirement of actual rebellion serves to localize the scope of martial law to cover only the areas of armed public uprising. Necessarily, martial law is confined to the place where there is actual rebellion, meaning, concurrence of the normative act of armed public uprising and the specific purpose.
Nevertheless, in the Joint Resolution, the Congress resolved to extend the proclamation of martial law over the entire Mindanao for the second time, based essentially on the same set of facts set forth in the Subject Letter. Thus:
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;
xx xx
WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the 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; x x x23 (Emphasis supplied)
It is not unusual - as it is, in fact, expected - that a defeated army will have its own share of survivors. Our own colonial history bears witness to this fact. Hence, that some enemy fighters remain alive does not mean that a battle has not been won. In this case, to require first the "total eradication" of rebel groups before a rebellion can be considered quelled goes against plain logic and human experience. Meaning to say, the rebels' survival and the concomitant perpetuation of their ideology do not ipso facto mean that there is still an armed public uprising. And where there is no more armed public uprising, there can be no rebellion persisting as contemplated in the Constitution.
Respondents attempt to cover up this gaping hole by extending, through some legal fiction, the rebellion subject of Lagman to the present case. Using the Court's declaration in Lagman that actual rebellion existed in Mindanao, respondents claim that the issue of whether rebellion still exists should have already been "laid to rest."24 In effect, respondents are telling the Court that the armed public uprising then existing during the first declaration of martial law on May 23, 2017 still persists, purportedly on the basis of the principle of conclusiveness of judgment. This is egregious error.
As pointedly discussed in the ponencia, with which I fully agree, the issue in the earlier Lagman case refers to the existence of a state of rebellion that would call for the President's initial declaration of martial law, while in this case, the issue refers to the persistence of the same rebellion that would justify the extension of martial law by the Congress. Moreover, given the nature of an armed public uprising, it follows that the Court's judgment on the sufficiency of factual basis for the declaration of martial law is transitory25 and relevant only to the state of affairs during that specific period in time.
b. Presentation of Respondents during the Oral Arguments held on January 17, 2018
Among the data presented by respondents are lists of violent incidents in Mindanao. It must be stressed, however, that most of the data presented are irrelevant for the simple reason that most of the attacks listed occurred during periods irrelevant to the controversy at hand. Evidence, to be admissible, must be relevant to the fact in issue, that is, it must have a relation to the fact in issue as to induce belief in its existence or non-existence.26
Again, the relevant window of time to be considered is shortly before the Congress' receipt of the President's letter dated December 8, 2017. Thus, events that took place: (i) prior to the declaration of martial law on May 23, 201 7 being the set of facts that the President considered when he issued Proclamation No. 216; and (ii) the intervening period from May 23, 2017 to July 18, 2017, which is when the President requested a first extension from Congress and which in turn is the supposed set of facts that Congress considered when it extended Proclamation No. 216 until December 31, 2017 are irrelevant for the purpose of showing that rebellion persists from the time martial law was first declared and extended.
Synthesizing the data, therefore, from the time Marawi was declared liberated on October 17, 2017, only seven (7) BIFF-initiated violent incidents were reported, all occurring within the Province of Maguindanao. The same can be said of the "Abu Sayyaf Rebel Group List of Violent Activities," which reported all incidents beginning January 6, 2017 until December 24, 2017. Only five (5) ASG-related incidents were reported between October 17, 2017 (when Marawi was liberated) until December 13, 2017.
To my mind, what stands out from the foregoing data is the apparent pattern of violence in Mindanao even before the "Marawi Siege." This glaring fact, in effect, dilutes respondents' claim that the incidents of violence following the declaration of martial law was in pursuance of the actual rebellion in Lagman. Hence, without more, respondents' evidence remains ambiguous, to say the least.
Meanwhile, without delving into specifics, respondents also introduced a list of pending criminal cases for rebellion. However, a cursory reading of the list would reveal that the most recent development was the issuance of a Resolution dated July 27, 2017, or almost three (3) months before Marawi's liberation, finding probable cause to indict several respondents for the crime of rebellion. Clearly, this specie of evidence is irrelevant in the Congress' determination of whether there is sufficient factual basis to extend martial law from beyond its first extension of until December 31, 2017.
In the same vein, the list of "Arrested Personalities" provided by respondents is likewise of no consequence. As clearly stated in its heading, the said list only covers arrests "as of 23 October 2017," or a few days after Marawi's liberation, a date that is too far removed from the Congress' deliberation leading to the Joint Resolution.
All things considered, I am fully convinced that respondents have failed to establish the persistence of an actual rebellion as a constitutional requirement for the extension of martial law. While they argue that the rebellion in Lagman was still persisting at the time the Joint Resolution was issued, the evidence and their own admissions say otherwise - that is - that the armed public uprising has already ceased. Respondents can no longer resurrect what the law considers dead.
ii. The specific purpose
Following Lovedioro,27 it must be proved that the armed public uprising was for any of the purposes enumerated in Article 134 of the RPC. Specific purpose is akin to intent, the existence of which, being a state of the mind, is proven by overt acts of the accused.28
Proceeding from the above discussion, the data in the presentation of respondents during the Oral Arguments held on January 17, 2018 failed to take into account the purpose for such violent incidents. By merely listing attacks made by certain armed groups, respondents cannot summarily conclude that the same are geared towards the accomplishment of the purposes of rebellion under the RPC. Absent any more data indicating purpose, the Court cannot, without violating the standards of the Constitution, rely on surmises and hasty conclusions.
To illustrate, the incidents are described as "IED attack," "attack," "grenade explosion," "kidnapping," "harassment," which are all highly generic terms, making it impossible to determine intent. Even the targets of these attacks were not supplied. At most, only the data with respect to the pending criminal cases are competent to prove intent as there was already a finding of probable cause for the crime of rebellion. However, as already discussed above, the said information is inconsequential and could not have been used by Congress to determine the necessity of extending martial law.
Another point. The ponencia cites as basis for its conclusion that the rebellion persists is the reported increase in manpower of the "remnants" of the rebel groups. I submit, however, that respondents were unable to prove the component of specific purpose due to their own admissions to the contrary. As quoted at length in the ponencia:
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 !ED-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 Daes-hinspired 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.29 (Emphasis supplied)
As admitted by respondents themselves, the motivations of (i) clannish culture, (ii) revenge for their killed relatives, and (iii) financial gain, are not among the purposes contemplated in the RPC, which are, to repeat: (a) to remove from the allegiance to said 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 or prerogatives.
I also submit that the reliance of the ponencia on the atrocities committed by the New People's Army (NPA) in extending martial law stands on shaky ground. The Subject Letter reads in part:
Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NP A) took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule.
This year, the NP A has perpetrated a total of at least three hundred eight-five (385) atrocities (both terrorism and guerilla warfare) in Mindanao, which resulted in forty-one ( 41) Killed-in-Action (KIA) and sixty-two (62) Wounded-in-Action (WIA) on the part of government forces. On the part of the civilians, these atrocities resulted in the killing of twenty-three (23) and the wounding of six (6) persons. The most recent was the ambush in Talakag, Bukidnon on 09 November 2017, resulting in the killing of one (1) PNP personnel and the wounding of three (3) others, as well as the killing of a four (4)-month-old infant and the wounding of two (2) civilians.
Apart from these, at least fifty-nine (59) arson incidents have been carried out by the NP A in Mindanao this year, targeting businesses and private establishments and destroying an estimated P2.2 billionworth of properties. Of these, the most significant were the attack on Lapanday Food Corporation in Davao City on 09 April 2017 and the burning of facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental on 06 May 2017, which resulted in the destruction of properties valued at ₱l.85 billion and ₱109 million, respectively. (Emphasis supplied)
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. However, despite the express parameters of Section 18, the ponencia finds no error in the inclusion of the NPA in the Subject Letter as basis for the extension. Indeed, it is incredible how a "decades-long rebellion" can be used as basis for extending Martial Law triggered by a rebellion that took place only months ago, especially considering that both movements were mounted by different groups inspired by distinct ideologies.
If there is indeed an actual rebellion by the NP A as contemplated in Section 18, it must be covered by a new declaration.
In this scenario espoused by the ponencia, violent attacks by different armed groups could easily form the basis of an endless chain of extensions, so long as there are "overlaps" in the attacks. To this end, the ponencia is accommodating practical concerns over the clear mandate of the country's fundamental law. This precedent dangerously supports the theoretical possibility of perpetual martial law. This precedent dangerously suggests a perpetual violation of people's Constitutional rights. As well, to anchor the Court's review to the fallback position that the "government can lift the state of martial law once actual rebellion no longer persists and that public safety is amply secured" is to abdicate the duty of the Court to determine for itself the sufficiency of factual basis for the extension.
Likewise, following the discussion above, the factual narration in the Subject Letter presented is highly ambiguous, if not amorphous.
First, the timeline of the violent incidents is unclear as the information merely reflects the total number of the atrocities for "this year," which is the entire 201 7. Again, these figures do not present an accurate picture because they include incidents already relied upon for the initial declaration and the first extension, and for that reason, are far-removed from the question of persistence of rebellion when Congress was deliberating on the second extension of martial law.
Second, some details in the Subject Letter strongly negate rebellion as the attacks were described as "terrorist acts against innocent civilians and private entities," and "arson incidents x x x targeting businesses and private establishments." Needless to state, terrorist acts and destruction of property, no matter how grave, are for entirely different ends than that of rebellion under Article 134. In fact, these and analogous factual bases have been relied upon by the Executive when it called out the armed forces in Proclamation No. 55, s. 2016,30 without any showing that there was an escalation of violence that necessitated the extension.
Third, the claim of "intensified" rebellion of the NP A is vague in light of the "decades-long rebellion" already existing. Considering the known fact of protracted violence in different areas of Mindanao, the Subject Letter provides no standard by which Congress, and consequently, this Court, could determine whether indeed there is a considerable rise in violent incidents that make martial law a necessity. Without such standard, Congress will be left to guesswork and blind adherence to the word of the President.
All told, weighing the totality of evidence adduced by respondents, I find that there is insufficient factual basis to justify an extension of martial law.
iii. The evidence suggests a mere threat of rebellion
The foregoing discussion does not mean, however, that I am turning a blind eye to the situation in Mindanao. The facts, as they stand, while falling short of establishing an existing rebellion, indicate a threat thereof.
However, under the framework of our present Constitution, it is only in cases of an actual rebellion or insurrection that the President may, when public safety requires it, place the Philippines or any part thereof, under martial law. The threat of a rebellion, no matter how imminent, cannot be a ground to declare martial law.31
The intent of the framers of the Constitution to limit the President's otherwise plenary power only to cases of actual rebellion is discernible from the deliberations of the Constitutional Commission of 1986, as cited by the Court in Lagman v. Medialdea32:
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial law there is no need for concurrence of the majority of the Members of Congress because the provision says "in case of actual invasion or rebellion." If there is actual invasion and rebellion, as Commissioner Crispino de Castro said, there is a need for immediate response because there is an attack. Second, the fact of securing a concurrence may be impractical because the roads might be blocked or barricaded. x x x So the requirement of an initial concurrence of the majority of all Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.
Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is subject to judicial review at any point in time. So on that basis, I agree that there is no need for concurrence as a prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus.33
xx xx
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even during those first 60 days.34
xx xx
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident, everybody knows what happened. Would the Committee consider that an actual act of rebellion?
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 x35
Meanwhile, in Integrated Bar of the Philippines v. Zamora,36 the Court cited the following exchange:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xx xx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: "The President ... may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger of invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.37
xx xx
MR. CONCEPCION. The elimination of the phrase "IN CASE OF IMMINENT DANGER THEREOF" is due to the fact that the President may call the Armed Forces to prevent or suppress invasion, rebellion or insurrection. That dispenses with the need of suspending the privilege of the writ of habeas corpus. References have been made to the 1935 and 1973 Constitutions. The 1935 Constitution was based on the provisions of the Jones Law of 1916 and the Philippine Bill of 1902 which granted the American Governor General, as representative of the government of the United States, the right to avail of the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law in the event of imminent danger. And President Quezon, when the 1935 Constitution was in the process of being drafted, claimed that he should not be denied a right given to the American Governor General as if he were less than the American Governor General. But he overlooked the fact that under the Jones Law and the Philippine Bill of 1902, we were colonies of the United States, so the Governor General was given an authority, on behalf of the sovereign, over the territory under the sovereignty of the United States. Now, there is no more reason for the inclusion of the phrase "OR IMMINENT DANGER THEREOF" in connection with the writ of habeas corpus. As a matter of fact, the very Constitution of the United States does not mention "imminent danger." In lieu of that, there is a provision on the authority of the President as Commander-in-Chief to call the Armed Forces to prevent or suppress rebellion or invasion and, therefore, "imminent danger" is already included there.38 (Emphasis supplied)
The demonstrable capacity to launch a rebellion, absent an overt act in pursuance thereof, is not actual rebellion. As well, it is only if the actual rebellion or insurrection persists that the declaration of martial law may be extended. The evidence presented by the respondents do not sufficiently prove the existence or persistence of an actual rebellion. It is in this light that I register my dissent to the finding of sufficiency of factual basis as to the first requirement.
There is no evidence to show that
the requirements of public safety
necessitate the continued
implementation of Proclamation
No. 216 in any part of Mindanao.
Even assuming that the evidence presented by the respondents constitute sufficient proof of the existence of rebellion, I emphasize, as I did in my Dissent in Lagman,39 that the existence of actual rebellion does not, on its own, justify the declaration of martial law or suspension of the privilege of the writ if there is no showing that it is necessary to ensure public safety.40
To pretend that the analysis of the question before the Court turns only upon the fact of the existence of the Maute group, the NP A, the BIFF, Islamic fundamentalists and other armed groups that are on the loose, and their on-going plans to regroup and perceived capacity to sow terror upon our people in the future, is to deceive.
As early as Lansang, the Court already recognized that the magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension of the privilege - in this case, in the extension of the declaration of martial law - namely, that it be required by public safety.41
On this score, I maintain that the President's exercise of extraordinary powers must be measured against the scale of necessity and calibrated accordingly. The Court's determination of insufficiency of factual basis carries with it the necessary implication that the conditions for the use of such extraordinary power do not exist. In making such a finding, the Court does not thereby assume to do the calibration in the President's stead, but only checks the said calibration in hindsight, as Section 18 empowers and mandates the Court to do.
As correctly observed by petitioner Rosales, necessity, in the context of martial law, is dictated not merely by the gravity of the rebellion sought to be quelled, but also the necessity of martial law to address the exigencies of a given situation.42
The Constitutional deliberations elucidate:
MR. DE LOS REYES. But is not the suspension of the privilege of the writ of habeas corpus and the imposition of martial law more of the preparatory steps before the President should call the Armed Forces of the Philippines as Commander-in-Chief? In other words, before calling the Armed Forces of the Philippines should he not take the preparatory step of suspending the privilege of the writ of habeas corpus or imposing martial law?
MR. REGALADO. As a matter of fact, the former President outlined the steps and we have put them here as follows: (1) When it is only imminent danger, although, of course, he did not use that term, he can already call out the Armed Forces just to prevent or suppress violence; (2) if the situation has worsened and there is a need for stronger measures, then aside from merely calling out the Armed Forces he goes into the suspension of the privilege of the writ; (3) but if both measures calling out the Armed Forces and the suspension of the privilege of the writ still prove unavailing in the face of developments and exacerbated situation, this time he goes to the ultimate which would be martial law.
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident everybody knows what happened. Would the Committee consider that an actual act of rebellion?
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
Commissioner Bernas would like to add something.
FR. BERNAS. Besides, it is not enough that there is actual rebellion. Even if we will suppose for instance that the Manila Hotel incident was an actual rebellion, that by itself would not justify the imposition of martial law or the suspension of the privilege of the writ because the Constitution further says: "when the public safety requires it." So, even if there is a rebellion but the rebellion can be handled and public safety can be protected without imposing martial law or suspending the privilege of the writ, the President need not. Therefore, even if we consider that a rebellion, clearly, it was something which did not call for imposition of martial law.43 (Emphasis and underscoring supplied.)
Lagman instructs that "necessity" should be understood as a standard that proceeds from the traditional concept of martial law under American Jurisprudence, that is, martial law in a theater of war.44 In turn, the conditions existing in a theater of war were clearly identified during the Constitutional deliberations, thus:
MR. FOZ: xxx
May I go to the next question? This is about the declaration of martial law or the suspension of the privilege of the writ of habeas corpus on page 7, on the second to the last paragraph of Section 15. Is it possible to delete the clause "where civil courts are able to function"? In the earlier portion of the same sentence, it says, "nor supplant the functioning of the civil courts ... "I was just thinking that if this provision states the effects of the declaration of martial law - one of which is that it does not supplant the functioning of the civil courts - I cannot see how civil courts would be unable to function even in a state of martial law.
xx xx
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 opened 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.45 (Emphasis supplied.)
During the Oral Arguments, Commissioner Monsod further clarified the concept of necessity as a fixed standard, thus:
CHIEF JUSTICE SERENO:
xx x Assuming there's rebellion or invasion done. The second part how do we interpret when the public safety requires it? Requires it means public safety requires the imposition of martial law, i.e. [martial law] is necessary?
xx xx
CHIEF JUSTICE SERENO:
I'm just about the logical nexus.
xx xx
CHIEF JUSTICE SERENO:
Meaning it is not [that] rebellion always demands, always threatens public safety. Because in the example given by Justice Carpio, if only two people rebel how can public safety be endangered. So there can be rebellion without [the] public [being] endangered. So the proper breeding of the second requirement is not that rebellion, rebellion is not required to be present (sic). It must always be present but (sic) that public safety requires the imposition of martial law. In other words, you will still go back to the idea of the need to calibrate the powers sought to be exercised by the President.
xx xx
CHIEF JUSTICE SERENO:
xx x I was thinking that the proper interpretation is that rebellion is there, and therefore, public safety requires the imposition of martial law, rather the public safety requires the imposition of martial law in a situation where in the first place rebellion or invasion has been already established. You get me? In other words, the calibration of the power is defined by the need to protect the public.
xx xx
CHIEF JUSTICE SERENO:
xx x May I request Commissioner Monsod please?
Chairman, can you tell me whether the better interpretation is that public safety requires it, public safety requires the imposition of martial law to address the rebellion or the invasion?
ATTY. MONSOD:
Yes, Your Honor.
CHIEF JUSTICE SERENO:
Is that the correct interpretation?
ATTY. MONSOD:
Yes. It's part, there has to be [a] condition of public safety requires it. Now, that includes, in other words, the citizens are exposed to all the dangers to their health or safety or security. It even includes the absence of social services. It includes the police protection is no longer there, the military steps in. And that's the situation that is contemplated. It is a lack of government services whether protection of the police help (sic) and so on of the citizens and criminality and all that. That's when the military comes in.
xx xx
ATTY. MONSOD:
That's the standard.
CHIEF JUSTICE SERENO:
[Whenever you] talk about necessity, you always must x x x must always have a calibration exercise.
ATTY. MONSOD:
Yes.
CHIEF JUSTICE SERENO:
Because you are already talking of necessity, and of course, you measure.
ATTY. MONSOD:
Yes.
xx xx
CHIEF JUSTICE SERENO:
So, the quote in the doctrine, well in the part of the decision, quoting [E]x-parte [M]illigan, "is the martial law where the military has jurisdiction in a theater of war."
ATTY. MONSOD:
Yes.
CHIEF JUSTICE SERENO:
You still believe that still has a bit of relevance in the matter of necessity.
ATTY. MONSOD:
Yes.
CHIEF JUSTICE SERENO:
In other words, that [E]x-parte [M]illigan quotation was basically a definition of the necessity for the military presence and in fact, jurisdiction.
ATTY. MONSOD:
Yes, still necessity.46
The rationale behind the lofty standard of "necessity" is clear - the President is already equipped with sufficient powers to suppress acts of lawless violence, and even actual rebellion or invasion in a theater of war, through calling out the AFP to prevent or suppress such lawless violence. The necessity of martial law therefore requires a showing that it is necessary for the military to perform civilian governmental functions or acquire jurisdiction over civilians to ensure public safety.
This is consistent with my vote in Lagman wherein I found the existence of an actual rebellion but found that the requirement of public safety only necessitated the imposition of martial law over the areas of Lanao del Sur, Maguindanao, and Sulu, as areas intimately or inextricably connected to the armed uprising then existing in Marawi City.
Hence, I find as completely unfounded the assertion that the lifting of Proclamation No. 216 will render the Executive unable to meet the current situation in Mindanao.
As confirmed by Commissioner Bernas:
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: "The President ... may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger of invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.47 (Emphasis and underscoring supplied)
The ponencia finds that the submissions of the respondents show that the continued implementation of martial law in Mindanao is necessary to protect public safety. As basis, the ponencia cites the following events and circumstances disclosed by the President and AFP:
(a) No less than 185 persons in the Martial Law Arrest Orders have remained at large. Remnants of the Hapilon and Maute groups have been monitored by the AFP to be reorganizing and consolidating their forces in Central Mindanao, particularly in Maguindanao, North Cotabato, Sulu and Basilan, and strengthening their financial and logistical capability.
(b) After the military operation in Marawi City, the Basilan-based ASG, the Maute Group, the Maguid Group and the Turaifie Group, comprising the DAESH-affiliate Dawlah Islamiyah that was responsible for the Marawi siege, was left with 13 7 members and a total of 166 firearms. These rebels, however, were able to recruit 400 new members, more or less, in Basilan, the Lanao Provinces, Sarangani, Sultan Kudarat and Maguindanao.
(c) The new recruits have since been trained in marksmanship, bombing and tactics in different areas in Lanao del Sur. Recruits with great potential are trained in producing Improvised Explosive Devices (IEDs) and urban operations. These new members are motivated by their clannish culture, being relatives of terrorists, by revenge for relatives who perished in the Marawi operations, by money as they are paid ₱15,000.00 to ₱50,000.00, and by radical ideology.
(d) 48 FTFs have joined said rebel groups and are acting as instructors to the recruits. Foreign terrorists from Southeast Asian countries, particularly from Indonesia and Malaysia, will continue to take advantage of the porous borders of the Philippines and enter the country illegally to join the remnants of the DAESH/ISIS-inspired rebel groups.
(e) In November 2017, 15 Indonesian and Malaysian DAESH-inspired FTFs entered Southern Philippines to augment the remnants of the Maguid group in Sarangani province. In December 2017, 16 Indonesian DAESH-inspired FTFs entered the Southern Philippines to augment the ASG-Basilan and Maute groups in the Lanao province. In January 2018, an unidentified Egyptian DAESH figure was monitored in the Philippines.
(t) At least 32 FTFs were killed in the Marawi operations. Other FTFs attempted to enter the main battle area in Marawi, but failed because of checkpoints set up by government forces.
(g) "The DAESH-inspired DIWM groups and their allies continue to visibly offer armed resistance in other parts of Central, Western and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City." There were actually anned encounters with the remnants of said groups.
(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga and Cotabato."
(i) The Turaifie group conducts roadside bombings and attacks against government forces, civilians and populated areas in Mindanao. The group plans to set off bombings in Cotabato.
(j) The Maute Group, along with foreign terrorists, were reported to be planning to bomb the cities of Zamboanga, Iligan, Cagayan de Oro and Davao.
(k) The remaining members of the ASG-Basilan have initiated five violent attacks that killed two civilians.
(1) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula, conducted 43 acts of violence, including IED attacks and kidnapping which resulted in the killing of eight innocent civilians, three of whom were mercilessly beheaded. Nine kidnap victims are still held in captivity.
(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-based ASG to achieve their common goal of establishing a DAESH-ISIS wilayat in Mindanao. This likely merger may spawn retaliatory attacks such as IED bombings, in urban areas, particularly in the cities of Zamboanga, Isabela and Lamitan.
(n) By AFP's assessment, the ISIS' regional leadership may remain in the Southern Philippines and with the defeat of ISIS in many parts of Syria and Iraq, some hardened fighters from the ASEAN may return to this region to continue their fight. The AFP also identified four potential leaders who may replace Hapilon as emir or leader of the ISIS forces in the Philippines. It warned that the Dawlah Islamiyah will attempt to replicate the Marawi siege in other cities of Mindanao and may conduct terrorist attacks in Metro Manila and Davao City as the seat of power of the Philippine Government. With the spotlight on terrorism shifting from the Middle East to Southeast Asia following the Marawi siege, the AFP likewise indicated that the influx of FTFs in the Southern Philippines will persist. The AFP further referred to possible lone-wolf attacks and atrocities from other DAESH-inspired rebel groups in vulnerable cities like Cagayan de Oro, Cotabato, Davao, General Santos, Iligan and Zamboanga.
The rising number of these rebel groups, their training in and predilection to terrorism, and their resoluteness in wresting control of Mindanao from the government, pose a serious danger to Mindanao. The country had been witness to these groups' capacity and resolve to engage in combat with the government forces, resulting in severe casualties among both soldiers and civilians, the displacement of thousands of Marawi residents, and considerable damage to their City. In a short period after the Marawi crisis was put under control, said rebel groups have managed to increase their number by 400, almost the same strength as the group that initially stormed Marawi. Their current number is now more than half the 1,010 rebels in Marawi which had taken the AFP five months to neutralize. To wait until a new battleground is chosen by these rebel groups before We consider them a significant threat to public safety is neither sound nor prudent.
(o) Furthermore, in 2017 alone, the BIFF initiated 116 hostile acts in North Cotabato, Sultan Kudarat and Maguindanao, consisting of ambuscade, firing, arson, IED attacks and grenade explosions. 66 of these violent incidents were committed during the martial law period and by the AFP's assessment, the group will continue to inflict violence and sow terror in central Mindanao.
(p) In 2017, the ASG, which is the predominant local terrorist group in the Southern Philippines based in Tawi-Tawi, Sulu, Basilan and Zamboanga, with its 519 members, 503 firearms, 66 controlled barangays and 345 watch-listed personalities, had perpetrated a total of 13 acts of kidnapping against 37 individuals, 11 of whom (including 7 foreigners) remain in captivity. Their kidnap-for-ransom activities for last year alone have amassed a total of ₱61.2 million.
(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 guerilla 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.
(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, landmine/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. 59 incidents of arson committed by the Communist rebels against business establishments in Mindanao last year alone destroyed ₱2.378 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 ₱2.6 billion.
(s) Among the most significant attacks by the communist rebels on business establishments took place in April and May 2017 when they burned the facilities of Lapanday Food Corporation in Davao City and those of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental, which resulted in losses amounting to ₱l.85 billion and ₱l09 million, respectively. According to the AFP, business establishments in the area may be forced to shut down due to persistent NPA attacks just like in Surigao del Sur.
(t) By AFP's calculation, the aforesaid rebel groups (excluding the 400 newly recruited members of the Dawlah Islamiyah) are nearly 2, 781- men strong, equipped with 3,211 firearms and control 537 barangays in Mindanao.48 (Emphasis supplied.)
These events and circumstances, while worthy of severe condemnation, do not show the existence of an actual rebellion in a theater of war. At most, as I stressed earlier, these indicate the threat of imminent danger brought about by the reorganization, consolidation, recruitment and reinforcement activities, as well as isolated planned attacks undertaken by various armed groups.
Verily, in the absence of an armed public uprising which imperils the operation of the civil government, a declaration of martial law or any extension thereof necessarily fails the test of sufficiency, as such absence negates not only the existence of an actual rebellion, but also refutes the respondents' assertion that said declaration or extension is necessitated by the requirements of public safety. It is settled that the imminent danger of a rebellion, assuming one exists, cannot serve as sufficient basis for the proclamation of martial law; perforce, the threatened rebirth of a rebellion which the law considers dead cannot, with more reason, justify an extension thereof.
The continued implementation of
martial law without sufficient basis
constitutes a violation of due process.
There appears to be no right more fundamental in a modem democracy than the right to due process. In White Light Corp. v. City of Manila49 (White Light), the Court explained how the concept of due process must be understood, thus:
Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.
The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application.50 (Emphasis supplied)
In essence, the right to due process had been specifically adopted by the framers of the Constitution to protect individual citizens from the abuses of government. The importance that the Constitution ascribes to the right to due process is clear. As well, the need to afford primacy to due process in the resolution of this Petition is evident, if not compelling.
To recall, martial law operates to grant the AFP jurisdiction over civilians when and where the civil government is unable to function as a consequence of an actual rebellion or invasion. As exhaustively discussed, the imposition of martial law operates as a matter of necessity.51 The conditions necessary to authorize its imposition are not only fixed but also exacting, for the imposition of martial law constitutes an encroachment on the life, liberty and property of private individuals.
To me, this is the significance of this case: as earlier stated, the imposition of martial law in the absence of the exigencies justifying the same reduces such extraordinary power to a mere tool of convenience and expediency. The baseless imposition of martial law constitutes, in itself, a violation of substantive and procedural due process, as it effectively bypasses and renders nugatory the explicit conditions and limitations clearly spelled out in the Constitution for the protection of individual citizens.
The Court must disabuse itself of the notion that martial law is required to quell the rebellion, or to empower the military and the police to engage the lawless elements in Mindanao. The Executive is fully empowered to deploy the armed forces as necessary to suppress lawless violence, and even rebellion, whether actual or imminent, without martial law. Martial law is an emergency governance response that is directed against the civilian population - 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 should view the pressing question of whether or not there was sufficient basis to extend Martial Law.
To stress, the Court's function in a Section 18 review is to be an avenue for the restoration of the normal workings of government and the enjoyment of individual liberties should there be a showing of insufficient factual basis.52 A ruling that sanctions the extension of martial law as a matter of expediency defeats this function and stands as a danger to public safety in itself, for it jeopardizes, for the sake of convenience, the fundamental freedoms guaranteed by the Bill of Rights - that from warrantless arrests and searches, without prior determination of probable cause.53
To be sure, what fans the flames of rebellion, whether a lasting peace is achievable in Mindanao, whether the military option is the way to address the violence in Mindanao - these are questions that can be debated ad nauseum. Who the so-called enemies of the Republic are and who and what their targets may be will certainly be the subject of endless speculation. At present, there are the Mautes, BIFFs, ASGs, NPAs, and other armed groups. There may be others which have not been identified by the military.
Without doubt, the threats to the country's internal and external peace and security are incessant and always present. Armed hostilities in all the islands of the country exist and will continue to exist. There is as well the specter of terrorism throughout the world.
And yet, in the face of all these, what should not be forgotten, overlooked or considered trivial is that the present Constitution has excised "imminent danger" from its martial law provision. What is required by the Constitution is actual rebellion or invasion for martial law to be declared or to persist. The respondents have not presented proof of actual rebellion, or any ongoing armed uprising between the government's armed forces and any of the so-called rebel groups, in any part of Mindanao. Even in Marawi City, the actual rebellion there no longer exists. To be sure, the reconstruction and rehabilitation of Marawi is already underway. The respondents' proof, consisting of the presence of "remnants" of the Maute group that are carrying on recruitment and training of new forces, financial and logistical build-up, consolidation of forces, and isolated attacks, as well as the increase in the Basilan-based ASG's manpower with its newly recruited members undergoing trainings in tactics, marksmanships and bombing operations, may present an "imminent danger" situation - but they do not rise to meet the Constitution's conditions.
In the end, as the country grapples with all these conflicts, it cannot fall into the slippery slope of expediency as the standard with which to attempt to solve these problems. No matter how beneficial or preferable the psychic effects the state of martial law may have upon government officials and the population at large, it cannot be wielded in the absence of the conditions required by the Constitution for its imposition. In the end, the fundamental law that binds all citizens of this country is the Constitution - one that demands public safety and necessity as basis for curtailing fundamental Constitutional freedoms. That is what the Constitution mandates. That, in turn, points the Court to where its duty lies - to ensure that the true state of facts is made known, that is, that the rebellion has not persisted, and that public safety does not require the extension anymore.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos. 235935, 236061, 236145, and 236155, and DECLARE INVALID AND UNCONSTITUTIONAL Joint Resolution No. 4 of the Senate and the House of Representatives dated December 13, 2017, for failure to comply with Section 18, Article VII of the 1987 Constitution.
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
Footnotes
1 Hitler, A. & Murphy, J. V. (1981), Mein Kampf Retrieved from http://gutenberg.net.au/ebooks02/0200601. txt.
2 G.R. Nos. 231658, 231771 & 231774, July 4, 2017 [En Banc, Per J. Del Castillo].
3 Id. at 3.
4 Id. at 51.
5 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 640 (2000) [En Banc, Per J. Kapunan].
6 J. Caguioa, Dissenting Opinion, Lagman v. Medialdea (Resolution), G.R. Nos. 231658, 231771 & 231774, December 5, 2017.
7 David v. Macapagal-Arroyo, 522 Phil. 705, 781 (2006) [En Banc, Per J. Sandoval-Gutierrez].
8 149 Phil. 547 (1971) [Per C.J. Concepcion].
9 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.
10 320 Phil. 481 (1995).
11 Id. at 489.
12 Letter dated December 8, 2017, Annex "C" of the Lagman Petition.
13 On October 17, 2017, President Duterte already declared that Marawi is free from "terrorist influence," as military operations continue to ensure that all terrorists have been flushed out. This declaration was made a day after Isnilon Hapilon and Omar Maute were killed. The military clarified that the war is not yet over but it will only take a "matter of days." Article retrieved from CNN Philippines: <http://cnnphilippines.com/news/2017 /10/17 /Marawi-liberation-Duterte.html.>
14 In June 2017, both Malacafiang and AFP claimed that the BIFF attack in Pigkawayan, North Cotabato during that time had no connection to the rebellion in Marawi. Presidential spokesman Ernesto Abella dismissed the attack as a mere attempt to recover from more than two weeks of setbacks from ongoing military operations of the Army's 6th Infantry Division. Captain Arvin Encinas, Public Affairs Chief of the 6th Infantry Division said that they doubt the capability of the BIFF to proceed to areas far from central Mindanao to sow terror. Article retrieved from Philstar: <http://www.beta.philstar.com/headlines/2017 /06/23/1713103/biff-attack-not-connected-marawisiege- palace-military>.
15 On October 23, 2017, DND Secretary Lorenzana announced the termination of all combat operations against Daesh-inspired Maute-ISIS group in Marawi after the military killed the last remaining local and foreign terrorists in the city. He said that there are no more militants in Marawi City. Article retrieved from CNN Philippines: <http://cnnphilippines.com/news/2017/10/23/Marawi-crisis.html>.
On November 3, 2017, Major Gen. Restituto Padilla, AFP spokesperson, in a press briefing held in the Palace insisted that there was no premature declaration of Marawi City's liberation from terrorists despite the presence of a small number of stragglers in the war-torn city. He said that the declaration was made when the stragglers in Marawi no longer have bearing to the security in the area, "they are leaderless, they have no direction, they are merely fighting for survival." Article retrieved from Inquirer: <http://news info. inquirer.net/942686/afp-no-premature-declaration-of-l iberation-in-marawi- afp-marawi-padi lla-stragglers>.
16 On January 8, 2018, Secretary of National Defense (SND) Lorenzana ordered the troops to prepare for a repeat of the Marawi siege in "another city" in the Philippines. Article retrieved from Rappler: <https://www.rappler.com/nation/ 193155-Jorenzana-warning-marawi-martial-law>.
SND Lorenzana said that rebellion remains in Mindanao and that martial law will be necessary to quell it. He also said that the main purpose of the extension is to eradicate the ISIS threat in the Philippines. Article retrieved from GMA: <http://www.gmanetwork.com/news/news/nation/638944/lorenzana-gov-t-verifying-report-onpresence- of-foreign-terrorists-in-mindanao/story/>.
17 SND Lorenzana argued that there is a "continuing rebellion". He said that "[i]t is the belief of the armed forces and the police that there is a continuing reorganization of rebellious forces." Article retrieved from Rappler: <https://www.rappler.com/nation/193155-lorenzana-warning-marawi-martiallaw>.
18 Leonor D. Boado, NOTES AND CASES ON THE REVISED PENAL CODE 422 (2012).
19 See Umil v. Ramos, 279 Phil. 266, 294-295 (1991) [En Banc, Per Curiam].
20 Lacson v. Perez, 410 Phil. 78 (2001) [En Banc, Per J. Melo].
21 J. Feliciano, Concurring and Dissenting Opinion, Lacson v. Perez, id. at 109.
22 J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774, July 4, 2017, pp. 20-21.
23 Resolution of Both Houses No. 4 dated December 13, 2017.
24 Memorandum for Respondents, p. 38.
25 Fr. Bernas, during the deliberations of the Constitutional Commission. II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 494 (1986).
26 Herrera v. Alba, 499 Phil. 185, 202 (2005) [First Division, Per J. Carpio].
27 Supra note 10.
28 See Venturina v. Sandiganbayan, 271 Phil. 33, 39 (1991) [En Banc, Per J. Fernan].
29 Ponencia, pp. 41-42, citing AFP's "briefing" Narrative (January 17, 2017 Oral Arguments), pp. 6-7.
30 WHEREAS, Mindanao has had a long and complex history of lawless violence perpetrated by private armies and local warlords, bandits and criminal syndicates, terrorist groups, and religious extremists; WHEREAS, in recent months, there has been a spate of violent and lawless acts across many parts of Mindanao, including abductions, hostage-takings and murder of innocent civilians, bombing of power transmission facilities, highway robberies and extortions, attacks on military outposts, assassinations of media people and mass jailbreaks;
WHEREAS, the valiant efforts of our police and armed forced to quell this armed lawlessness have been met with stiff resistance, resulting in several casualties on the part of government forces, the most recent of which was the death of 15 soldiers in a skirmish with the Abu Sayyaf Group in Patikul, Sulu on 29 August 2016;
WHEREAS, on the night of 2 September 2016, at least 14 people were killed and 67 others were seriously injured in a bombing incident in a night market in Davao City, perpetrated by still unidentified lawless elements;
WHEREAS, the foregoing acts of violence exhibit the audacity and propensity of these armed lawless groups to defy the rule of law, sow anarchy, and sabotage the government's economic development and peace efforts;
WHEREAS, based on government intelligence reports, there exist credible threats of further terror attacks and other similar acts of violence by lawless elements in other parts of the country, including the metropolitan areas;
31 Lagman v. Medialdea, supra note 2.
32 Lagman v. Medialdea, supra note 2, at 36-37, 52.
33 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 470 (1986).
34 Id. at 476-477.
35 Id. at 412.
36 Supra note 5, at 642-643.
37 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).
38 I RECORD OF THE CONSTITUTIONAL COMMISSIO" PROCEEDINGS AND DEBATES, pp. 773-774 (1986).
39 J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 22.
40 Id. at 17.
41 Lansang v. Garcia, supra note 8, at 592.
42 Memorandum for Petitioner Rosales, p. 17.
43 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 412 (1986).
44 Lagman v. Medialdea, supra note 2.
45 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 401-402 (1986).
46 TSN, January 16, 2018, pp. 149-153.
47 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 412 (1986).
48 Ponencia, pp. 50-54.
49 596 Phil. 444 (2009) [En Banc, Per J. Tinga].
50 Id. at 461-462.
51 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 412 (1986).
52 J. Caguioa, Dissenting Opinion, Lagman v. Medialdea (Resolution), supra note 6, at 8.
53 J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 22, at 22.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
VELASCO, JR., J.:
I adhere to the dismissal of the petitions and concur with the declaration of Resolution of Both Houses No. 4 as constitutional. I would, however, like to make some additional observations in connection with my concurrence.
At the threshold of this opinion, I do not find it amiss to note that the Martial Law in Mindanao was extended for the first time up to December 31, 2017. And yet, not one of the petitioners questioned the validity of that extension. This neglect now estops the petitioners from questioning the basis for the presently assailed extension since it is merely a continuation of the extended Martial Law covered by Proclamation No. 216.
But be that as it may, in Lagman v. Medialdea,1 this Court found that rebellion exists in Mindanao and that public safety requires the exercise of the Martial Law powers. Thus, it concluded that Proclamation No. 216, declaring Martial Law in the region, has sufficient factual basis. This Court held:
... [T]he following facts and/or events were deemed to have been considered by the President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself:
xx xx
After the assessment by the President of the aforementioned facts, he arrived at the following conclusions, as mentioned in Proclamation No. 216 and the Report:
1) The Maute Group is "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."
2) "[L]awless armed groups have taken up arms and committed public uprising against the duly constituted government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a whole."
3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives."
4) "These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao."
5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government."
6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments."
7) "Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from the city is likewise hindered."
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of the entire Island of Mindanao."
9) "Considering the networkand alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity."
Thus, the President deduced from the facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus.
A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists. 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.2
Even petitioners at bar, as properly observed in the ponencia, concede the existence of rebellion that led to the declaration of Martial Law under Proclamation No. 216.3 The core of petitioners' contention is confined merely to the propriety of the further extension of the Martial Law in Mindanao. In substantiating their argument, however, petitioners neglect that rebellion is a continuing crime, the ultimate goal of which is to overthrow the government. The nature of rebellion as a continuing crime has often been repeated by this Court. In Parong v. Enrile,4 this Court characterized rebellion as a continuing offense, viz:
The last argument of petitioner, namely that the detainees were not caught in flagrante delicto and therefore the arrest was illegal was refuted in the Comment thus: "Again petitioner simply misses the point. As this Court correctly observed, the crimes of subversion and rebellion are continuing offenses. Besides this point involves an issue of fact."
A similar ruling was made in Umil v. Ramos5 where this Court observed that:
. . . . [H]e (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:
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 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.6
Further, while rebellion is the crime of the masses or multitudes, it is not perpetrated in one crowd action or in a single battle. And while the crime of rebellion consists of many acts, involving a vast movement of men and a complex net of intrigues and plots,7 these acts are not usually committed in a single instance. Rather, rebellion is pursued and committed in sporadic crimes-murders, kidnappings, arsons, sabotages, raids, hit-and-run tactics, and small skirmishes with the military-mostly by a small group of combatants by what is termed as guerilla warfare.
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.
More importantly, the Armed Forces of the Philippines (AFP) has sufficiently shown that the remaining members of the Maute group, which commenced the rebellion, has not dwindled. Far from it, they have regrouped, increased in number, have been augmented by foreign terrorist fighters and have established linkages with other terrorists and rebel groups. During the oral arguments, the AFP stated thus:
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 members 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, markmanships and bombing operations at the different areas of Mount Cararao Complex, Butig, and Piagapo all of Lanao Del Sur. Recruits with high potentials 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 businessmen. 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 links with Turaifie.
On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2nd Semester.8
Consequently, the burden is upon the petitioners to prove that the rebellion has been quelled by the government forces and has ceased to exist. Petitioners, however, failed to discharge this burden. Instead, petitioners have presented nary a competent and adequate evidence that could refute the facts presented by the AFP and relied upon by the President in requesting the extension of Martial Law. Bare allegations and unfounded conclusions, without more, cannot debunk the finding of both the executive and legislative branches of the government that rebellion continues to pose a danger to the public safety in Mindanao and requires the imposition of Martial Law.
If this Court is to accord due regard to the principle of comity that should exist among the three branches of the Government, it must observe utmost restraint.9 It must not modify, much less annul, the action of the other two branches of government as embodied in the assailed Resolution of Both Houses No. 4, unless there is hard and strong evidence that the extension has no factual basis. As no such evidence was presented by the petitioners, there is nothing to offset the "presumption of constitutionality"10 of Resolution of Both Houses No. 4.
Surely, as an act of both the executive and the legislative branches, Resolution of Both Houses No. 4 has in its favor the presumption of constitutionality,11 which was explained by this Court as follows:
.... This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts. The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. This Court, however, may declare a law, or portions thereof, unconstitutional, where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, the grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain.12
The burden of proving the invalidity of this joint exercise of discretion that is the extension of Martial Law rests on those who challenge it.13 In this case, petitioners failed to present any proof, much less clear and convincing evidence, that will convince this Court beyond reasonable doubt of the nullity of the assailed Resolution.14 Hence, in the absence of the required proof of the unequivocal infraction of the Constitution committed by the President and both houses of Congress, this Court will indulge the presumption of constitutionality of the assailed Resolution of Both Houses No. 4. The validity of the extension of Martial Law embodied therein must perforce prevail.
Past experiences under Martial Law may have led the petitioners to doubt its necessity, efficacy, and the good that it may serve. However, the stark realities of the moment should temper our wariness of the Martial Law powers. We need not fear employing them when necessary for the promotion of public safety and the promotion of public welfare. After all, it is not a power that can be employed without corresponding responsibility.15 In the vein of my opinion in Lagman, Martial Law is by no means an arbitrary license conferred on the President and the armed forces. As it is borne out of necessity, so it is limited by necessity.
To assuage the fears stoked by the implementation of Martial Law, I deem it proper to restate my opinion in Lagman discussing some of the safeguards and constraints that bind the hands of the President and the military that employ the Martial Law powers:
. . . the source from which the power to proclaim Martial Law springs must be considered. Hence, if there is no Constitutional provision or statute expressly allowing an intrusion or limitation of a civil liberty, then it is not and will not be allowed.
Public defense can and should be attained without a total abrogation of all individual rights. Otherwise, "it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation." Thus, while this Court recognized in David that "arrests and seizures without judicial warrants" can be made during Martial Law, the circumstances justifying such warrantless arrests and seizures under the Rules of Court and jurisprudence must still obtain. Pertinently, Section 5, Rule 113 reads:
SECTION 5. Arrest Without Warrant; When Lawful. - A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
As the basis for the declaration of Martial Law - rebellion - is a continuing crime, the authorities may resort to warrantless arrests of persons suspected of rebellion under the foregoing provision of the Rules of Court. It must, however, be emphasized that the suspicion of rebellion upon which a warrantless arrest is made must be based on a probable cause, i.e., the ground of suspicion is supported by personal knowledge of facts and circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person sought to be arrested has "committed or is actually committing" the crime of rebellion. Thus, parenthetically, the general arrest orders must be issued by the Armed Forces on the basis of probable cause. Alternatively, it must be shown that the person to be arrested was caught in flagrante delicto or has committed or is actually committing an overt act of rebellion or any other offense in the presence of the arresting officer.
In sustaining an arrest without a judicial warrant, Justice Holmes, in Moyer v. Peabody, ratiocinated that the "public danger warrants the substitution of executive process for judicial process." However, I subscribe to the position that even during Martial Law, the jurisdiction of and inquiry by the courts are merely postponed, not ousted or superseded. Hence, the same tests that would be applied by the civil courts in an inquiry into the validity of a government action must be applied by the military during a Martial Law.
In line with this, searches and seizures without judicial warrants can only be had in the following cases: (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); (6) search incidental to a lawful arrest; (7) exigent and emergency circumstance; and (8) search of vessels and aircraft, where, again, probable cause exists that an offense has been committed and the objects sought in connection with the offense are in the place sought to be searched.
In the restriction of the freedom of speech and of the press, the military must still be guided by the clear and present danger test - that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the military has a right to prevent. Thus, the military can prohibit the dissemination of vital information that can be used by the enemy, e.g., they can ban posts on social media if there is a clear and present danger that such posts will disclose their location. The same test, the presence of clear and present danger, governs the power of the military to disperse peaceable assemblies during Martial Law. As this Court held, tolerance is the rule and limitation is the exception. Otherwise stated, in the absence of clear and present danger, the military is bound by the rules of maximum tolerance under Batas Pambansa Blg. (BP) 880, otherwise known as the "The Public Assembly Act of 1985."
As to the "take-over of news media" mentioned in David, Section 17, Article XII of the 1987 Constitution states that: "In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest." Prescinding therefrom, this Court, in Agan, Jr. v. Philippine International Air Terminals Co., Inc., held that police power justifies a temporary "take over [of] the operation of any business affected with public interest" by the State in times of national emergency:
xx xx
This Court, however, has held that it is the legislature, not the executive, which is the constitutional repository of police power, the existence of a national emergency, such as a rebellion or invasion, notwithstanding. Accordingly, the power to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest can only be done whenever there is a law passed by Congress authorizing the same. This Court, in David, explained as much:
xx xx
Indeed, the military must still be guided by law and jurisprudence and motivated by good faith in the exercise of the supreme force of the State even during a Martial law. Thus, in its endeavor to restore peace and preserve the state, the military must still make proper adjustments to the safeguards of constitutional liberty under the following legislations intended to protect human rights:
1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof)
2. Republic Act No. 8371 (1he Indigenous Peoples' Rights Act of 1997)
3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002)
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)
6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
7. Republic Act No. 9372 (Human Security Act of 2007)
8. Republic Act No. 9710 (The Magna Carta of Women)
9. Republic Act No. 9745 (Anti-Torture Act of 2009)
10. Republic Act No. 9851 (Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes Against Humanity)
11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010)
12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012)
13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012)
14. Republic Act No. 10364 (Expanded Anti-Trafficking in Persons Act of 2012)
15. Republic Act No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013)
16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)
The continuous effectivity of the 1987 Constitution further provides a blueprint by which the military shall act with respect to the civilians and how it shall conduct its operations and actions during the effectivity of Martial Law.
Under Section 2, Article II of the 1987 Constitution, the "generally accepted principles of international law [remains to be] part of the law of the land." Hence, conventions and treatises applicable to non-international armed conflicts including the Geneva Conventions and its Additional Protocols continue to impose the limits on the power and discretion of the armed forces.
Notably, Common Article 3 of the Geneva Conventions enumerates acts that remain prohibited despite the hostilities. It states:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
Furthermore, the Fundamental Guarantees under Article 4 of the "Protocol Additional to the Geneva Conventions x x x relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)" remain binding:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
(a) violence to the life, health and physical or mental wellbeing of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(b) collective punishments;
(c) taking of hostages;
(d) acts of terrorism;
(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(f) slavery and the slave trade in all their forms;
(g) pillage;
(h) threats to commit any of the foregoing acts.
3. Children shall be provided with the care and aid they require, and in particular:
(a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;
(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;
(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;
(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured;
(e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.
These international commitments are incorporated into our laws not only by virtue of Section 2, Article II of the 1987 Constitution, but also by the domestic legislations previously enumerated.
Without a doubt, state agents - the members of the armed forces - who abuse their power and discretion under the proclaimed Martial Law and thereby violate their duty as the "protector of the people and the State" are criminally and civilly liable. And here lies the ultimate safeguard against the possible abuses of this emergency power - the ultimate responsibility of the officers for acts done in the implementation of Martial Law. To whom much is given, much will be required.
In view of the foregoing, I vote to DISMISS the petitions.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1 G.R. Nos. 231658, 231771 & 231774, July 4, 2017.
2 Emphasis and underscoring supplied.
3 See pp. 29-31 of the ponencia.
4 222 Phil. 170, 180 (1985).
5 279 Phil. 266-344 (1991).
6 Emphasis and underscoring supplied.
7 People v. Dasig, G.R. No. 100231, April 28, 1993.
8 AFP's briefing presented during the January 17, 2018 Oral Arguments, pp. 6-7.
9 Tolentino v. Secretary of Finance, G.R. Nos. 115455 etc., August 25, 1994.
10 See Ermita-Malate Hotel and Motel Operations Association, Inc. v. City Mayor of Manila, 128 Phil. 473-484 (1967).
11 Cawaling, Jr. v. Commission on Elections, 420 Phil. 524-537 (200l).
12 Id. Emphasis supplied.
13 Spouses Lim v. People, 438 Phil. 749-756 (2002).
14 See also Board qfOptometry v. Colet, 328 Phil. 1187-120 (1996).
15 Martin v. Mott, 12 Wheat, 19 (25 U.S.); Vanderheyden v. Young, 11 Johns., N.Y., 150, cited in Barcelonav. Baker, Jr., 5 Phil. 87-120 (1905).
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
LEONARDO-DE CASTRO, J.:
I concur with the Decision penned by the Honorable Justice Noel Gimenez Tijam dismissing the consolidated petitions which assail the constitutionality of Resolution No. 4 adopted on December 13, 2017 by the Senate and the House of Representatives in joint session, resolving "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 a period of one (1) year from January 1, 2018 to December 31, 2018."
However, for the same reason that I adduced in my Separate Concurring Opinion in the case of Lagman v. Medialdea,1 I wish to restate here that a special civil action such as a petition for certiorari is one of the appropriate proceedings to question the factual basis of a declaration of martial law or the suspension of the writ of habeas corpus or the extension of such declaration and/or suspension. In the said Separate Concurring Opinion I stated:
As for concerns that a petition for certiorari, prohibition or habeas corpus imposes procedural constraints that may hinder the Court's factual review of the sufficiency of the basis for a declaration of martial law or the suspension of the privilege of habeas corpus, these may all be addressed with little difficulty. In the hierarchy of legal authorities binding on this Court, constitutional provisions must take precedence over rules of procedure. It is Section 18, Article VII of the 1987 Constitution which authorizes the Court to review factual issues in order to determine the sufficiency of the factual basis of a martial law declaration or a suspension of the privilege of the writ of habeas corpus and, as discussed above, the Court may employ the most suitable procedure in order to carry out its jurisdiction over the issue as mandated by the Constitution. Time and again, the Court has stressed that it has the inherent power to suspend its own rules when the interest of justice so requires.
The Court should be cautious that it does not take a position in these consolidated cases that needlessly restricts our people's judicial remedies nor carelessly clips our own authority to take cognizance of the issue of constitutional sufficiency under Section 18, Article VII in any appropriate action that may be filed with the Court. Such would be antagonistic to the clear intent of the framers of the 1987 Constitution to empower our citizens and the Judiciary as a vital protection against potential abuse of the executive power to declare martial law and suspend the privilege of the writ of habeas corpus. (Citation omitted.)
Joint Resolution No. 4 of both Houses of Congress, implements the provision of Section 18, Article VII of the Constitution which vests upon the Congress the power to extend the presidential proclamation of martial law as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied.)
The above-quoted provision of Section 18, Article VII unequivocally empowers Congress, upon the initiative of the President, to extend the proclamation of martial law or the suspension of the writ of habeas corpus under the following conditions: (1) the invasion or rebellion shall persist or continue; (2) the public safety requires it; and (3) the extension is decided, by a joint majority vote of Congress in a regular or special session.
Regarding the first two requirements to justify the extension of said proclamation or suspension, it is appropriate to reiterate my disquisition in my Separate Concurring Opinion in Lagman, to wit:
The concept of rebellion in our penal law was explained in the leading case of People v. Hernandez, where the Court ruled that the word "rebellion" evokes, not merely a challenge to the constituted authorities, but, also, civil war, on a bigger or lesser scale, with all the evils that go with it; and that all other crimes, which are committed either singly or collectively and as a necessary means to attain the purpose of rebellion, or in connection therewith and in furtherance thereof, constitute only the simple, not complex, crime of rebellion. The Court also underscored that political crimes are those directly aimed against the political order and that the decisive factor in determining whether a crime has been committed to achieve a political purpose is the intent or motive in its commission.
While rebellion is considered as an act of terrorism under the law, the latter can be used to achieve a political end, such as removing from allegiance to the State any part of the national territory or overthrowing the duly constituted authorities. Even so, such lawless elements engaged in terrorism will never acquire any status recognized under International Humanitarian Law. Yet, acts of terrorism may be taken into account in the context of determining the necessity for a declaration of martial law within our constitutional framework.
Plainly then, rebellion can be committed through an offense or a violation of any special law so long as it is done as necessary means to attain, or in furtherance of, the purpose of rebellion. In Ponce Enrile v. Amin, the Court held that the offense of harboring or concealing a fugitive, or a violation of Presidential Decree No. 1829, if committed in furtherance of the purpose of rebellion, should be deemed to form part of the crime of rebellion instead of being punished separately. The Court explained:
All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes in themselves. Thus:
"This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. x x x" (Citing People v. Hernandez)
The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping, etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.
In his dissenting opinion in Fortun, Justice Velasco states that the Constitution does not require precision in establishing the fact of rebellion. In support of this, he cites an excerpt :from the Brief of Amicus Curiae Fr. Joaquin Bernas, S.J., as follows:
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.
What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand of public safety are inseparably entwined. But whether there exists a need to take action in favour of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements. Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the imposition of martial law, the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction. Such decision involves the verification of factors not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing martial law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier jurisprudence were reluctant to override the executive's judgment.
In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far from different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution. x x x.2 (Emphasis supplied; citation omitted.)
I also cited the case of Aquino v. Ponce Enrile,3 where the Court expounded on the sophisticated and widespread nature of a modern rebellion, which has now even exacerbated with the advancement of technology. Aquino relevantly discussed:
It [rebellion] does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence - all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.
Rebellion in contemporary times has acquired a graver complexion. In Section 3(b) of Republic Act No. 9372, the "Human Security Act of 2007," rebellion is considered as an act of terrorism. Acts of terrorism can be directed towards the attainment of political objectives just as in the case of rebellion namely, to remove the allegiance to the State of any part of the national territory or to overthrow the duly constituted authorities. It is within the context of the ever increasingly ominous global threat posed by terrorism to national sovereignty and public safety that the sufficiency of the factual grounds invoked by the President and sustained by Congress must be evaluated by the Court. Particularly, the factual basis is encapsulated in the preambulatory clause of Joint Resolution No. 4 of Congress quoted below:
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but neverthess reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula remain a serious security concern; and last, the new People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule[.]
There is evident constitutional basis to sustain the declaration of martial law and the suspension of the privilege of the writ of habeas corpus as well as their extension outside of the existence of or the absence of a "theater of war" where civilian authorities are unable to function. This is found in Section 18, Article VII of the Constitution which pertinently provides that "a state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of civil courts, or legislative assemblies, nor authorize the conferment of jurisdiction and military courts and agencies over civilians where civil courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ."
Furthermore, it should be stressed that Congress is empowered by the aforecited Section 18, Article VII to determine the period of extension of the martial law proclamation or suspension of the privilege of the writ, in like manner that it can exercise its power to revoke such proclamation or suspension. Thus, both the aforesaid revocation and extension shall be done by the "Congress, voting jointly, by a vote of at least a majority or all its Members in regular or special session."
The underlying reason articulated in the course of the deliberation of the 1986 Constitutional Commission of the manner of voting is to avoid the possibility of deadlock and to facilitate the process of revocation.4 Presumably, the Constitutional Commission adopted the same manner of voting for the extension of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus for the same reason, that the Congress may with facility and without the possibility of a stalemate decide on the said extension.
The ponencia of the Honorable Justice Noel Gimenez Tijam has detailed the sufficient factual bases undeniably demonstrating that rebellion persists and that public safety requires the extension of the declaration 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) year from 1 January 2018 to 31 December 2018.
Both the Senate and the House of Representatives decisively resolved to extend Presidential Proclamation No. 216 by two hundred forty (240) affirmative votes. The collective decision of the Executive and the Legislative Branches of the Government to extend for one (1) year the said proclamation, which was arrived at through a constitutionally mandated process can be the long awaited strong political will that will restore the elusive peace and promote prosperity in the whole of Mindanao.
Accordingly, I vote to DISMISS the petitions in G.R. Nos. 235935, 236061, 236145 and 236155.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Footnotes
1 G.R. No. 231658, July 4, 2017.
2 Id.
3 158-A Phil. 1, 48-49 (1974).
4 Padilla v. Congress of the Philippines, G.R. No. 23 I 671, July 25, 2017.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
I concur with the findings and conclusions of the ponencia upholding the constitutionality of Resolution of Both Houses No, 4, which extended the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao from January 1 to December 31, 2018.
In the earlier case of Lagman v. Medialdia,1 the Court upheld the constitutionality of Proclamation No, 216, declaring a. state of martia1 law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao. The Court, in that case, found that "the parameters for the declaration of martial law and suspension of the privilege of the writ of habeas corpus [i.e. 1) actual rebellion or invasion; and 2) public safety requirement] have been properly and fully complied with."2 Hence, the Court ruled that, "Proclamation Ng. 216 has sufficient factual basis, there being probable cause to believe that rebellion exists, and that public safety requires the martial law declaration and the suspension of the privilege of the writ of habeas corpus."3
Using the same parameters as in Lagman, the Court is now tasked to review the sufficiency of the factual bases of 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 the whole of Mindanao from January 1 to December 31, 2018, to wit:
First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion;
Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao tmd North Cotabato;
Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern;
and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;4
Existence of Actual Rebellion
In Lagman, the Court found that actual rebellion existed in the whole of Mindanao. In this case, the question is whether the same rebellion still exists.
I am convinced that it does as the ''liberation of Marawi" did not end the rebellion, Marawi, as found by the Court in Lagman, was only the staging point of the rebellion as the target was the whole of Mindanao.5 The fact that the surviving members of the Maute group have not surrendered and are even recruiting new members despite the death of Hapilon and the Maute brothers clearly proves that the rebellion persists. The violent incidents perpetrated by the Bangsamoro Islamic Freedom Fighters (BTFF) in Mindanao likewise negate petitioners' position that the rebellion has been quelled by the "liberation of Marawi." Thus, I believe that while, the government may have won the battle in Marawi, the war against the rebellion is still ongoing.
Moreover, I agree with the ponencia that the inclusion of the New Peoples Army (NPA) as basis for the further extension will not render void Resolution of Both Houses No. 4. Although the NPA group was not expressly included in Proclamation No. 216 as one of the "other rebel groups," their attacks may nevertheless be used as factual bases for the extension considering that these contributed to the violence and even aggravated the situation in Mindanao.
To put things in perspective, let us say Country A invades Mindanao and immediately thereafter, the President issues a proclamation declaring martial law in the entire Mindanao. After two weeks, Country B then decides to join the war in the hope of taking over a portion of Mindanao. Under the circumstances, is the President still required to make another proclamation for the invasion by Country B? Obviously not - as it would be superfluous and impractical considering the President already declared martial law to stop the invasion of Mindanao. So, instead of promulgating a separate declaration of martial law, the President may just ask Congress for an extension based on the original invasion, which continues to exist, with the invasion by Country B as an additional factual basis for the extension.
In this case, the attacks carried out by the NPA are but additional factual bases which may be used to support the findings of the President and the Congress that the rebellion persists in the whole of Mindanao. In fact, whether or not the NPA group was used as a basis for the extension does not change the fact that the rebellion struted by Hapilon and the Maute brothers continues to exist in Mindanao.
Theater of War
Citing portions of the deliberations of the framers of the 1987 Constitution, petitioners Rosales, et al. and Monsod, et al. advance the theory that for martial law to be valid, it must be in the context of an actual "theater of war" due to a rebellion or invasion.6 Under this theory, martial law can only be declared in an area where there is actual armed conflict.7
There is, however, nothing in the deliberations to support their theory. Quoted below are the pertinent portions of the deliberations;
SR. TAN: Yes. Thank you.
The other question is also on the same section. Would martial law automatically give the President the power of legislation through decrees?
MR. SUMULONG: We will ask Commissioner Concepcion to answer.
MR. CONCEPCION: It is stated in Section 15;
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. . .
The Commissioner’s question is whether martial law decreases or increases the power of the President?
SR. TAN: Decreases?
MR. CONCEPCION: Not necessarily.
SR. TAN: So, what specific power is necessary before the President can proclaim martial law?
MR. CONCEPCION: In general, in case of invasion, the President would have all the powers of a general in the army.
MR. SUMULONG: We ask Commissioner Bernas to answer.
FR. BERNAS: That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies ...
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the com,1itution; therefore, it does not suspend the principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional. concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.
SR. TAN: Thank you.8
xx xx
MR. FOZ: Thank you, Madam President.
May I go to the next question? This is about the declaration of martial law or the suspension of the privilege of the writ of habeas corpus on page 7, on the second to the last paragraph of Section 15. Is it possible to delete the clause "where civil courts are able to function"? In the earlier portion of the same sentence, it says, "nor supplant the functioning of the civil courts x x x" I was just thinking that if this provision states the effects of the declaration of martial law - one of which is that it does not supplant the functioning of the civil courts- I cannot see how civil courts would be unable to function even in a state of martial law.
MR. SUMULONG: May we refer that interpellation to Commissioner Bernas?
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 opened 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 Marco$ 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.
MR. FOZ; Thank you, Madam President.9
It appears that Father Bernas mentioned the concept of the "theater of war" twice during the deliberations,
First was in answer to the question of"[whether] martial law automatically give[s] the President the power of legislation through decrees,"10 to which Father Bernas answered in the negative. He explained that, "the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of [Marcos] martial law."11 Simply put, Father Bernas mentioned the ''theater of war" only to make it clear that under the 1987 Constitution, a declaration of martial law does not automatically grant the President the power to legislate, as the 1987 Constitution expressly provides that "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."12
Second was in response to the suggestion of deleting the phrase "where civil courts are able to function." Father Bernas rejected this suggestion as the phrase delimits the effects of martial law so that the "practice under the Marcos regime where military courts were given jurisdiction over civilians"13 would not happen again. He explained that during martial law, the Commander-in-Chief has no power to confer jurisdiction on military courts and agencies over civilians, except in a "theater of war" or in the area where there is actual war because of which the civil courts are unable to function.
Considering that the framers of the 1987 Constitution only mentioned the term "theater of war" in the context of describing and defining the powers of the President during martial law, it is highly specious for petitioners to use the same to support its theory. In fact, the Court in Lagman quoted the same portions of the deliberations only to describe what happens during a state of martial law. Thus, contrary to the view of petitioners, there is nothing in the 1987 Constitution that limits the scope of martial law to the actual "theater of war." As the Court has declared in Lagman, the discretion to dete1mine the territorial coverage of martial law lies with the President,14 subject of course to the safeguards laid down in Section 18, Article VII of the 1987 Constitution.
Public Safety Requirement
As to the second requirement, petitioners assert that the public safety contemplated in Section 18, Article VII of the 1987 Constitution "entails a breakdown of civilian government"15 or "a vacuum in civilian authorities."16 Such assertion has no legal basis as there is nothing in the 1987 Constitution and in the records of the deliberations of the Constitutional Commission to indicate that such was the intended definition of the framers. Besides, unless technical terms are employed, words used in the Constitution should be given their ordinary meaning and as much as possible its language should be understood in its common usage.17 Thus, in Lagman, the Court defined public safety simply as one that "involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters."18
With this definition and in light of the factual circumstances indicated in the letter of the President and the Resolution of Both Houses No. 4, I believe that public safety requires the extension of martial law. Undeniably, the acts of violence committed, and being comn1itted, by the rebels in various areas in Mindanao continue to endanger the lives of the people in Mindanao.
Period of Extension
Finally, as to the period of extension, Section 18, Article VII of the 1987 Constitution states that, "upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it." The provision is clear: the determination of the period of the extension, as well as the number of extensions, lies with the Congress.
In view of the foregoing, I vote to DISMISS the Petitions and AFFIRM the constitutionality of Resolution of Both Houses No. 4.
Footnotes
1 Lagman v. Medialdea. G.R, Nos. 231658, 231771 & 231774, July 4, 2017.
2 Id.
3 Id.
4 Resolution of Both Houses No. 4, dated December 13, 2017.
5 Supra note I.
6 Memorandum for Petitioners Rosales, et al., pp. l 4-16and Memorandum for Petitioners Monsod, et al., pp. 50-54.
7 Id.
8 II RECORD, CONSTITUTIONAL COMMISSION 398 (July 29, 1986)
9 II RECORD, CONSTITUTIONAL COMMISSION 401-402 (July 29, 1986).
10 Supra note 8.
11 Id.
12 Paragraph 4 of Section l 8, Article VII of the 1987 Constitution.
13 Supra note 9 at 402.
14 Supra note I.
15 Memorandum for Petitioners Monsod, et al., pp. 51-54.
16 Memorandum for Petitioners Rosales, et al., pp. 17-19.
17 Bayan v. Zamora, 396 Phil. 623, 657 (2000).
18 Supra note 1.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
GESMUNDO, J.:
I concur with the ponencia.
There is sufficient factual basis
for extending the period of
martial law
I submit that there is sufficient factual basis to justify the extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole Mindanao for one (1) year.
Congress approved the extension of martial law pursuant to the letter dated December 8, 2017, of President Rodrigo R. Duterte (President Duterte). The said letter, in turn, was based on the letters of AFP General Rey Leonardo B. Guerrero (General Guerrero) and Secretary of National Defense Delfin Lorenzana1 (Secretary Lorenzana), which state:
The AFP strongly believes that on the basis of the foregoing assessment, the following are cited as justification for the recommended extension, to wit:
The DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;
Other DAESH-inspired and like-minded threat groups such as [the] BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga and Cotabato;
The CTs have been pursuing and intensifying their political mobilization (army, party and mass base building, rallies, pickets and demonstrations, financial and logistical build up), terrorism against innocent civilians and private entities, and guerilla warfare against [both] the security sector, and public government infrastructures;
The need to intensify the campaign against the CTs is necessary in order to defeat their strategy, stop their extortion, defeat their armed component, and to stop their recruitment activities;
The threats being posed by the CTs, ASG, and the presence of remnants, protectors, supporters and sympathizers of the DAESH/DIWM pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao;
The 2nd extension of the implementation of Martial Law coupled with the continued suspension of the privilege of the writ of habeas corpus in Mindanao will significantly help not only the AFP, but also the other stakeholders in quelling and putting an end to the on-going DAESH-inspired DIWM groups and CT-staged rebellion, and in restoring public order, safety, and stability in Mindanao; and
In seeking for another extension, the AFP is ready, willing and able to perform anew its mandated task in the same manner that it had dutifully done so for the whole duration of Martial law to date, without any report of human rights violation and/or incident of abuse of authority.2
During the oral arguments, General Guerrero presented data which justified the further extension of martial law and the suspension of the privilege of the writ of habeas corpus in the whole Mindanao, to wit:
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 area[s] of concentration.
ASG Basilan-based recruited more or less 43 new members in Basilan; more or less 250 by the Maute Group in Lanao provinces; 37 by the Maguid Group in Saranggani 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[s] as new recruits were given an amount ranging from Phpl5,000.00 to 50,000.00; and as radicalized converts.
These newly recruited members are undergoing trainings in tactics, marksmanships and bombing operations at different area 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 businessmen. 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 was historically established link[s] with Turaifie.
On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2nd Semester.3
As gleaned above, the approval of the extension of martial law in Mindanao is not arbitrary but has sufficient factual basis. It must be remembered that in Lagman v. Medialdea4 (Lagman), the Court held that there was sufficient factual basis that actual rebellion exists in Mindanao and that public safety requires martial law, particularly in Marawi where there was intensive firefighting initiated by the Maute Group. Notably, even after President Duterte declared the liberation of Marawi City on October 17, 2017, the Maute Group was still able to recruit new members and increase their number to 250 as of December 2017. Other terrorist groups in Mindanao were able to increase their memberships as well.
General Guerrero stated that the said increase in membership was due to several factors, such as the clannish culture of the groups; revenge for their fallen relatives; and financial gain ranging from ₱15,000.00 to ₱50,000.00. He also pointed out that foreigners have been joining these terrorists group in guise of businessmen or tourists, particularly the Maute Group in Lanao and Turaifie Group in Central Mindanao.
Indeed, with these factual bases, the military needs to intensify their efforts against these terrorist groups through the continued imposition of martial law. Lifting martial law would remove the leverage of the military against these terror groups during their on-going operations and would weaken the rigorous campaign against them and allow them to continuously threaten the civilian population. These facts establish a prima facie case in justifying the extension of the period of martial law and the suspension of the privilege of the writ of habeas corpus in the whole Mindanao because actual rebellion persists and public safety requires it.
The petitioners failed to impeach the factual basis and prima facie case presented by the respondents. Notably, in this sui generis petition to determine the sufficiency of the factual basis for an extension of martial law or suspension of the privilege of the writ of habeas corpus, the movants should focus on assailing the factual basis to support such declaration. Regrettably, instead of citing specific factual allegations to counter the respondents' position, the petitioners resorted to raising questions of law and even questions regarding the wisdom in extending martial law. Such issues, however, should not be raised in this present sui generis proceeding.
Rebellion as a continuing offense
As stated in Umil v. Ramos5 (Umil), a case decided under the 1987 Constitution, 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. Unlike other so-called "common" offenses, such as 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.6
It was also established in Umil that the arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing nonviolent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities.7
The Court stressed in Umil that arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing nonviolent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense.8 Consequently, even if the firefighting stopped temporarily, offenders could still be arrested by State agents if they continue to perform non-violent acts in furtherance of the rebellion, such as recruitment of members, financing of rebellious groups, or planning the next unlawful attack.
In spite of the cessation of firefighting, the crime of rebellion is continuing because the ideological base persists, which requires the repetition of the acts of lawlessness and violence until the objective of overthrowing organized government is realized. Thus, hostilities and acts of terrorism committed afterwards, pursuant to the ideological purpose, continue to form part of the crime of rebellion.
In this case, while the firefighting in Marawi City have ceased, the goal of the Maute Group to overthrow the government remains. Their continuing goal is evident in the incessant recruitment of members in the Lanao area and the financing of the rebel group. While non-violent, these acts are still considered in the furtherance of rebellion. Indeed, these acts are part and parcel of the crime of rebellion seeking to achieve their illegitimate purpose. Thus, as of December 2017, General Guerrero reported to the Court that the Maute Group has recruited a total of 250 members, a significant number capable of committing other atrocities against the civilian population.
Aside from the Maute Group, the Turaifie Group in the Cotabato Area; the Bangsamoro Islamic Freedom Fighters in Maguindanao and North Cotabato; the Abu SayaffGroup in Basilan, Sulu and Tawi-Tawi; and the New People's Army are continuing their rebellious goals through their rampant recruitment and clashes with the military. Notably, the New People's Army engaged in armed conflict with the government even though there were ongoing peace negotiations. These continued firefighting threaten the general populace in Mindanao, which affects public safety.
In the course of the oral arguments, General Guerrero stated that rebellion in Mindanao is still on-going in spite of the culmination of the Marawi siege, viz:
JUSTICE BERNABE:
Now, why is the second extension significantly longer than the first when in fact it was already publicly declared that Marawi City has been liberated from the Maute?
GENERAL GUERRERO:
As I've said, Your Honor, Marawi is just a part of the whole problem. After the liberation of Marawi, there are still other areas that we need to address.
xxx
JUSTICE BERNABE:
I mean, Marawi City had already been liberated so there is this escalating conflict already, shouldn't this diminish the public safety needed to continue with martial law over the entire Mindanao?
GENERAL GUERRERO:
The conflict in Marawi is distinct and separate from what is happening in the other parts of the area, in the Lanao, particularly. Although, as I have said, the conflict in Marawi has already been resolved but still there are some elements there that continue to operate. As I have said, we had just addressed the armed component and for as long as we have not addressed the other factors that have brought this conflict into existence they will still be able to continue to recruit other rebels and continue with the atrocities, Your Honor.
xxx
JUSTICE BERNABE:
What is the objective behind this extension of martial law, the oneyear extension? Is it still to quell the Maute-Japilon led rebellion?
GENERAL GUERRERO:
Yes ...
JUSTICE BERNABE:
Or is it generally put an end to all communist or terrorist activities in the entire Mindanao?
GENERAL GUERRERO:
The rebellion has not been quelled, Your Honor. What we have done is we have been able to resolve the Marawi conflict but the rebellion continues to exist.
JUSTICE BERNABE:
So, the objectives are both, to still quell the Maute-Japilon led Rebellion and as well as to put an end to all communist or terroristic activities?
GENERAL GUERRERO:
That is the objective, Your Honor, to address the other rebel groups.9
Certainly, with these set of facts and with the concept of rebellion as a continuing offense, there is sufficient factual basis that actual rebellion in Mindanao persists and public safety requires the extension of the period of martial law and the suspension of the writ of habeas corpus in the whole of Mindanao for a period of one (1) year, as reasonably authorized by Congress.
Current concept of rebellion
The petitioners argue that the US cases of Ex Parte Milligan10 (Milligan) and Duncan v. Kahanamoku, Sheriff11 (Duncan), which required that there must be an actual theater of war to justify the President's declaration of martial law, must be applied by the Court.
I disagree.
In Milligan, martial law was declared because there was an on-going rebellion in the Confederate states. The US Court held that martial law is the will of the commanding officer of an armed force or of a geographical military department, expressed in time of war, within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military or supreme executive chief. It was also ruled therein that the military tribunals only have jurisdiction where civil courts are not functioning. But where the civil courts are functioning and there is no need for bayonets or military aid to execute its jurisdiction, military tribunals cannot try civilians.
Similarly, in Duncan, martial law was declared because Hawaii was in an actual theater of war arising from the Japanese armed invasion on December 7, 1941 and there was, at all times, a danger of invasion in the nature of commando raids or submarine attacks. The US Court ruled therein that since the civil courts were opened later on February 24, 1944, the petitioners could not be tried by military courts under martial law.
In the case at bench, the concept of actual invasion or rebellion is not the same as that of Milligan, decided in 1866, and Duncan, decided in 1946. During those times, the actual invasion or rebellion was appreciated in the traditional sense where the enemies use bayonets, cannons, commando raids or submarine attacks and conflicts were concentrated within a specific location or state. However, during the deliberations of the present Constitution, the framers discussed the possibility of modem tactics in rebellion or invasion, to wit:
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 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 use 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 Malacañang - 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.12 (emphases supplied)
The Constitutional framers foresee the possibility that modem rebellion will 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 but would be 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 must be actual use of weapons concentrated in a single place is not the sole concept of actual rebellion envisioned under the 1987 Constitution.
Defanged Martial Law
Martial law, while it has no precise definition, is employed to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the State against actual rebellion or invasion.13 In the Philippines, the power to declare martial law rests in the hands of the President. History dictates that the 1935 and 1973 Constitutions allowed the President to exploit its power in declaring martial law due to the following reasons:
1. That the proclamation of martial law automatically suspends the privilege of the writ of habeas corpus;
2. That the President as Commander-in-Chief can promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people, and to the institution of reforms to prevent resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a world recession, inflation or economic crisis;
3. That the President, as legislator during the period of martial law, can legally create military commission or court martials to try not only members of the armed forces but also civilian offenders for specified offenses.14
Thus, when the framers of the present Constitution discussed the power of the President to declare martial law and suspend the privilege of the writ of habeas corpus, they ensured that such abuses would not be repeated. Commissioner Monsod even noted that the martial law of then President Marcos was an aberration in history and that the grounds for the imposition of martial law and suspension of the privilege were reduced, and that should a second Marcos arise, there would be enough safeguards in the new Constitution to take care of such eventuality. Accordingly, the following safeguards are now in place to limit the Chief Executive's power to declare martial law:
1. The initial declaration of martial law has a time limit of sixty ( 60) days;
2. The President is required to submit a report in person or in writing to the Congress to substantiate his declaration of martial law;
3. There is a process for its review and possible revocation of Congress;
4. There is also a review and possible nullification by the Supreme Court based on the sufficiency of factual basis;
5. The removal of the phrases "imminent danger thereof' and "insurrection" as grounds for declaring martial law;
6. 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.
7. The declaration of martial law does not automatically suspend the privilege of the writ of habeas corpus;
8. During the suspension of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
9. 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.
The numerous safety measures embodied under the present Constitution ensure that the President cannot abuse its power anymore to the detriment of the citizens. The said measures defanged martial law. As can be gleaned in Lagman, the safeguards and processes were fully operational and the declaration of martial law by President Rodrigo Duterte over the whole Mindanao was thoroughly scrutinized by Congress and the Court. In said case, the Court concluded that the President, in issuing Proclamation No. 216, had sufficient factual bases to show that actual rebellion exists and that public safety requires the declaration of martial law and suspension of the writ of habeas corpus.
During the oral arguments, it was confirmed by Commissioner Monsod, one of the petitioners, that martial law under the Constitution has been restricted, to wit:
JUSTICE BERSAMIN:
Okay, I will agree for the moment with you. But the thing is, you have a version of martial law that does not replicate the Marcos version, it is now emasculated. Is that, will you agree with that?
CHAIRMAN MONSOD:
Yes.
JUSTICE BERSAMIN:
Emasculated.
CHAIRMAN MONSOD:
Not emasculated, there's a narrowed discretion of the President because ...
JUSTICE BERSAMIN:
Narrowed, restricted to tie the hands of the President, if I may put it that way. It cannot be anymore as pervasive as the martial law that was under the 1935 Constitution because we had no other experience in martial law since that time, since that time.
CHAIRMAN MONSOD:
Yes, Your Honor.15
It was also discussed that martial law under the present Constitution is unique because it does not confer additional powers to the President, the Constitution is continuously upheld, the agencies of the government and the courts continue to function, and human rights and international humanitarian laws are still observed.16 General Guerrero also shared his view that the only benefits generated by the present declaration of martial law are the immediate arrest of the rebels;17 civilian authorities are readily compliant with the requests of the APP;18 increased military presence;19 and logistical benefit due to the increased information gathering and dissemination.20
Flexibility in Extending Martial Law
The petitions at bench also question the procedural validity of the extension of martial law. Under the Constitution, the said extension is different from the initial proclamation of martial law, to wit:
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 and underscoring supplied)
As stated above, in the initial declaration of martial law, it is the President as the Commander-in-Chief of all armed forces of the Philippines that declares martial law for a maximum period of sixty (60) days. Upon its declaration, it shall become immediately effective. It is subject to a review by Congress within forty-eight (48) from its declaration.
With respect to the extension of martial law, the last sentence of the first paragraph of Section 18 clearly states that Congress is empowered to extend the duration of martial law. The President's only role in such an extension is that he is the one who initiates it. Notably, even if the President initiates the said extension, it is not immediately effective. It is only when Congress grants the extension, after determining that invasion or rebellion persists and public safety requires it, that it becomes operational. Evidently, the power of Congress is more potent than that of the President when it comes to the extension of martial law. Stated differently, when there is an extension of the duration of martial law, the Constitution confers on Congress the authority to grant or deny it. If Congress does not find any basis to grant the requested extension, then it shall not exceed the sixty (60) day period of its initial declaration.
Congress' power to extend the proclamation of martial law is observed in the following Constitutional deliberations:
| 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, 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.21
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| MR. SUAREZ |
That is correct. I think the two of them must have to agree on the period; but it is theoretically possibly that when the President writes a note to the Congress because it would be at the instance of the President that the extension 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 be 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. |
| 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, participation of the President is there but by giving the final decision to Congress, we are also preserving the idea that the President may not revoke what Congress has decided upon. |
| MR. OPLE |
The reason for my concern, Madam President, is that when we put all of these encumbrances on the President and Commander-in-Chief during an actual invasion 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.22
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| 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.23 (emphases supplied) |
The framers of the Constitution gave Congress flexibility on the period of the declaration of martial law. It was emphasized therein that the final decision to extend the said declaration rests with Congress. Whether the President states a specific period of extension or not, Congress ultimately decides on the said period. Until it grants the extension, the sixty (60) day period of the initial declaration of martial law prevails. In effect, by becoming the granting authority, Congress limits the President's power to extend the period of martial law.
During the Constitutional deliberations, it was recognized that there are many limitations and encumbrances in the President's power to declare martial law. Commissioner Ople even raised apprehension that the encumbrances of martial law under the constitutional provision may compel the President to simply declare a revolutionary government. However, such apprehension did not prevail because the present wording of the Constitution grants Congress the ultimate authority to decide whether the period of martial law should be extended. Manifestly, there is no specific period stated in the extension of the period of martial law because the Constitution leaves it to Congress to decide the reasonable period for such an extension. In the event that the President requires more time to quell a rebellion or invasion beyond the granted period of extension, then his remedy is to ask for another extension from Congress. Manifestly, as discussed by Commissioner Concepcion, the framers also considered the possibility that there will be more than one (1) extension should the first extension be insufficient.
Thus, Congress has the prerogative to determine for itself the period of the extension of martial law. In this case, it used the flexibility granted to it by the Constitution to determine that the reasonable period of extension of martial law over Mindanao should be for one (1) year or until December 31, 2018. The petitioners cannot deny the flexibility of Congress in determining the extended period for martial law. They should have focused on assailing the sufficiency of the factual basis for extending the period of martial law. However, as discussed supra, the petitioners failed to assail the said factual basis. In the absence of compelling evidence to the contrary, the reasonable period of extension as determined by Congress must stand.
Extent of review of Congress and the Supreme Court differs
The role of Congress in granting the extension of martial law is vital. Due to the essential authority of Congress, it is proper to examine the review it can undertake to determine the propriety of granting such extension initiated by the President. It was thoroughly discussed in Lagman that the power of Congress to review a declaration of martial law is independent from that of the Court. Congress has a greater scope of review compared to the Court, to wit:
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.
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 filing 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.24
In this case, the President sent a letter dated December 8, 2017, to the Senate President and House Speaker requesting further extension of the period of martial law and the suspension of the privilege of the writ.of habeas corpus in Mindanao for an additional year. The letter contained several grounds justifying the extension.
On December 12, 2017, the AFP officials presented and explained the different justifications of the request for the extension of martial law before the Senate and the House of Representatives.25 On December 13, 2017, Congress held a joint session to discuss whether the extension of martial law in Mindanao was warranted. Each member of Congress was granted a maximum of three (3) minutes to explain his allotted time pursuant to Section 7 of Rule IV of the Joint Session of Congress.26 The said three (3) minute rule excluded the time given to resource persons. After thorough discussion and extensive debates, two hundred forty (240) members of Congress affirmed that rebellion persists and that public safety requires the further extension of martial law and the suspension of the writ of habeas corpus for one (1) year in Mindanao.
I concur with the ponencia that Congress complied with its constitutional duty to review the extension of martial law before granting the same. From the onset, the Constitutional framers intended that the procedure of review by Congress under Section 18 should be accelerated and simplified due to the pressing need of the President and the people when there is actual invasion or rebellion and public safety requires it, to wit:
|
FR. BERNAS |
I quite realize that there is this recourse to the Supreme Court and there is a time limit, but at the same time because of the extraordinary character of this event when martial law is imposed, I would like to make it easier for the representatives of the people to review this very significant action taken by the President.27 (emphasis supplied) |
The three-minute rule provided for each member of Congress to speak before the Joint Session is reasonable pursuant to the constitutional intent to accelerate the proceedings for review under Section 18. The said congressional rule even excluded the time allocated to resource speakers invited by Congress. To hold otherwise, where each member of Congress is given an unlimited time to interpolate, will no longer serve the purpose of expediently resolving the extension of martial law. Verily, as long as the members of Congress are all given equal opportunity to voice their opinions, then they can effectively review the significant action taken by the President.
Moreover, the procedure laid down by the Joint Session Rules of Congress is pursuant to its power to determine its own rules of proceedings.28 The rule-making power of Congress is a grant of full discretionary authority 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.29 Pursuant to this constitutional grant of virtually unrestricted authority to determine its own rules, the Senate or the House of Representatives is at liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication.30
Here, the petitioners failed to specify how Congress, in the joint session, violated its own rules of procedure or how the said rules were violative of the right to due process even though each member of Congress was given the opportunity to be heard. Absent any evidence of arbitrariness, the proceedings during the joint session of Congress on December 13, 2017 must be upheld. Pursuant thereto, Congress properly issued the Resolution of Both Houses No. 4,31 viz:
WHEREAS, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested 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) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution[;]"
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in- Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayaff Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with communist rule;
xxx
WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas corpus in the Whole Mindanao:
Now, therefore, be it Resolve by the Senate and the House of Represenatives in a Joint Session Assembled, To further extend Proclamation No. 216, Series of2017, 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, 2018.32
For failure of the petitioners to overcome the prima facie case establishing the factual basis presented by the respondents in necessitating the extension of the period of martial law and the suspension of the writ of habeas corpus in the whole Mindanao for one (1) year, I vote to DISMISS the consolidated petitions.
ALEXANDER G. GESMUNDO
Associate Justice
Footnotes
1 Memorandum of the OSG, pp. 4-5.
2 Id.
3 Oral Arguments- En Banc, January 17, 2018, pp. 59-60.
4 G.R. Nos. 231658, 231771 & 231774, July 4, 2017.
5 265 Phil. 325 (1990).
6 Umil v. Ramos (Resolution), 279 Phil. 266, 295 (1991).
7 Supra note 5 at 336-337.
8 Id. at 336.
9 Oral Arguments - En Banc, January 17, 2018, pp. 154-155.
10 71U.S.2 (1866)
11 327 U.S. 304 (1946).
12 Record of the Constitutional Commission Proceedings and Debates, Vol. II, pp. 412-413.
13 Duncan v. Sheriff Kahanamoku, supra note 10.
14 See Gumaua v. Espino, 185 Phil. 283 (1980); and Bernas, Constitutional Structure and Powers of Government Part I, 2010 ed., p. 473.
15 Oral Arguments - En Banc, January 16, 2018, p. 115.
16 Oral Arguments - En Banc, January 17, 2018, pp. 146-147.
17 Id. at 136.
18 Id. at 148.
19 Id. at 150.
20 Id. at 151.
21 Record of the Constitutional Commission Proceedings and Debates, Vol. II, p. 507.
22 Id. at 508-509.
23 Id. at 510.
24 Id.
25 Oral Arguments - En Banc, January 17, 2018, p. 99.
26 Petition in G.R. No. 235935, p. 17.
27 Record of the Constitutional Commission Proceedings and Debates, Vol. II, p. 494.
28 SECTION 16. Xxx
(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.
29 Pimentel, Jr. v. Senate Committee on the Whole, 660 Phil. 202, 220 (2011).
30 Spouses Dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981, 986 (2009).
31 Memorandum of the OSG, pp. 23-24.
32 Id.
The Lawphil Project - Arellano Law Foundation
SEPARATE CONCURRING OPINION
PERLAS-BERNABE, J.:
I concur.
Before the Court are consolidated petitions1 which assail the sufficiency of the factual basis of Resolution of Both Houses No. 42 dated December 13, 2017,3 that further extended 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,"5 from January 1, 2018 to December 31, 2018. Pertinent portions of this Resolution read:
WHEREAS, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested 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) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution";
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;
xx xx
WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the 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 a period of one (1) year from January 1, 2018 to December 31, 2018.
I. Parameters of Review.
At the onset, it should be pointed out that the Court's parameter of review over this case remains the same as its p.arameter of review over President Rodrigo Roa Duterte's (the President) initial proclamation of martial law, as was undertaken by this Court in the consolidated cases of Representatives Edcel C. Lagman, et al. v. Hon. Salvador C. Medialdea, Executive Secretary, et al., G.R. Nos. 231658, 231771, and 231774 (Lagman v. Medialdea).6 Section 18, Article VII of the 1987 Constitution (Section 18, Article VII) vests unto this Court special jurisdiction to review, in an appropriate proceeding filed by any citizen, not only the sufficiency of the factual basis of the proclamation of martial law, but also "the extension thereof," viz.:
Section 18. x x x.
xx xx
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. (Emphases and underscoring supplied)
In my Separate Opinion in Lagman v. Medialdea, I have explained that the term "sufficient factual basis" under Section 18, Article VII is a conceptually novel and distinct parameter of review, which should not be equated to the gauge of arbitrariness (as in the standard of grave abuse of discretion in certiorari cases) but should, instead, be construed in its generic sense - that is, adequate proof of compliance with the constitutional requisites. Thus, insofar as reviewing the President's proclamation of martial law, the parameter and its underlying considerations were summed up as follows:
[T]he parameter "sufficient factual basis" under Section 18, Article VII of the Constitution simply means that there is adequate proof to show that the President had complied with the two requisites to impose martial law. These requisites are: (1) that there exists an actual invasion or rebellion; and (2) that the public safety so requires the same.
There is adequate poof that the President complied with the first requisite if the elements of rebellion as defined in Article 134 of the RPC concur; this means that the rebellion is not merely imminent but has been actually consummated.
On the other hand, there is adequate proof that the President complied with the second requisite if it is shown that the public safety demands the imposition of martial law under a particular territorial extent; since public safety is a malleable concept, the Court should then gauge whether or not there is a reasonable need to impose martial law in light of the exigencies of the situation and concomitantly, whether its territorial extent is rationally commensurate to the said exigencies.7
Although the parameter of review remains the same, the object of review in this case is different. Here, the object of review is not the President's initial proclamation of martial law - as in Proclamation No. 216 decided in Lagman v. Medialdea - but rather, the Congress' extension of the President's martial law proclamation, as embodied in Resolution of Both Houses No. 4 dated December 13, 2017. As such, there is no reason to apply the principle of conclusiveness of judgment as respondents would suppose.8
Notably, while Congress had, in fact, earlier extended Proclamation No. 2169 through Resolution of Both Houses No. 210 dated July 22, 2017,11 the Constitution does not proscribe any limitation on either (a) the number of times an extension may be made, or (b) the duration of time for which a particular extension may be made. Thus, contrary to petitioners' postulation,12 Congress is not precluded from either extending martial law for a second time or extending martial law for a period of more than sixty (60) days.
Pursuant to Section 18, Article VII, the power to extend martial law belongs to Congress; however, the exercise of this power is "[u]pon the initiative of the President":
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
x x x x (Emphasis and underscoring supplied)
Being a power specifically conferred unto Congress, it is not bound by the recommendation of the President regarding any proposed extension; thus, it may engage in its own independent examination on the matter, and consequently, may arrive at its own reasons in deciding on whether or not to extend martial law. In this sense, Congress - being composed of the duly-elected representatives of the people - acts as a legislative body in deciding whether or not to extend martial law in our country, and necessarily, if an extension is so decided, sets the extension's terms as it deems fit.
However, as observed during the deliberations on the 1987 Constitution, Congress' decision-making process would necessarily be in consultation with the President.13 This is because it is the President who not only seeks the proclamation's extension but also ultimately possesses the information and expertise to deal with a persisting invasion or rebellion. As pointed out in Lagman v. Medialdea:
"It is for the President as Commander-in-Chief 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 does 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.14
While Congress makes the final decision, this necessary interaction between the political branches of government shows that the entire process of extending the proclamation of martial law is - as described by the Framers - a "joint executive and legislative act,"15 animated by the "principle of collective judgment."16
Meanwhile, same as reviewing the President's power to proclaim martial law, the Court acts as a check to the Congress' power to extend martial law. In the latter respect, the Court's task, upon the institution of the appropriate proceeding by any citizen, is to determine if there is sufficient factual basis to show that: (a) the invasion or rebellion still persists; and (b) public safety requires the extension. Pursuant to Section 18, Article VII of the 1987 Constitution, these two (2) requirements ought to be satisfied by Congress before it may properly decree a martial law extension.
II. Persistence of Rebellion.
In my Separate Opinion in Lagman v. Medialdea, I have discussed the unique nature of rebellion and in such light, broached how the concept of "actual rebellion" should be understood under the Constitution's martial law provision:
[I]n light of the nature of rebellion (1) as a movement, (2) as a complex net of intrigues and plots, (3) as a continuing crime, and (4) as a political offense, it is my view that this Court cannot confine the concept of rebellion to the actual exchange of fire between the accused rebels and the forces of the government. As above-intimated, the taking up of arms against the government is only what consummates the crime of rebellion in order to prosecute those accused thereof under the RPC. However, up until that movement stops (for instance, when the rebels surrender or are caught by government operatives), it is my opinion that the rebellion continues to survive in legal existence.
xx xx
[T]he crime of rebellion defies our ordinary impression that a crime's occurrence can be pinpointed to a definite territory, much less its existence bounded to a particular moment in time. Because of its nature, rebellion is hardly compatible with the norms of spatial and temporal limitability, as usually applied in our criminal law. It is in this specific light that we should understand the concept of an actual rebellion under the Constitution's martial law provision.17
As above-highlighted, it has been my position that a rebellion, because of its peculiar conceptual features, survives in legal existence up until the rebellious movement stops, such as when the rebels have already surrendered or that they are caught by government operatives. As it may, however, be impractical, if not impossible, to accurately ascertain if all the members of a rebel movement have surrendered or have been killed or captured at a certain point in time, then a satisfactory showing of the rebel movement's substantial inactivity or loss of capability to mount a public uprising would reasonably suffice.
In this case, however, there is no evidence to show that the rebel movement in Mindanao, comprised of the Maute-Hapilon Group and other rebel groups under the DAESH/ISIS18 front, has been substantially inactive or has lost the capability to mount a public uprising. On the contrary, respondents have competently proven that these rebels have, in fact, regrouped, thereby demonstrating that the rebellion still persists.
Records show that respondents' determination was arrived at based on field reports and technical data coming from no less than the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP). The information gathered by our troops on the ground was then conveyed by the President in his December 8, 2017 letter to Congress:
On 04 December 2017[,] I received a letter from Secretary of National Defense Delfin N. Lorenzana, as Martial Law Administrator, stating that "based on current security assessment made by the Chief of Staff, Armed Forces of the Philippines, the undersigned recommends the extension of Martial Law for another twelve (12) months or one (1) year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other likeminded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless (ALGs), and the communist terrorists (CTs) and their coddlers, supporters, and financiers x x x." A copy of Secretary Lorenzana's letter (together with a copy of the letter of AFP Chief Guerrero) is attached for your convenient reference.19
In the same letter, the President summed up the security assessment of the AFP, as supported by the PNP, into five (5) integral points. These points constitute the reasons which impelled the President to seek a further extension of martial law from January 1, 2018 to December 31, 2018:
The security assessment submitted by the AFP, supported by a similar assessment by the Philippine National Police (PNP), highlights certain essential facts that I, as Commander-in-Chief of all armed forces of the Philippines, have personal knowledge of.
First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained atlarge and, in all probability, are presently regrouping and consolidating their forces.
More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as in their consolidation/ reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole of Southeast Asia.
Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH [Wilayat] in the Philippines and Southeast Asia.
Third, the Bangsamoro Islamic Freedom Fighters (BIFF) [continues] to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato. For this year, the BIFF has initiated at least eighty-nine (89) violent incidents, mostly harassments and roadside bombings against government troops.
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at least forty-three (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly beheaded.
Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NPA) took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule.
x x x x20 (Emphases and underscoring supplied)
Notably, Congress adopted these same considerations as evinced from the text of Resolution of Both Houses No. 4:
WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting, the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters [continues] to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule[.]
As correctly observed by the ponencia, "[t]he reasons cited by the President in his request for further extension [of martial law] indicate that the rebellion, which caused him to issue Proclamation No. 216, continues to exist and its 'remnants' have been resolute in establishing a DAESH/ISIS territory in Mindanao, carrying on through the recruitment and training of new members, financial and logistical build-up, consolidation of forces[,] and continued attacks."21 These "remnants", as explained by the respondents, "are capable of launching retaliatory attacks against the Government and sowing acts of terrorism against the civilian population to wrest control of Mindanao and continue their bid to establish a wilayah in the region. In addition, they have established linkages with other rebel groups such as the BIFF, AKP, ASG, DI Maguid, DI Turaifie who are capable of perpetrating strategic and well-coordinated mass casualty attacks to overthrow the present government."22
As further elaborated upon by the APP during the oral arguments of this case, the manpower of the Daw/ah Jslamiyah, which is the DAESH-affiliate organization in the Philippines responsible for the Marawi Siege and is composed of several local terrorist groups, "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."23 "These newly recruited personalities were motivated by clannish culture as they are relatives of terrorist personalities; revenge for their killed relatives and parents during the Marawi operations; financial gain as new recruits were given an amount ranging from Phpl5,000.00 to Php50,000.00; [and] as radicalized converts."24 Furthermore, the AFP has expressed concerns that "the situation has [in fact] become [more] 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."25
Based on this information, it is thus highly apparent that the rebellion subject of Proclamation No. 216 still persists. Petitioners did not only fail to refute the data presented to this Court by the government, but more so, have mistakenly equated the end of the rebellion with the so-called liberation of Marawi City. While it is true that the President had himself declared the liberation of Marawi City on October 17, 2017,26 this declaration only signifies the fact that the actual firefighting between the rebels and government forces in the said city had been halted. However, as stated in my Separate Opinion in Lagman v. Medialdea, the rebellion survives in legal existence up until the rebellious movement stops.27 The cessation of the actual exchange of fire between the rebels and government forces is not enough to declare an end to the rebellion as these rebels may as well regroup and shore up their strength, as in fact, what happened in this case. Besides, as aptly noted by the ponencia, the announced liberation of Marawi City (on October 17, 2017) was made "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 its monitoring efforts."28 As held in Lagman v. Medialdea, "Congress may take into consideration not only data available prior to, but likewise events supervening the declaration."29
To clarify, these supervening events should not only pertain to the regrouping efforts of the aforestated rebel "remnants" but also the inclusion of other rebel groups, such as the BIFF, the Turaifie Group and the NPA, whose rebellious activities during the supervening period may have amplified - if not, complicated - the situation. As the Constitution reads, the persistence of an invasion or rebellion (together with the public requirement) is sufficient for an extension to be decreed. Nowhere has it been required that the extension should solely relate to the supervening activities of the same rebel group covered by the initial proclamation. If such were the case, then (a) the Constitution would have so stated or the Framers would have so discussed this requirement; or (b) the President would have to impractically issue a separate martial law proclamation just to cover the supervening activities of other rebel groups when, in reality, the government has to deal with the entire impact of a state of rebellion.
Besides, while not specifically identified in Proclamation No. 216, the President mentioned of "other rebel groups" therein and had, in fact, considered the siege of Marawi City as a demonstration of the capability of the Maute Group, as well as of these "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."30 As such, it can be reasonably inferred that the identification of the Maute Group in Proclamation No. 216 was not meant to be exclusive. In this relation, the Court in Lagman v. Medialdea, had, in fact, recognized "the widespread atrocities in Mindanao and the linkages established among rebel groups," concluding that "the armed uprising that was initially staged in Marawi cannot be justified as confined only to Marawi."31 Thus, the President and the Congress' consideration of these other rebel groups, while not specifically named in Proclamation No. 216, should be deemed as reasonable. Finally, while the NPA has been recognized to be a "decades-long rebellion," the ponencia correctly states that its '"intensified' insurgence clearly bears a significant impact on the security of Mindanao and the safety of its people, which were the very reasons for the martial law proclamation and its initial extension."32 Thus, the NPA's inclusion should not render the subject extension void.
III. Public Safety Requires the Extension of Martial Law.
The Constitution not only requires the persistence of rebellion but also, that public safety still requires its extension. As earlier stated, not only does Congress have the power to decide whether or not to extend a proclamation of martial law, it also has the power to dictate the terms of extension, which includes, of course, the extension's length.
In my Separate Opinion in Lagman v. Medialdea, I have discussed that "the second requirement [on public safety] is a more malleable concept of discretion, whereby deference to the prudential judgment of the President, as Commander-in-Chief, to meet the exigencies of the situation should be properly accorded."33 However, I have qualified that "our deference x x x must be circumscribed within the bounds of truth and reason[:]"34 truth relates to the Court's duty to ascertain the veracity of the facts presented by the government, whereas reasonableness may be determined through an overall appreciation of the surrounding circumstances. With respect to the latter, the Court may consider "the reported armed capabilities, resources, influence, and connections of the rebels"; "the historical background of the rebel movement"; and further, "the President's estimation of the rebels' future plan of action. If the estimation, when taken together with all the foregoing factors, does not seem implausible or farfetched, then this Court should defer to the President's military strategy."35
In this case, the President requested Congress to extend martial law over the entire Mindanao from January 1, 2018 to December 31, 2018 based on his prudential estimation that it would take such period of time to quell the rebellion:
A further extension of the implementation of Martial Law and suspension of the privilege of the writ of habeas corpus in Mindanao will help the AFP, the [PNP], and all other law enforcement agencies to quell completely and put an end to the on-going rebellion in Mindanao and prevent the same from escalating to other parts of the country. Public safety indubitably requires such further extension, not only for the sake of security and public order, but more importantly to enable the government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion of a stable socio-economic growth and development.
For all these reasons, I ask 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) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution.36
After due deliberation, Congress had overwhelmingly acceded to this request, thereby showing its deference to the President as this country's chief military strategist:
WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists,' and that public safety indubitably requires the 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 a period of one (1) year from January 1, 2018 to December 31, 2018.37
As explained by Associate Justice Marvic M.V.F Leonen in his Dissenting Opinion in Lagman v. Medialdea, "Congress deals primarily with the wisdom behind the proclamation xx x" and "[m]uch deference is xx x accorded to [it] x x x when it comes to determining the wisdom behind the imposition or continued imposition of martial law or the suspension of the writ."38
The ponencia finds that "[t]he facts as provided by the Executive and considered by Congress amply establish that rebellion persists in Mindanao and public safety is significantly endangered by it."39 As detailed in the ponencia, the following circumstances and events demonstrate the public necessity to extend martial law over the entire Mindanao:
(a) No less than 185 persons in the Martial Law Arrest Orders have remained at large. Remnants of the Hapilon and Maute groups have been monitored by the AFP to be reorganizing and consolidating their forces in Central Mindanao, particularly in Maguindanao, North Cotabato, Sulu and Basilan, and strengthening their financial and logistical capability.
(b) After the military operation in Marawi City, the Basilan-based ASG, the Maute Group, the Maguid Group and the Turaifie Group, comprising the DAESH-affiliate Dawlah Islamiyah that was responsible for the Marawi siege, was left with 137 members and a total of 166 firearms. These rebels, however, were able to recruit 400 new members, more or less, in Basilan, the Lanao Provinces, Sarangani, Sultan Kudarat and Maguindanao.
(c) The new recruits have since been trained in marksmanship, bombing and tactics in different areas in Lanao del Sur. Recruits with great potential are trained in producing Improvised Explosive Devices (IEDs) and urban operations. These new members are motivated by their clannish culture, being relatives of terrorists, by revenge for relatives who perished in the Marawi operations, by money as they are paid ₱15,000.00 to ₱50,000.00, and by radical ideology.
(d) 48 FTFs have joined said rebel groups and are acting as instructors to the recruits. Foreign terrorists, from Southeast Asian countries, particularly from Indonesia and Malaysia, will continue to take advantage of the porous borders of the Philippines and enter the country illegally to join the remnants of the DAESH/ISIS-inspired rebel groups.
(e) In November 2017, 15 Indonesian and Malaysian DAESH-inspired FTFs entered Southern Philippines to augment the remnants of the Maguid group in Sarangani province. In December 2017, 16 Indonesian DAESH-inspired FTFs entered the Southern Philippines to augment the ASG-Basilan and Maute groups in the Lanao province. In January 2018, an unidentified Egyptian DAESH figure was monitored in the Philippines.
(f) At least 32 FTFs were killed in the Marawi operations. Other FTFs attempted to enter the main battle area in Marawi, but failed because of checkpoints set up by government forces.
(g) "The DAESH-inspired DIWM groups and their allies continue to visibly offer armed resistance in other parts of Central, Western and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City." There were actually armed encounters with the remnants of said groups.
(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-Toraype [Turaifie], and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities ·of Davao, Cagayan de Oro, General Santos, Zamboanga, and Cotabato."
(i) The Turaifie [G]roup conducts roadside bombings and attacks against government forces, civilians and populated areas in Mindanao. The group plans to set off bombings in Cotabato.
(j) The Maute Group, along with foreign terrorists, were reported to be planning to bomb the cities of Zamboanga, Iligan, Cagayan de Oro and Davao.
(k) The remaining members of the ASG-Basilan have initiated five violent attacks that killed two civilians.
(1) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula, conducted 43 acts of violence, including IED attacks and kidnapping which resulted in the killing of eight innocent civilians, three of whom were mercilessly beheaded. Nine kidnap victims are still held in captivity.
(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-based ASG to achieve the common goal of establishing a DAESH-ISIS wilayat in Mindanao. This likely merger may spawn retaliatory attacks such as IED bombings, in urban areas, particularly in the cities of Zamboanga, Isabela and Lamitan.
(n) By AFP's assessment, the ISIS' regional leadership may remain in the Southern Philippines and with the defeat of ISIS in many parts of Syria and Iraq, some hardened fighters from the ASEAN may return to this region to continue their fight. The AFP also identified four potential leaders who may replace Hapilon as emir or leader of the ISIS forces in the Philippines. It warned that the Dawlah Islamiyah will attempt to replicate the Marawi siege in other cities of Mindanao and may conduct terrorist attacks in Metro Manila and Davao City as the seat of power of the Philippine Government. With the spotlight on terrorism shifting from the Middle East to Southeast Asia following the Marawi siege, the AFP likewise indicated that the influx of FTFs in the Southern Philippines will persist. The AFP further referred to possible lone-wolf attacks and atrocities from other DAESH-inspired rebel groups in vulnerable cities like Cagayan de Oro, Cotabato, Davao, General Santos, Iligan and Zamboanga.40
Petitioners, for their part, have failed to disprove the occurrence of the foregoing circumstances and events. They instead, harp on the allegation that due to the liberation of Marawi City, martial law is not anymore necessary to preserve the public's safety.41 Clearly, such narrow reasoning cannot prevail over the President and the Congress' holistic appreciation of the case. With intelligence reports showing that the Maute Group has, in fact, regrouped and that other rebel groups have either linked with the DAESH/ISIS front or have taken advantage of the situation and intensified their operations, the threat to public safety undoubtedly remains present. As to whether or not the objective of resolving such threat can be achieved in one (1) year - to my mind - this Court is hardly competent to provide a precise estimation. The Court's task is to determine the sufficiency of the extension's factual basis and in so doing, (a) vet if the facts presented are true, and (b) assess if the decreed extension is reasonable. As earlier intimated, 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. Notably, APP Chief of Staff General Rey Leonardo Guerrero asked this Court during the oral arguments of this case to trust their years of experience on the ground, their expertise in military strategy, and their capacity to make split-second decisions which may spell the difference between life and death.42 In this case, no cogent cause has been shown for this Court to deny this trust to its co-equal branches of government.
Thus, considering that there exists sufficient factual basis to show that the rebellion still persists and that public safety requires the extension of martial law under the terms stated in Resolution of Both Houses No. 4 dated December 13, 2017, I vote to DISMISS the consolidated petitions.
ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
1 There are four (4) petitions filed assailing the martial law extension. The Petition in G.R. No. 235935 was filed on December 27, 2017, while the Petition in G.R. No. 236061 was filed on January 8, 2018. Petitions in G.R. No. 236145 and G.R. No. 236155 were both filed on January 12, 2018.
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 A PERIOD OF ONE (1) YEAR FROM JANUARY 1, 2018 TO DECEMBER 31, 2018."
3 See Annex "A" of Memorandum for the Petitioner in G.R. No. 236145 dated January 24, 2018.
4 Issued on May 23, 2017.
5 See Annex "l" of the Comment of respondents dated January 8, 20-18.
6 See Decision in Lagman v. Medialdea, G.R. Nos. 231658, 231771, and 231774, July 4, 2017. The Resolution on the motion for reconsideration was promulgated on December 5, 2017.
7 See my Separate Opinion in Lagman v. Medialdea, id., p. 22.
8 See Comment of respondents dated January 8, 2018; pp. 8-10; and Memorandum for the Respondents dated January 24, 2018, pp. 38-40.
9 Proclamation No. 216 was to end on July 22, 2017, or the last day of the sixty (60)-day period provided under Section 18, Article VII. Pursuant to Resolution of Both Houses No. 2 dated July 22, 2017, Proclamation No. 216 was originally extended until December 31, 2017.
10 Entitled "RESOLUTION OF BOTH HOUSES EXTENDING UNTIL 31DECEMBER2017 PROCLAMATION No. 216, SERIES OF 2017, ENTITLED "DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS TN THE WHOLE OF MINDANAO."
11 See Annex "B" of the Petition in G.R. No. 235935.
12 See discussions in the Petitions: G.R. No. 235935, pp. 20-25; and G.R. No. 236061, pp. 28-30.
13 THE PRESIDENT. Commissioner Azcuna is recognized.
MR. AZCUNA. Thank you, Madam President.
I would like to offer an amendment to Section 15, line 7 of page 7. After the word "or," insert a comma (,) and add the phrase: AT THE INSTANCE OF THE PRESIDENT, so that the amended portion will read: "may revoke such proclamation or suspension which revocation shall not be set aside by the President, or AT THE INSTANCE OF THE PRESIDENT extend the same if the invasion or rebellion shall persist and public safety requires it.
May we know the reaction of the Committee? The reason for this, Madam President, is that the extension should not merely be an act of Congress but should be requested by the President. Any extension of martial law or the suspension of the privilege of the writ of habeas corpus should have the concurrence of both the President and Congress. Does the Committee accept my amendment?
MR. REGALADO. The Committee accepts that amendment because it will, at the same time, solve the concern of Commissioner Suarez, aside from the fact that this will now be a joint executive and legislative act.
xx xx
MR. OPLE. May I just pose a question to the Committee in connection with the Suarez amendment? Earlier Commissioner Regalado said that that [sic] 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 about 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 there but by giving the final decision to Congress, we are also preserving the idea that the President may not revoke what Congress has decided upon. (II RECORD, CONSTITUTIONAL COMMISSION, 507-509 [July 31, 1986]; emphases and underscoring supplied)
14 See Lagman v. Medialdea, supra note 6, p. 68.
15 II RECORD, CONSTITUTIONAL COMMISSION, 508 (July 31, 1986).
16 Id. at 509.
17 See my Separate Opinion in Lagman v. Medialdea, supra note 6, pp. 16 and 18.
18 Acronym of the group's full Arabic name, al-Dawla al-Islamiya fi al-Iraq wa al-Sham, translated as "Islamic State in Iraq and Syria." (See Letter to Congress of the President dated July 18, 2017, Annex "D" of the Petition in G.R. No. 236145).
19 See Letter dated December 8, 2017 of the President; Annex "E" of the Petition in G.R. No. 236145, p. 2.
20 See id. at 2-3.
21 Ponencia, p. 40.
22 See Memorandum for the Respondents dated January 24, 2018, p. 30.
23 Statement of AFP Deputy Chief of Staff for Intelligence Major General Fernando Trinidad during a Power Point briefing in the Oral Arguments, TSN, January 17, 2018, pp. 58-59.
24 Id.
25 Id. at 60.
26 Petition (G.R. No. 235935), p. 4; Petition (G.R. No. 236061), p. 10; Petition (G.R. No. 236145), p. 5; and Petition (G.R. No. 236155), p. 12.
27 See my Separate Opinion in Lagman v. Medialdea, supra note 6, p. 16.
28 Ponencia, p. 43.
29 See Lagman v. Medialdea, supra note 6, p. 28.
30 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. (See Proclamation No. 216.)
31 See Lagman v. Medialdea, supra note 6, p. 78.
32 Ponencia, p. 49.
33 See my Separate Opinion in Lagman v. Medialdea, supra note 6, p. 12.
34 See id. at 20.
35 See id. at 21.
36 See Letter dated December 8, 2017 of the President, Annex "E" of the Petition in G.R. No. 236145, p. 5.
37 See Resolution of Both Houses No. 4 dated December 13, 2017, Annex "A" of the Memorandum for the Petitioner in G.R. No. 236145.
38 See Dissenting Opinion of Associate Justice Marvic M.V.F. Leonen in Lagman v. Medialdea, supra note 6, p. 20; emphasis and underscoring supplied.
39 Ponencia, p. 57.
40 Id. at 50-53.
41 See Petition (G.R. No. 235935), p. 4; Petition (G.R. No. 236061), p. 10; Petition (G.R. No. 236145), p. 5; and Petition (G.R. No. 236155), p. 12.
42 General [Rey Leonardo] Guerrero:
Thank you, Your Honor. Ifl may be allowed to respond[.]
Yes, Your Honor, it has been a challenge[.] [I]t's been challenging to answer to [sic] your questions propounded here before me because, clearly, Your Honor, what is expected of me is to try to dissect definitions of sections about how the military operates[,] [ w ]hen in truth and in fact, Sir, the military operates in a manner that is hard to explain to legal minds, [and] to people from the other professions. We based our decisions partly on information that we gather[.] [I]n some instances, [they] are imperfect. We take risks[-] calculated risks, and normally we also rely on our gut feel, which is for many people probably would not understand. But our gut feel is based on our years of experience in the field, in combat[,] or we make decisions in a split of a second. Our decision could necessarily result in the loss of lives, destruction of property. This afternoon, Your Honors, we presented to you the reasons why we [are] recommending for the extension of martial law. We provided you with the factual basis of the existence of rebellion in Mindanao. And as to the powers that you are referring to, the powers that we need, it is upon you, what powers you will give us. We are not asking for any powers, Your Honor. But clearly[,] with the implementation of m'artial law, you have been abled us, you have been able to provide us with the much needed support that we have been longing for, for us to be successful in our campaign and we have done that in Marawi. And if you will allow us, we will continue to do that and finish our job. We are not asking for any extra powers, Your Honors.
xx xx
What we are asking is for you to trust us[, t]he people in Marawi, the people in Mindanao[, t]hat we have been able to talk to clearly understand the situation of the military in so far as our performance of our mission is concerned. We hope that your will also understand our situation. xx x. (TSN, Oral Arguments dated July 17, 2018, pp. 157-158.)
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
BERSAMIN, J.:
I CONCUR.
The Majority opinion ably written for the Court by Justice Tijam reflects my personal persuasion that sufficient facts existed to justify the extension for a period of one year of the proclamation of martial law over Mindanao made by the Congress. The continuing existence of actual rebellion has justified the extension.
I write this Separate Opinion to express my views on the nature and coverage of the term appropriate proceedings used in the third paragraph of Section 18, Article VII of the 1987 Constitution, as well as on certain procedural matters dealt with in the Majority opinion that I believe need to be clarified.
Section 18, Article VII of the 1987 Constitution provides:
x x x 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 9f the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis Supplied]
In explaining the nature and scope of this power of the Court to review the factual sufficiency of the Presidential declaration of martial law and the Congressional concurrence to any extension thereto, the Court said in Lagman v. Medialdea (Lagman I):1
All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII (Executive Department) of the 1987 Constitution which provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.'
During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph of Section 18, Article VII is sui generis. It is a special and specific jurisdiction of the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.
The Court agrees.
a) Jurisdiction must be
specifically conferred by the
Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the law. Unless jurisdiction has been specifically conferred by the Constitution or by some legislative act, no body or tribunal has the power to act or pass upon a matter brought before it for resolution. It is likewise settled that in the absence of a clear legislative intent, jurisdiction cannot be implied from the language of the Constitution or a statute. It must appear clearly from the law or it will not be held to exist.
A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the Court to determine the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege of the writ of habeas corpus.
b) "In an appropriate
proceedinb" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII.
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate proceedinb" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a petition for certiorari is whether the respondent has committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is not the proper tool to review the sufficiency of the factual basis of the proclamation or suspension. It must be emphasized that under Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency powers. Put differently, if this Court applies the standard of review used in a petition for certiorari, the same would emasculate its constitutional task under Section 18, Article VII.
In my Separate Opinion in Lagman I, I agreed with the proposition that the appropriate proceeding mentioned in the third paragraph of Section 18, Article VII of the 1987 Constitution is different and distinct from the proceeding relating to the Court's exercise of the power of judicial review, whether traditional or expanded. I explicitly indicated then:
The third paragraph of Section 18 suffices to confer on the Court the exclusive and original jurisdiction to determine the sufficiency of the factual bases of the proclamation of martial law. To equate the appropriate proceeding to the certiorari action authorized under Section 5(1), in relation to the second paragraph of Section 1, is erroneous. As earlier pointed out, the third paragraph of Section 18 defines the legal duty to review the sufficiency of the factual basis for the proclamation of martial law upon the filing of the petition for the purpose by any citizen. The Court has then to discharge the duty.
The silence of Section 5(1) on what the appropriate proceeding is should be of no consequence because Section 5 is not the sole repository of the cases or situations coming under the Court's jurisdiction.
xx xx
The check-and-balance constitutional design set down in Section 18 of Article VII of the 1987 Constitution establishes a structure of collaboration among the three great branches of the Government in the matter of the proclamation of martial law. Although the power of proclaiming martial law over the country or any part of it is exclusively lodged in the President, he or she is nonetheless required to report to Congress on the proclamation, and Congress shall then decide whether to revoke or extend the state of martial law. The Court, being a passive institution, may be called upon to review and determine the sufficiency of the factual basis of the proclamation, and whether the public safety requires it, only upon the petition for the purpose by any citizen.
The invocation of the third paragraph of Section 18 by the petitioning citizen suffices to initiate this Court's power to review the sufficiency of the factual bases of the declaration of martial law. This initiation, which triggers the inquiry or review by the Court, albeit unique, conforms to the constitutional design.
The appropriate proceeding, once commenced, should not focus on whether the President gravely abused his or her discretion or not in determining the necessity for proclaiming martial law. Instead, the 1987 Constitution mandates the Court to examine and sift through the factual basis relied upon by the President to justify his proclamation of martial law and to determine whether the factual basis is sufficient or not. To rule that a finding of grave abuse of discretion is essential is to confine the discharge of the duty by the Court within limits not considered at the time of the ratification of the 1987 Constitution. Doing so may also produce impractical results. Consider this hypothetical scenario. Supposing that the President cites 10 factual bases for his proclamation of martial law, and the Court, upon its assiduous review of the factual bases, considers nine of the 10 as manufactured or fabricated or inadequate, leaving but one as true or authentic. Under the thesis of the OSG, the Court would necessarily nullify the proclamation simply because the President was found to have gravely abused his or her discretion. The Court would thereby act indifferently towards the one true or authentic justification on the ground that the grave abuse of discretion as to the nine tainted the proclamation.
Moreover, the determination of sufficiency or insufficiency of the factual bases for the proclamation of martial law is usually a matter of validating the good judgment of the President of the facts or information known to or made available to him or her. This goes without saying that such facts must have occurred prior to or about the time the determination by the President is made. Whether or not such facts are later shown by subsequent events to be fabricated or false or inadequate is not a decisive factor unless the President is credibly shown to have known of the fabrication or falsity or inadequacy of the factual bases at the time he or she issued the proclamation of martial law. In that situation, the main consideration is definitely not whether or not grave abuse of discretion intervened.
My reading of the third paragraph of Section 18 tells me that the term appropriate proceeding is different from the proceedings or actions that the Court may take cognizance of under Section 5( 1) or Section 1. My foremost reason for so holding is that the third paragraph of Section 1 8 textually mandates the Court to be a trier of facts, an office and function that the Court is not generally called upon to discharge under either Section 5(1) or Section 1. It is true that the Court is not always precluded from reviewing facts. There are occasions when it assumes the role of a trier of facts, like, to name some, in criminal appeals; in appeals from rulings of the Court of Appeals in proceedings for the writ of amparo; or when it sits as the Presidential Electoral Tribunal.
In fine, I deem it to be plainly erroneous to subsume the appropriate proceeding allowed in the third paragraph of Section 18 to the certiorari jurisdiction vested by Section 5(1) in relation to the expanded jurisdiction defined in second paragraph of Section 1.
The Majority opinion adopts several procedural steps that, to me, are not relevant or controlling in this kind of proceedings.
The Majority opinion takes issue with the fact that all petitions except that in G.R. No. 2236145 (Rosales petition) did not implead the Congress despite its being an indispensable party. The Majority opinion states that impleading an indispensable party is jurisdictional, and insists that any proceeding undertaken without an indispensable party is null and void for want of authority to act, not only as to the unimpleaded party but even as to the party impleaded; and that impleading an indispensable party is not a trivial matter.
I do not share the view stated in the Majority opinion.
In my humble view, the requirement of the Rules of Court for the joinder of the indispensable party is not applicable in this kind of proceeding wherein the Court is called upon by the 1987 Constitution to exercise a special and exclusive jurisdiction that is different from the exercise of the Court's judicial power vested under either Section 1, Article VIII or Section 5(1), Article VIII of the 1987 Constitution.
The requirement of impleading an indispensable party, which is found in Section 7, Rule 3 of the Rules of Court, demands that a party in interest without whom no final determination can be had of an action shall be joined either as a plaintiff or a defendant. Hence, the joinder of the indispensable party is mandatory. Without the presence of the indispensable party, no judgment of a court exercising judicial power can attain real finality because the controversy is not at all thereby resolved, or because the relief proper for the case is not granted. The absence of the indispensable party renders all subsequent acts of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.
Yet, the requirement of impleading the indispensable party can be true only in proceedings in which the courts exercise judicial power under either Section 1, Article VIII or Section 5(1), Article VIII of the 1987 Constitution, not to the present proceedings under the third paragraph of Section 18, Article VII of the 1987 Constitution. The distinction arises from the fact that the former are proceedings instituted to resolve actual controversies between litigants holding or asserting adverse rights and interests in property or other matters, while the latter are proceedings that focus only on the determination of the sufficiency of the factual basis for the extension of the declaration of martial law made by the Congress and do not involve any actual controversy or dispute about rights and interests of parties in interest. In short, the present proceedings are not concerned with rights and interests, thereby removing the need for the mandatory impleading of any person or entity.
NONETHELESS, I vote to DISMISS the petitions.
LUCAS P. BERSAMIN
Associate Justice
Footnotes
1 G.R. No. 231658, July 4, 2017.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
MARTIRES, J.:
I vote to dismiss all the petitions.
In his letter1 addressed to President Rodrigo Roa Duterte (President Duterte), thru the Secretary of the Department of National Defense (DND), the Armed Forces of the Philippines (AFP) Chief of Staff General Rey Leonardo B. Guerrero (Gen. Guerrero) recommended, for compelling reasons based on current security assessment, the further extension of martial law and the suspension of the privilege of the writ of habeas corpus for twelve (12) months beginning 1 January until 31 December 2018 in the whole island of Mindanao. The reasons cited by Gen. Guerrero in his letter to justify his recommendation were as follows:
1. The DAESH-inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;
2. Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-Toraifie, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga, and Cotabato;
3. The CTs have been pursuing and intensifying their political mobilization (army, party, and mass base building, rallies, pickets and demonstrations, financial and logistical buildup), terrorism against innocent civilians and private entities, and guerilla warfare against the security sector and public government infrastructures;
4. The need to intensify the campaign against the CTs is necessary in order to defeat their strategy, stop their extortion, defeat their armed component, and to stop their recruitment activities;
5. The threats being posed by the CTs, the ASG, and the presence of remnants, protectors, supporters and sympathizers of the DAESH/DIWM pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery, and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development, and prosperity in Mindanao;
6. The second extension of the implementation of Martial Law coupled with the continued suspension of the privilege of the writ of habeas corpus in Mindanao will significantly help not only the AFP, but also the other stakeholders in quelling and putting an end to the ongoing DAESH-inspired DIWM groups and CT-staged rebellion, and in restoring public order, safety and stability in Mindanao; and
7. In seeking another extension, the AFP is ready, willing and able to perform anew its mandated task in the same manner that it had dutifully done for the whole duration of Martial Law to date, without any reported human rights violation and/or incident of abuse of authority.
On 1 December 2017, DND Secretary Delfin N. Lorenzana (Sec. Lorenzana) wrote President Duterte recommending the further extension of martial law for a period of one year beginning 1 January until 31 December 2018 "covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), the communist terrorists (CTs) and their coddlers, supporters, and financiers, to ensure speedy rehabilitation, recovery and reconstruction efforts in Marawi, and the attainment of lasting peace, stability, economic development, and prosperity in Mindanao."2
In his letter3 dated 8 December 201 7, President Duterte informed the Senate and the House of Representatives about the letters he received from Sec. Lorenzana and Gen. Guerrero. President Duterte stated in his letter that, as Commander in Chief, he has personal knowledge of the security assessment submitted by the AFP and which was supported by a similar assessment by the Philippine National Police (PNP), to wit:
First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained at large and, in all probability, are presently regrouping and consolidating their forces.
More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters, and sympathizers, have been monitored in their continued efforts towards the radicalization/recruitment, financial and logistical build up, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and a Wilayat not only in the Philippines but also in the whole of Southeast Asia.
Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH Wilayat in the Philippines and Southeast Asia.
Third, the Bangsamoro Islamic Freedom Fighters (BIFF) continue to defy the government by perpetrating at least fifteen (15) violent incidents during the martial law period in Maguindanao and North Cotabato. For this year, the BIFF has initiated at least eighty-nine (89) violent incidents, mostly harassment and roadside bombings against government troops.
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at least fortythree (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly beheaded.
Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NP A) took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule.
xxx
Corollary to the above assessments, President Duterte asked that the Congress further extend 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) year, i.e., from 1 January to 31 December 2018, or for such other period of time as the Congress may determine in accordance with Section (Sec.) 18, Article (Art.) VII of the 1987 Constitution. President Duterte offered the following explanation:
A further extension of the implementation of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao will help the AFP, the x x x PNP, and all other law enforcement agencies to quell completely and put an end to the ongoing rebellion in Mindanao and prevent the same from escalating to other parts of the country. Public safety indubitably requires such further extension, not only for the sake of security and public order, but more importantly to enable the government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion of a stable socio-economic growth and development.
In the Resolution of Both Houses (RBH) No. 4,4 dated 13 December 2017, the Senate and the House of Representatives approved President Duterte's request for another extension of martial law and the suspension of the privilege of the writ of habeas corpus for the period 1 January to 31 December 2018.
Hence, the present petitions.
In G.R. No. 235935, petitioners anchored their petition on the following:
I.
The leadership and supermajority of both chambers of the Congress of the Philippines baselessly and with brazen alacrity acceded to the President's initiative of extending the duration of martial law in Mindanao for one full year by relying on the mere say-so of the military and police authorities on the purported "continuing rebellion" by remnants of terrorist groups in Mindanao.
II.
The leadership of the House of Representatives and of the Senate, as supported by the supermajority, unduly constricted the period of deliberation and interpellation on the President's request for extension of martial law to an indecent three hours and 35 minutes for considering favorably an extension which will endure for 8, 760 hours in 2018 in the entire Mindanao.
III.
The threats of violence and terrorism alleged by the President, Philippine National Police (PNP) and Armed Forces of the Philippines (AFP) from remnants of the terrorist groups do not constitute a constitutional ground for the re-extension of martial law in Mindanao.
IV.
The extension of one year from January 1, 2018 to December 31, 2018 of the period of martial law in Mindanao defies the Constitution's unmistakable mandate of a limited duration of the declaration of martial law and its extension.
V.
The leadership and supermajority of both Chambers of the Congress of the Philippines wantonly violated and exceeded the congressional authority under the Constitution for a one-time extension of the original proclamation (Proclamation No. 216), and not to re-extend a previous extension or grant a series of extensions amounting to "perpetuity."
VI.
Verily, the approval of the extension of martial law and the suspension of the writ of habeas corpus in Mindanao utterly lacks sufficient factual basis because there is no actual rebellion in Mindanao and the re-extension is extremely long even as the approval was made with undue haste and unscrupulous imprudence.
VII.
The leadership and supermajority of both Chambers of the Congress of the Philippines in extending martial law and the suspension of the writ of habeas corpus in Mindanao committed grave abuse of discretion amounting to lack or excess of jurisdiction.
VIII.
While martial law does not confer any significant additional powers to the President as well as to the military and police establishments, its imposition and extension emboldens government forces to indiscriminately attack and kill perceived enemies of the State and conduct warrantless arrests, searches and seizures even as the civilian courts are functioning.
IX.
Without extending martial law in Mindanao, the President has the constitutional power as Commander in Chief to call out all the armed forces to prevent or suppress lawless violence, invasion or rebellion in Mindanao.
In G.R. No. 236061, petitioners raised this sole issue:
THE PRIMORDIAL ISSUE IS WHETHER THERE IS SUFFICIENT FACTUAL BASIS FOR THE ONE-YEAR EXTENSION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE ENTIRE MINDANAO.
Petitioners in G.R. No. 236145 tried to fortify their petition through the following premises:
I.
THE INST ANT PETITION SATISFIES THE REQUISITES FOR THE EXERCISE OF THE HONORABLE COURT'S POWER OF JUDICIAL REVIEW.
II.
THE HONORABLE COURT MUST TEST THE CONSTITUTIONALITY OF THE EXTENSION OF PROCLAMATION NO. 216 IN ACCORDANCE WITH THE MEANING AND PURPOSE OF MARTIAL LAW AS INTENDED BY THE CONSTITUTIONAL COMMISSION, AND AS ARTICULATED BY THE HONORABLE COURT IN LAGMAN V MEDIALDEA.
III.
ABSENT AN ACTUAL INVASION OR REBELLION, THERE CAN BE NO SUFFICIENT FACTUAL BASIS FOR THE CONTINUED IMPOSITION OF MARTIAL LAW IN MINDANAO
In G.R. No. 236155, the petitioners raised the following justifications to grant their petition, to wit:
A.
THE HONORABLE COURT HAS THE POWER AND CONSTITUTIONAL MANDA TE TO INDEPENDENTLY DETERMINE THE SUFFICIENCY OF THE FACTUAL BASES FOR THE EXTENSION OF PROCLAMATION NO. 216 AND IF IT SO DETERMINES, NULLIFY THE SAME.
B.
THE PRESIDENT'S REQUEST FOR, AND CONGRESS' SUBSEQUENT JOINT RESOLUTION TO FUTHER EXTEND THE EFFECTIVITY OF PROCLAMATION NO. 216 UNTIL 31 DECEMBER 2018, LACK SUFFICIENT FACTUAL BASIS, AND ARE THEREFORE NULL AND VOID.
DISCUSSION
The President is
immune from suit
during his tenure.
We note that in G.R. Nos. 236061 and 236145, President Duterte was named as a respondent.
Jurisprudence dictates that the presidential immunity from suit remains preserved in the system of government of this country, even though not expressly reserved in the 1987 Constitution.5 Addressing a concern of his co-members in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas, SJ., observed that it was already understood in jurisprudence that the President may not be sued during his or her tenure.6 The President is granted the privilege of immunity from suit to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that the position of Chief Executive of the Government requires all of the office-holder's time and demands undivided attention to his duties as Head of State.7 This ruling was further amplified in David v. Macapagal-Arroyo,8 viz:
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment.
Considering the foregoing, President Duterte should be dropped as respondent in G.R. Nos. 236061 and 236145.
The act of declaring
martial law differs from
the act of extending
martial law.
Sec. 18, Article VII of the 1987 Constitution reads:
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 public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
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.
The act pertaining to the declaration of martial law differs from the extension of martial law. The act of declaring martial law is an executive act, i.e., the President as the Commander in Chief of all armed forces of the Philippines, whenever it becomes necessary, may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. The act of declaring martial law is the sole prerogative of the President.
The act of extending martial law on the one hand, is a joint executivelegislative act brought into motion by the initiative of the President. The extension of martial law is given life because the Congress voting jointly, by a vote of at least a majority of all its Members in regular or special session, has determined that actual invasion or rebellion persists, and that public safety requires it. This conforms to the constitutional requirement that it should be "in the same manner" that the Congress undertook its legislative review of the declaration of martial law that it should determine whether or not to extend martial law. It must be stressed, however, that Congress cannot motu proprio extend martial law as it must first await the request of the President stating the need for the extension, i.e., upon the initiative of the President.
On record is Proclamation No. 2169 issued by President Duterte, on 23 May 2017, through Executive Secretary Salvador Medialdea, declaring the state of martial law in the Mindanao group of islands for a ,period not exceeding sixty days.10 On the one hand, in view of the President's initiative, the Congress issued RBH Nos. 2 and 411 whereby the Senate and the House of Representatives resolved to further extend Proclamation No. 216 until 31 December 2017, and from 1 January to 31 December 2018, respectively.
The act of declaring martial law is subject to an automatic review by Congress, i.e., 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. Hence, extant from the records are Senate Resolution No. 4912 and House Resolution No. 105013 which documented the final determination of both bodies, in the exercise of their automatic review power, not to revoke Proclamation No. 2016.
Since the matter of extending martial law is an act of Congress, it would be absurd that the same body would subject its determination to its own review. It is only logical to deduce that the Congress, voting jointly, had already threshed out all the issues and concerns before coming to a decision on whether or not to extend martial law.
The duration of martial law as declared by the President should not exceed sixty (60) days, while the life span of an extension of martial law would be subject to its determination by Congress. But whether it is an executive or joint executive-legislative act, martial law can only be justified by the existence of an actual invasion or rebellion and that public safety should require it. It is in this stage that the wisdom of the Court is summoned when it is asked to review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the extension thereof. Thus, whether it is an executive act of declaration of martial law or the executive-legislative act for the extension thereof, the Court can always be called upon to review the sufficiency of the factual basis of the proclamation or extension of martial law.
The requisites for the
extension of martial law
Considering that the term "rebellion" has not been defined in the Constitution, the Court has deferred to the definition in the Revised Penal Code, viz:
Art. 134. Rebellion or insurrection; How committed - The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
In Lagman v. Medialdea,14 the Court held that for rebellion to exist the following must be present: (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.
The Court has ruled 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."15 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 xx x by the accused."16 It is in view of this required standard that the Court established the metes and bounds to determine the sufficiency of the factual basis of martial law, viz: 1) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion.17
Having ascertained that it is upon the initiative of the President that Congress undertake a determination on whether the extension of martial law is warranted, the issue that comes to the fore is the resolution of the parameter that should be observed by the august body in making such determination.
To restate, Sec. 18, Art. VII of the 1987 Constitution provides: "x x x Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it." In observing this provision, there is certainty that the same parameter used in determining the sufficiency of factual basis in the declaration of martial law equally applies to its extension, i.e., 1) actual rebellion or invasion persists as required by the Constitution; 2) public safety requires the extension, with the first two requirements present; and 3) there is probable cause for the President and the Congress to believe that actual rebellion or invasion persists.
a. Actual rebellion persists.
Petitioners invariably claim that there is no actual rebellion to support the extension of martial law.
It must be emphasized that in extending martial law, the President and the legislators need only to convince themselves that there is probable cause or evidence showing that more likely than not the rebellion persists.
In his letter dated 8 December 2017, President Duterte stated that the grounds on which he anchored his request for the extension of martial law from 1 January to 31 December 2018 were based on the security assessment submitted by the AFP and the PNP. He claims that he has personal knowledge of the circumstances constituting the security assessment. He clearly acknowledged the persistence of rebellion when he stated that the extension of martial law and the suspension of the writ of habeas corpus will help the AFP, the PNP, and other law enforcement agencies to quell completely the ongoing rebellion in Mindanao and prevent its escalation to other parts of the country. Additionally, the recent developments involving the National Democratic Front, the Communist Party of the Philippines, and the New People's Army (NDF-CPP-NPA) portend intensified armed hostilities, which together with the other security concerns continue to make Mindanao a hotbed for rebellion.
On the one hand, after four hours of discussion and extensive debate, the Congress, in a joint session with two hundred forty affirmative votes comprising the majority of all its members, determined that rebellion persists and that public safety indubitably required the further extension of martial law.18
At this point, there is a need to repeat the ruling in Lagman that "the purpose of judicial review is not the determination of accuracy or veracity of the facts upon which the President anchored his declaration of martial law or suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency of the factual basis as to convince the President that there is probable cause that rebellion exists." That same purpose applies to the present judicial review insofar as it would determine the sufficiency of the factual basis as to convince the President and the Congress that there is probable cause that rebellion persists.
The records confirm that the President and the Congress have separately determined and were convinced that rebellion persists in Mindanao. The Court cannot supplant its own findings with those made by the President and the Congress because to do so would be tantamount to encroaching on the well-safeguarded and independent dominion of the executive and the legislature.
The contention of the petitioners that the President should have exercised his extraordinary power of calling out the armed forces instead of requesting the extension of martial law, has no basis. The Court cannot tread on this issue as it clearly recognizes that its power of judicial review does not extend to calibrating the President's decision as to which extraordinary power to avail of given a set of facts or conditions. To do so would be an incursion into the exclusive domain of the executive and an infringement on the prerogative that solely, at least initially, lies with the President.19
In the same vein, the issue as to the duration of the martial law extension is better left to the decision of the Congress considering that the Constitution plainly provides that the august body, in resolving whether or not to extend martial law, shall likewise determine the period for the extension.
The contention that the congressional authority is for a one-time extension of the original proclamation, is without basis. A reading of Sec. 18, Art. VII of the 1987 Constitution evinces that there is nothing that would indicate such limitation. For sure, even the contention that the series of extensions may amount to "perpetuity" is specious considering that there are established parameters for Congress in extending martial law, which extension may even be subject to the Court's judicial review.
b. Public safety requires the
extension of martial law.
"Public safety, which is another component element for the declaration of martial law, 'involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/hann, or damage, such as crimes or disasters.' Public safety is an abstract term; it does not take any physical form. Plainly, its range, extent or scope could not be physically measured by metes and bounds."20
The letter of Pres. Duterte detailing the security assessment by the AFP and the PNP satisfies the public safety requirement for the extension, viz:
First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained at large and, in all probability, are presently regrouping and consolidating their forces.
More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters, and sympathizers, have been monitored in their continued efforts towards the radicalization/recruitment, financial and logistical buildup, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and a Wilayat not only in the Philippines but also in the whole of Southeast Asia.
Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH Wilayat in the Philippines and Southeast Asia.
Third, the Bangsamoro Islamic Freedom Fighters (BIFF) continue to defy the government by perpetrating at least fifteen (15) violent incidents during the martial law period in Maguindanao and North Cotabato. For this year, the BIFF has initiated at least eighty-nine (89) violent incidents, mostly harassments and roadside bombings against government troops.
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at least forty-three (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly beheaded.
Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NPA) took advantage of the situation and intensified their decades long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule. (italics supplied)
Petitioners averred that even President Duterte, in his letter requesting for the extension of martial law, referred to "remnants" of the terrorist groups purportedly recruiting fighters to launch new attacks. Petitioners claimed that "(A)lmost comically, martial law is extended in Mindanao to subdue residual phantoms."
True, the word "remnants" was used by President Duterte in his letter, but this does not mean that the remaining forces of the terrorist groups were not as powerful, or even more powerful as its founders and original fighters. It cannot even be validly claimed that the resolve of the "remnants" to establish a global Islamic caliphate and a Wilayat had lessened or was completely shattered when the DAESH-inspired fighters and their leaders were neutralized. On the contrary, the death of their fighters and leaders could even have wrongly enlightened the remnants of the alleged nobleness of their cause and would have converted this belief into a stronger resolve to continue to fight the government.
The remnants are not specters who do not deserve any attention from the government. The immense havoc created by the DAESH-inspired DIWM, BIFF, and ASG in Marawi is real. The huge number of dead civilians and military personnel, and the vast amount of funds needed to rebuild Marawi cannot be denied. There is the lingering plausibility that greater massive destruction would result after these groups would have regrouped and consolidated their forces. There is even the possibility that the NDF-CPP-NPA, which have successfully sown acts of terrorism in different parts of the country, and the Turaifie group, the potential successor of Hapilon as Amir of DAESH Wilayat in the Philippines and in Southeast Asia, would join the remnants, albeit these groups do not gravitate towards the same goal. And with the assistance of well-funded and highly equipped foreign terrorist groups, it is undeniable that the "remnants" would be a formidable force to reckon with.
Equally significant is the actual need of the government to forthwith contain these terrorist groups in specific areas rather than allow them all over the country. It cannot be denied that it took the government five months to neutralize the DAESH-inspired fighters despite the fact that the terrorist attacks were mostly confined in Marawi. The number of dead civilians and military personnel as well as the huge amount of funds needed to weed out the terrorist groups easily defused whatever victory the government had claimed in neutralizing this terrorist group. Indeed, the ruins in Marawi are painful reminders to the government that its success sadly mirrors the great failures behind it.
The volatile situation in Mindanao right now spawns a good breeding ground for terrorists and their coddlers, supporters, and financiers. The government cannot sit idly by and wait for these terrorist groups to make their move. The arduous task of crushing the terrorist groups must start posthaste otherwise, another victory, though bittersweet it may be, may not be possible at all for the government if these groups are allowed to proliferate all over the country.
The Court has emphasized that time is paramount in situations necessitating the proclamation of martial law or suspension of the privilege of the writ of habeas corpus.21 Considering that an extension of martial law is ineludibly moored on the existence of an actual rebellion that persists and that public safety requires it, there is a paramount urgency for the President and Congress to act quickly to protect the country.
c. There is probable
cause for the
President and the
Congress to believe
that actual rebellion
persists.
Records will confirm that both the President and the Congress have separately determined whether actual rebellion persists in Mindanao, and in the process are convinced that there exists probable cause that actual rebellion persists. Worth noting, the President has a wide range of information available to him, and that he 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.22 The President has the prerogative to share these information with Congress in fortifying his request for the extension of martial law, which information the Court may not even be privy to. Likewise, the Court does not have the same resources available to the President; thus, it is restrained in the exercise of its judicial review power not to "undertake an independent investigation beyond the pleadings."23
In stark contrast, petitioners have miserably failed to present evidence that would controvert the records that have swayed the President and the Congress to conclude that rebellion persists.
In fine, the President and the Congress have successfully discharged their burden as to the sufficiency of the factual basis that convinced them that there was probable cause that rebellion persists.
Judicial review of the
declaration of martial
law and its extension is
pursuant to Sec. 18, Art.
VII of the 1987
Constitution.
J urisprudence24 has settled that the "appropriate proceedinm" referred to in Sec. 18, Art. VII of the 1987 Constitution does not refer to a petition for certiorari pursuant to Sec. 1 or 5 of Art. VIII, viz:
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate proceedinm" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a petition for certiorari is whether the respondent has committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is not the proper tool to review the sufficiency of the factual basis of the proclamation or suspension. It must be emphasized that under Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency powers. Put differently, if this Court applies the standard of review used in a petition for certiorari, the same would emasculate its constitutional task under Section 18, Article VIL
Clearly, petitioners erred when they invoked Sections 1 or 5, Article VIII of the 1987 Constitution in mooring their assertion that the Senate and the House of Representatives committed grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of their functions.
Congress is clothed by
the Constitution with the
authority to determine
its rules of proceedings.
Sec. 16(3), Art. VI of the 1987 Constitution reads:
(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.
It was obviously pursuant to this constitutional provision that the Congress had adopted the rules that governed the Joint Session when it resolved to extend martial law from 1 January to 31 December 2018. Accordingly, the issues raised by the petitioners insofar as they are specifically anchored on the propriety of the rules, are beyond the judicial review of this Court, viz:
The Constitutional right of the Senate to promulgate its own rules of proceedings has been recognized and affirmed by this Court. Thus:
First. Section 16(3), Article VI of the Philippine Constitution states: "Each House shall determine the rules of its proceedings."
This provision has been traditionally construed as a grant of full discretionary authority to the 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.
x x x. The issue partakes of the nature of a political question which, under the Constitution, is to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Further, pursuant to his constitutional grant of virtually unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication.
The only limitation to the power of Congress to promulgate its own rules is the observance of quorum, voting, and publication when required. As long as these requirements are complied with, the Court will not interfere with the right of Congress to amend its own rules.25 (emphasis supplied)
Petitioners can very well raise the issue on the propriety of the rules of Congress or violation thereof by its members in a proper proceeding, but definitely the present petitions filed pursuant to the Sec. 18, Art. VII of the 1987 Constitution could not be the proper vehicle.
It is for this reason that the Court necessarily has to defer to its abovequoted ruling and decline to rule on whether Congress committed grave abuse of discretion in extending martial law.
Finally, the query: Who is afraid of martial law?
The fear that the present martial rule in Mindanao may lead to a dictatorial regime similar to what transpired when the late President Ferdinand Marcos declared martial law in the entire Philippines in 1972 is speculative and unfounded. The factual milieu and legal environment surrounding the present martial law in Mindanao are totally different from those prevailing during martial rule in 1972.
The declaration of martial law in 1972 was premised on the alleged intensified communist insurgency and perceived threat by the NP A as shown by the alleged series of bombings and assassination attempts throughout the country.26 This was permitted by Article VII, Section 11 of the 1935 Constitution which provided for justifications for declaration of martial law not present under the 1987 Constitution. In particular, under the 1935 Constitution, the President of the Philippines, as Commander in Chief of the armed forces, may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law when there is lawless violence, invasion, insurrection, or rebellion, when the public safety requires it.
On the other hand, the present martial law in Mindanao is based on the actual threat presented by a local terrorist group aligned with a foreign terrorist organization when they attacked government and other vital facilities, and took over Marawi City. These facts led President Duterte to believe that there was an armed public uprising with the purpose of removing a portion of the territory of the Republic of the Philippines from its allegiance thereto.27
Further, while Article VII, Section 11 of the 1935 Constitution gave the President virtually unbridled powers under Martial Law, the same cannot be said under the present Constitution.
Indeed, the unrestricted commander in chief powers under the 193 5 Constitution allowed then President Marcos to, among others, place the entire Philippines under martial law for more than eight (8) years from 23 September 1972, until it was officially lifted on 17 January 1981, with the issuance of Proclamation No. 2045, series of 1981; to arrogate unto himself the powers of the legislature; and to authorize military courts to have jurisdiction over civilians. The opportunities for such abuses have been curtailed by the present Constitution.
The 1987 Constitution has already established sufficient safeguards and parameters to prevent government abuse during martial law from happening again.
First, the 1987 Constitution mandates that any declaration of martial law shall be valid only for sixty (60) days and any extension thereof shall require the concurrence of Congress voting jointly, by a vote of at least a majority of all its members.28 The present martial law in Mindanao was extended twice following this rule.
Second, the President, even during the effectivity of martial law, cannot assume the legislative powers of Congress, or give the military courts jurisdiction over civilians because a state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.29 And in such instance where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those judicially charged with rebellion or offenses connected with invasion.30
The President, through the DND, recognized such limitation and even reminded the Armed Forces of the Philippines, through its Chief of Staff, that "any arrest, search, and seizure executed or implemented in the area or place where Martial Law is effective, including the filing of charges, should comply with the Revised Rules of Court and applicable jurisprudence."31 This directive only indicates the disposition and willingness of the present administration to follow the rule of law despite the declaration of martial law, and there is no reason for the Court to believe otherwise, unless convincing evidence to the contrary is shown.
In fine, the extraordinary powers enjoyed by President Marcos during the 1972 martial law are no longer available under the 1987 Constitution and therefore could not be applied by President Duterte. Any submission that the present martial rule in Mindanao may just be the means to start a dictatorial regime is speculative at best.
SAMUEL R. MARTIRES
Associate Justice
Footnotes
1 Annex "C-2" of the Petition in G.R. No. 235935.
2 Annex "C-1" of the Petition in G.R. No. 235935.
3 Annex "E" of the Petition in G.R. No. 236145.
4 Annex "5" to the Consolidated Comment of the Office of the Solicitor General in G.R. Nos. 236061, 236145, and 236155.
5 Aguinaldo v. Aquino, G.R. No. 224302, 29 November 2016.
6 Rubrico v. Macapagal-Arroyo, 627 Phil. 37 (2010).
7 Aguinaldo v. Aquino, supra note 5.
8 522 Phil. 705 (2006).
9 Entitled "Declaring a State of Martial Law and Suspending the Writ of Habeas Corpus in the whole of Mindanao."
10 Annex "l" to the Comment of the Office of the Solicitor General in G.R. No. 235935.
11 Entitled "Resolution of both Houses Further Extending Proclamation No. 216, series of 2017, Entitled 'Declaring a State of Martial Law and Suspending the Writ of Habeas Corpus in the whole of Mindanao' for a period of one year from January 1, 2018 to December 31, 2018."
12 Entitled "Resolution expressing the sense of the Senate not to revoke at this time Proclamation No. 216, series of 2017 Entitled 'Declaring a State of Martial Law and Suspending the Writ of Habeas Corpus in the whole of Mindanao.'"
13 Entitled "Resolution 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 Writ of Habeas Corpus in the whole of Mindanao."'
14 G.R. No. 231658, 4 July 2017.
15 Id.
16 Id., citing the dissenting opinion of J. Carpio in Fortun v. President Macapagal-Arroyo, 684 Phil. 526 (2012).
17 Id.
18 RBH No. 4, supra note 4.
19 Lagman v. Medialdea, supra note 14.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Pimentel v. Senate Committee of the Whole, 660 Phil. 202(2011).
26 Proclamation No. 1081, series of 1972.
27 Lagman v. Medialdea, supra note 14.
28 1987 Constitution, Article VII, Section 18, par. I.
29 Sec. 18, par. 4, Art. VII of the 1987 Constitution.
30 Lagman v. Medialdea, supra note 14.
31 Department of National Defense Memorandum, dated 24 May 2017.
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